Malik Roofing Corp.

National Labor Relations Board - Board Decisions

Apr 10, 2003

338 N.L.R.B. 930 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930
Malik Roofing Corporation and Sheet Metal Workers
International Association, Local No. 18. Case
30–CA–16097–1
April 10, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
Sheet Metal Workers International Association, Local
No. 18 (the Union) on July 23, 2002, the General Coun-
sel issued the complaint on September 30, 2002, against
Malik Roofing Corporation, the Respondent, alleging
that it has violated Section 8(a)(1) and (5) of the Act.
The Respondent failed to file an answer.
On November 12, 2002, the General Counsel filed a
Motion for Summary Judgment with the Board. On No-
vember 14, 2002, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the 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 notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated October 18, 2002, notified the Respondent that
unless an answer was received by October 25, 2002, a
motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.
On the entire record, the Board makes the following

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the business of manufacturing, dis-
tributing, and installing roofing systems out of its
Whitewater, Wisconsin facility.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations,
purchased and received products, goods, and materials
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Wisconsin. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Kent Malik Jr. held the position
of the Respondent’s president, and has been a supervisor
of the Respondent within the meaning of Section 2(11)
of the Act and an agent of the Respondent within the
meaning of Section 2(13) of the Act.
The following employees of the Respondent, as more
particularly described in article I, section 1 of the collec-
tive-bargaining agreement, herein called the unit, consti-
tute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act:

[A]ll employees of the Employer engaged in but not
limited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition-
ing, adjustment, alteration, repairing and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in-
cluding the setting of all equipment and all reinforce-
ments in connection therewith; (b) all lagging over in-
stallation and all duct lining; (c) testing and balancing
of all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri-
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.

On May 17, 2000, the Respondent and the Union
signed an Assumption of Agreement. By entering into
the Assumption of Agreement, the Respondent agreed to
be bound to the collective-bargaining agreement between
the Union and the Southeastern Sheet Metal Contractors
Association, Inc. (the Contractors Association), effective
from September 1, 1998, through August 31, 2001. See
338 NLRB No. 141
MALIK ROOFING CORP. 931
Malik Roofing Corp., 337 NLRB No. 103 (2002) (not
reported in Board volumes) (finding, in default judgment
proceeding, that Respondent was bound by the collec-
tive-bargaining agreement).2
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit and was recognized as the representative by the
Respondent. This recognition has been embodied in a
Letter of Assent dated May 31, 2000. At all times since
May 31, 2000, the Union, by virtue of Section 9(a) of the
Act, has been, and is, the exclusive representative of the
employees in the unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment. See id.
By entering into the Letter of Assent, the Respondent
agreed to be bound by any successor agreement within
the jurisdiction of the Union unless written notice was
given at least 90 but no more than 120 days prior to the
expiration of the agreement. The Respondent never pro-
vided notice consistent with the Letter of Assent that it
did not intend to be bound to the successor agreement
between the Union and the Contractors Association.
The Respondent is therefore bound to the current succes-
sor agreement between the Union and the Contractors
Association, effective from September 1, 2001, through
August 31, 2004.
By letter to the Union dated May 28, 2002, the Re-
spondent impermissibly repudiated the collective-
bargaining agreement with the Union and terminated the
agreement effective August 31, 2002. The Respondent
has, at all material times and since at least September 1,
2001, failed and refused to comply with the terms of the
September 1, 2001, through August 31, 2004 agreement
between the Union and the Contractors Association.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.3

2 Petition for enf. filed No. 02-3261 (7th Cir. Aug. 30, 2002).
3 The complaint alleges a refusal to comply with the agreement since
September 1, 2001, more than 6 months prior to the filing of the charge.
However, the 10(b) 6-months limitations period is an affirmative de-
fense that is waived if not timely raised. See, e.g., Newspapaper &
Mail Deliverers (New York Post), 337 NLRB 608, 609 (2002) (citing
Public Service Co., 312 NLRB 459, 461 (1993)). As the Respondent
has failed to file an answer to the complaint or response to the notice to
show cause raising a 10(b) defense, we shall therefore find the viola-
tions as alleged and issue an appropriate remedial order. See, e.g., J. F.
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, we shall
order the Respondent to recognize and, on request, bar-
gain with the Union as the exclusive collective-
bargaining representative of the unit employees,4 and to
comply with the September 1, 2001, through August 31,
2004 agreement between the Union and the Contractors
Association, and any automatic renewal or extension of
it. We shall also order the Respondent to make whole
the unit employees for any loss of earnings and other
benefits they may have suffered as a result of the Re-
spondent’s failure to comply with the agreement since
September 1, 2001. In addition, we shall order the Re-
spondent to make whole the unit employees by making
any contractually required fringe benefit fund contribu-
tions that have not been made on behalf of employees
since September 1, 2001, including any additional
amounts applicable to such delinquent payments in ac-
cordance with Merryweather Optical Co. 240 NLRB
1312, 1316 (1979).5 Further, we shall require the Re-
spondent to reimburse the unit employees for any ex-
penses ensuing from its failure to make the required con-
tributions since September 1, 2001, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981). All payments to
unit employees shall 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

