Kodo Construction, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 29, 2018367 NLRB No. 29 (N.L.R.B. 2018) Copy Citation 367 NLRB No. 29 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Kodo Construction, Inc. and Washington and North- ern Idaho District Council of Laborers. Case 19–CA–159674 October 29, 2018 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge and an amended charge filed by the Washington and Northern Idaho District Council of Laborers (the Union) on Sep- tember 9 and November 25, 2015, respectively, the Gen- eral Counsel issued a complaint on December 31, 2015, against Kodo Construction, Inc. (the Respondent), alleg- ing that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The Respondent failed to file an answer. On February 2, 2016, the General Counsel filed a Mo- tion for Default Judgment with the Board.1 Thereafter, on February 4, 2016, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that, unless an answer was received by January 14, 2016, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allegations in the General Coun- sel’s motion disclose that by letter dated January 21, 2016, the Region advised the Respondent that unless an answer was filed by January 28, 2016, a motion for de- fault judgment would be filed. The Respondent again failed to file an answer.2 1 On May 24, 2016, the General Counsel submitted a supplement to his motion for default judgment with information related to the service of documents in this case. 2 The motion for default judgment indicates that the charge and amended charge were served by regular mail to the Respondent’s mail- ing address. The motion for default judgment and the supplement to In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the Gen- eral Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Washington corporation with an office and place of busi- ness in Auburn, Washington (the facility) and has been engaged in the construction industry as a cement contrac- tor. During the 12 months preceding issuance of the com- plaint, the Respondent, in conducting its business opera- tions, had gross revenues valued in excess of $500,000. During the 12 months preceding issuance of the com- plaint, the Respondent, in conducting its business opera- tions, purchased and received goods at its facility valued in excess of $50,000 directly from points outside the State of Washington. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. the motion indicate that the complaint was served by certified mail to the Respondent’s mailing address. In addition, the motion for default judgment was served by mailing copies by regular mail to the Re- spondent’s mailing address and also by electronic mail to the Respond- ent. There is no indication that any of these mailings sent to the Re- spondent were unclaimed or returned. Subsequently, the complaint was resent by certified mail to the Re- spondent’s mailing address, and tracking information provided by the U.S. Postal Service shows that document was unclaimed. The com- plaint and the motion for default judgment were then resent by certified mail to both the Respondent’s street address and the Respondent’s previous mailing address. In addition, the supplement to the motion for default judgment was sent by certified mail and regular mail to the Respondent’s mailing address, street address, and previous mailing address and also by electronic mail. There is no indication that any of these mailings were unclaimed or returned. Moreover, at the time the General Counsel filed its motion for default judgment, the Washington Secretary of State website listed the Respondent’s street address as the address for the Respondent’s registered agent and the Respondent’s mailing address as an additional address for the Respondent, and it still has the Respondent’s registered agent as having the same street and mailing addresses previously listed for the Respondent. It is well settled that a respondent’s failure or refusal to accept certi- fied mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act. See Cray Construction Group, LLC, 341 NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2 (2003). Further, the failure of the postal service to return documents served by regular mail indicates actual receipt of those documents by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 II. ALLEGED UNFAIR LABOR PRACTICES 1. At all material times, Amine Ghedamsi has held the position of the Respondent’s owner and president and has been a supervisor of the Respondent within the meaning of Section 2(11) and/or an agent of the Re- spondent within the meaning of Section 2(13) of the Act. 2. About June 1, 1983, the Respondent, an employer engaged in the building and construction industry, en- tered into a Laborers Compliance Agreement (the Com- pliance Agreement), which, at all material times, bound the Respondent to, among other agreements, the West- ern/Central Washington Master Labor Agreement (the Western/Central Master Agreement) between the Associ- ated General Contractors of Washington and the Union. 3. By the Compliance Agreement and the West- ern/Central Master Agreement, the Respondent agreed to be bound to future Western/Central Master Agreements unless timely notice was given. 