Morris Co., 292 NLRB 869, 870 fn. 2 (1989), enfd. mem. 881 F.2d
1076 (6th Cir. 1989).
4 Although the Board previously issued a bargaining order against
Respondent in the case cited above that remains outstanding, the com-
plaint in this case alleges additional violations that were not specifically
remedied by the Board’s order in the prior case. Thus, the complaint in
the prior case alleged that Respondent had repudiated and failed to
abide by the September 1, 1998–August 31, 2001 agreement between
the Union and the Contractors Association, whereas the complaint in
this case alleges that the Respondent repudiated and failed to comply
with the September 1, 2001, through August 31, 2004 successor agree-
ment between the Union and the Contractors Association. In these
circumstances, and in the absence of any contention that such an order
is inappropriate or unwarranted, we shall issue a second bargaining
order against the Respondent. See generally Clark United Corp., 319
NLRB 328, 329 fn. 2 (1995), enfd. mem. 95 F.3d 1147 (5th Cir. 1996),
and cases cited there. See also Rish Equipment Co., 173 NLRB 943,
945 (1968).
5 To the extent that an employee has made personal contributions to
a benefit or other fund that has been accepted by the fund in lieu of the
Respondent’s delinquent contributions during the period of the delin-
quency, the Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that the Re-
spondent otherwise owes the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Malik Roofing Corporation, Whitewater,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Sheet Metal Workers International Asso-
ciation, Local No. 18, as the exclusive collective-
bargaining representative of the employees in the unit set
forth below, by impermissibly repudiating, terminating,
and refusing to comply with the 2001–2004 collective-
bargaining agreement between the Union and Southeast-
ern Sheet Metal Contractors Association, Inc., as re-
quired by the Letter of Assent:

All employees of the Employer engaged in but not lim-
ited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition-
ing, adjustment, alteration, repairing and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in-
cluding the setting of all equipment and all reinforce-
ments in connection therewith; (b) all lagging over in-
stallation and all duct lining; (c) testing and balancing
of all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri-
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.

(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the above-mentioned
appropriate unit concerning terms and conditions of em-
ployment, and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) Comply with the terms and conditions of the Sep-
tember 1, 2001–August 31, 2004 collective-bargaining
agreement between the Union and Southeastern Sheet
Metal Contractors Association, Inc., and any automatic
renewal or extension of it.
(c) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its refusal to comply with the collective-
bargaining agreement since September 2001, with inter-
est, as set forth in the remedy section of this Decision.
(d) Make all contractually required benefit fund con-
tributions, if any, that have not been made on behalf of
unit employees since September 1, 2001, and reimburse
unit employees for any expenses ensuing from its failure
to make the required payments, in the manner set forth in
the remedy section of this Decision.
(e) 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 re-
cords 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.
(f) Within 14 days after service by the Region, post at
its facility in Whitewater, Wisconsin, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September 1,
2001.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.

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.”
MALIK ROOFING CORP. 933
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 post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any 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 fail and refuse to bargain collectively and
in good faith with Sheet Metal Workers International
Association, Local No. 18, as the exclusive collective-
bargaining representative of the employees in the unit set
forth below, by repudiating, terminating, and refusing to
comply with the September 1, 2001–August 31, 2004
collective-bargaining agreement between the Union and
the Southeastern Sheet Metal Contractors Association, as
required by our Letter of Assent agreement with the Un-
ion:

All employees employed by us engaged in but not lim-
ited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition-
ing, adjustment, alteration, repairing and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in-
cluding the setting of all equipment and all reinforce-
ments in connection therewith; (b) all lagging over in-
stallation and all duct lining; (c) testing and balancing
of all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri-
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the
above-described bargaining unit.
WE WILL comply with the terms and conditions of the
2001–2004 collective-bargaining agreement between the
Union and Southeastern Sheet Metal Contractors Asso-
ciation, Inc., and any automatic renewal or extension of
it.
WE WILL make whole the unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our refusal to comply with the collective-
bargaining agreement since September 2001, with inter-
est.
WE WILL make all contractually required benefit fund
contributions, if any, that have not been made on behalf
of unit employees since September 1, 2001, and reim-
burse unit employees for any expenses ensuing from our
failure to make the required payments, with interest.

MALIK ROOFING CORPORATION