4. The employees of the Respondent identified in the Compliance Agreement (the unit) constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By entering into the Compliance Agreement, the Respondent recognized the Union as the limited exclu- sive collective-bargaining representative of the unit without regard to whether the Union’s majority status had ever been established under Section 9(a) of the Act.3 Such recognition has been embodied in successive col- lective-bargaining agreements, the most recent of which is effective by its terms from June 1, 2015, through May 31, 2018. 6. Since about April 10, 2015, the Union has request- ed in writing that the Respondent furnish it with the fol- lowing information: (a) The total number of projects that your company is working on; (b) The name, address, and total number of employees performing work under Article 2 of the West- ern/Central Washington Master Labor Agreement for each project; 3 The complaint alleges that the Respondent is a construction indus- try employer and that it granted recognition to the Union without regard to whether the Union had established majority status. Accordingly, we find that the relationship was entered into pursuant to Sec. 8(f) of the Act and that the Union is therefore the limited 9(a) representative of the unit employees for the period covered by the contract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012, 1012 fn. 2 (1994), citing Electri-Tech, Inc., 306 NLRB 707, 707 fn. 2 (1992), and John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F. 2d 770 (3d Cir. 1988). (c) The name, address, and contact perform [sic] for the General Contractor for each project; and (d) The name, address, and contact information for each employee. 7. The information requested by the Union, as de- scribed above in paragraph 6, is necessary for, and rele- vant to, the Union’s performance of its duties as the lim- ited exclusive collective-bargaining representative of the unit. 8. Since about April 10, 2015, the Respondent has failed and refused to furnish the Union with the infor- mation it requested as described above in paragraph 6. 9. About June 1, 2015, the Respondent ceased to as- sign work to its unit employees. 10. About June 1, 2015, the Respondent ceased to ob- tain qualified applicants from the applicable local union office to perform unit work. 11. Since about June 1, 2015, the Respondent has failed and/or refused to continue in effect the terms and conditions of employment of the unit contained in the Western/Central Master Agreement effective from June 1, 2015, through May 31, 2018, to which it is signatory, by failing and/or refusing to make payments to the West- ern Washington Laborers-Employers Pension Trust. 12. The terms and conditions of employment, as de- scribed above in paragraphs 9–11, are mandatory sub- jects for the purposes of collective bargaining. 13. The Respondent engaged in the conduct, as de- scribed above in paragraphs 9–11, without providing the Union with notice and/or an opportunity to bargain over such subjects.4 14. Since about June 16, 2015, the Respondent has re- pudiated its collective-bargaining relationship, the Com- pliance Agreement, and the Western/Central Master Agreement with the Union. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the Union as the limited exclusive collec- tive-bargaining representative of its unit employees with- 4 The complaint alleges that the Respondent unlawfully made changes in terms and conditions of employment without affording the Union notice and an opportunity to bargain. We note, however, that changes in contractual terms and conditions during the term of the collective-bargaining agreement, such as the discontinuation of pay- ments to the Pension Trust, require the consent of the Union. See, e.g., Columbus Show Case Co. d/b/a CSC Worldwide, 362 NLRB No. 765, 766 (2015); GDT Electrical, Inc. d/b/a Gardner Electrical Corp., 356 NLRB No. 154, slip op. at 3 (2011) (not reported in Board volumes). This discrepancy in the complaint has no effect on our decision here, however, because the Respondent failed to satisfy even the less de- manding standard. KODO CONSTRUCTION, INC. 3 in the meaning of Section 8(d) of the Act and in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with rel- evant and necessary information requested on April 10, 2015, we shall order the Respondent to provide the Un- ion with the requested information. Further, having found that the Respondent violated Section 8(a)(5) and (1) of the Act by ceasing to assign work to its unit employees and to obtain qualified appli- cants from the applicable local union office to perform work, we shall order the Respondent to rescind those actions. We shall also order the Respondent to make unit em- ployees and hiring hall applicants whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accord- ance with King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), we shall also order the Respondent to compensate affected unit employees and applicants for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-for- work and interim employment expenses shall be calcu- lated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. We shall also order the Respondent to compensate unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards and file with the Regional Director for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee, in ac- cordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Having found that the Respondent violated Section 8(a)(5) and (1) by failing to remit contributions to the Western Washington Laborers-Employers Pension Trust on behalf of unit employees since about June 1, 2015, as required by the Western/Central Master Agreement, we shall order the Respondent to make whole its unit em- ployees by making all such delinquent fund contributions on behalf of unit employees that have not been made since that date, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Further, the Respondent shall be required to reimburse unit employees for any expenses ensuing from its failure to make the required fund contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra.5 Additionally, we shall order the Respondent to rescind the actions taken that have been found herein to consti- tute repudiation of the Compliance Agreement and the Western/Central Master Agreement, to recognize and bargain in good faith with the Union as the limited exclu- sive collective-bargaining representative of the employ- ees in the unit, and to give full force and effect to the terms and conditions of employment provided in the Compliance Agreement and the Western/Central Master Agreement effective from June 1, 2015, through May 31, 2018, and any automatic extensions thereof. ORDER The National Labor Relations Board orders that the Respondent, Kodo Construction, Inc., Auburn, Washing- ton, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Washing- ton and Northern Idaho District Council of Laborers (the Union) by failing and refusing to furnish it with request- ed information that is relevant and necessary to the Un- ion’s performance of its functions as the limited exclu- sive collective-bargaining representative of the Respond- ent’s unit employees. (b) Changing the terms and conditions of employment of its unit employees by ceasing to assign work to unit employees and to obtain qualified applicants from the applicable local union office to perform unit work. 5 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent's delin- quent contributions, during the period of delinquency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 (c) Failing and refusing to continue in effect the terms and conditions of employment of its unit employees con- tained in the Laborers Compliance Agreement (the Com- pliance Agreement) and the Western/Central Washington Master Labor Agreement (the Western/Central Master Agreement) effective from June 1, 2015, through May 31, 2018, to which it is signatory, and any automatic ex- tensions thereof, by failing and/or refusing to make pay- ments to the Western Washington Laborers-Employers Pension Trust. (d) Repudiating its collective-bargaining relationship, the Compliance Agreement, and the Western/Central Master Agreement during the term of the Compliance Agreement and the Western/Central Washington Master Labor Agreement effective from June 1, 2015, through May 31, 2018, and any automatic extensions thereof, with the Union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish to the Union in a timely manner the infor- mation requested by the Union since April 10, 2015. (b) Rescind the changes in terms and conditions of employment for its unit employees that were implement- ed about June 1, 2015, and restore the terms and condi- tions of employment that were in effect before the Re- spondent made the changes, including assigning work to unit employees and obtaining qualified applicants from the applicable local union office to perform unit work. (c) Within 14 days from the date of this Order, offer unit employees to whom the Respondent has failed and refused to offer work assignments since June 1, 2015, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. (d) Within 14 days of the date of this Order, offer in- statement to qualified applicants who would have been referred to the Respondent for employment through the applicable local union office to perform unit work were it not for the Respondent’s unlawful conduct without prej- udice to their seniority or any other rights or privileges to which they would have been entitled. (e) Make unit employees and applicants whole for any loss of earnings and other benefits suffered as a result of the unilateral changes in their terms and conditions of employment, in the manner set forth in the remedy sec- tion of this decision. (f) Compensate affected employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay awards to the appropriate calendar years for each employee. (g) Give full force and effect to the terms and condi- tions of employment provided in the Western/Central Master Agreement effective from June 1, 2015 through May 31, 2018, and any automatic extensions thereof, by making all required payments to the Western Washing- ton Laborers-Employers Pension Trust that have not been made since about June 1, 2015, including any addi- tional amounts due the fund, in the manner set forth in the remedy section of this decision. (h) Recognize and bargain in good faith with the Un- ion as the limited exclusive collective-bargaining repre- sentative of employees in the bargaining unit identified in the Compliance Agreement and the Western/Central Washington Master Agreement between the Associated General Contractors of Washington and the Union during the terms of the agreements, and any automatic exten- sions thereof. (i) Rescind its repudiation of the Compliance Agree- ment and the Western/Central Washington Master Agreement effective from June 1, 2015, through May 31, 2018, and give full force and effect to the terms and con- ditions of employment provided in those agreements during the terms of the agreements, and any automatic extensions thereof. (j) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (k) Within 14 days after service by the Region, post at its Auburn, Washington facility copies of the attached notice marked “Appendix.â€6 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board†shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.†KODO CONSTRUCTION, INC. 5 notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since April 10, 2015. (l) Within 21 days after service by the Region, file with the Regional Director for Region 19 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. Dated, Washington, D.C. October 29, 2018 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to mail and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union; Choose representatives to bargain with us on your behalf; Act together with other employees for your bene- fit and protection; Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with the Washington and Northern Idaho District Council of La- borers (the Union) by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the limited exclusive collective-bargaining representative of our unit employees. WE WILL NOT change your terms and conditions of employment by ceasing to assign you work and to obtain qualified applicants from the applicable local union of- fice to perform unit work. WE WILL NOT fail and refuse to continue in effect the terms and conditions of employment contained in the Laborers Compliance Agreement and the West- ern/Central Washington Master Labor Agreement effec- tive from June 1, 2015, through May 31, 2018, and any automatic extensions thereof, by failing and/or refusing to make payments to the Western Washington Laborers- Employers Pension Trust. WE WILL NOT repudiate our collective-bargaining rela- tionship, the Laborers Compliance Agreement, or the Western/Central Washington Master Labor Agreement during the term of the Compliance Agreement and the Western/Central Washington Master Labor Agreement effective from June 1, 2015, through May 31, 2018, and any automatic extensions thereof. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL furnish to the Union in a timely manner the information requested by the Union since April 10, 2015. WE WILL rescind the changes in the terms and condi- tions of employment for our unit employees that were unilaterally implemented about June 1, 2015, and restore the terms and conditions of employment that were in effect before the Respondent made the changes, includ- ing assigning work to unit employees and obtaining qual- ified applicants from the applicable local union office to perform unit work. WE WILL, within 14 days from the date of the Board’s Order, offer unit employees to whom we have failed and refused to offer work assignments since June 1, 2015, full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, offer instatement to qualified applicants who would have been referred to us for employment through the applicable local union office to perform unit work were it not for our unlawful conduct, without prejudice to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6 their seniority or any other rights or privileges to which they would have been entitled. WE WILL make unit employees and applicants whole for any loss of earnings and other benefits suffered as a result of the unilateral changes in their terms and condi- tions of employment, plus interest, less any net interim earnings, plus reasonable search-for-work and interim employment expenses. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 19, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL give full force and effect to the terms and conditions of employment provided in the West- ern/Central Washington Master Labor Agreement effec- tive from June 1, 2015, through May 31, 2018, and any automatic extensions thereof, by making all required payments to the Western Washington Laborers- Employers Pension Trust that have not been made since about June 1, 2015, including any additional amounts due the fund. WE WILL recognize and bargain in good faith with the Union as the limited exclusive collective-bargaining rep- resentative of our employees in the bargaining unit iden- tified in the Laborers Compliance Agreement and the Western/Central Washington Master Labor Agreement between the Associated General Contractors of Washing- ton and the Union during the terms of the agreements, and any automatic extensions thereof. WE WILL rescind our repudiation of the Laborers Compliance Agreement and the Western/Central Wash- ington Master Labor Agreement effective from June 1, 2015, through May 31, 2018, and give full force and ef- fect to the terms and conditions of employment provided in those agreements during the terms of the agreements, and any automatic extensions thereof. KODO CONSTRUCTION, INC. The Board’s decision can be found at http://www.nlrb.gov/case/19-CA-159674 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Copy with citationCopy as parenthetical citation