Mason Tenders Local #388

National Labor Relations Board - Board Decisions

Jan 23, 2008

352 N.L.R.B. 2 (N.L.R.B. 2008)

352 NLRB No. 2
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.
Mason Tenders Local Union #388, affiliated with Vir-
ginia and North Carolina Laborers’ District
Council and Sprinkle Masonry, Inc. Case 5–CB–
10112
January 23, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement.
Upon a charge filed by Sprinkle Masonry, Inc., the
Charging Party, on January 30, 2007, the General Coun-
sel issued the complaint on May 31, 2007, against Mason
Tenders Local Union #388, affiliated with Virginia and
North Carolina Laborers’ District Council, the Respon-
dent, alleging that it has violated Section 8(b)(3) of the
Act. Thereafter, the Charging Party and the Respondent
entered into an informal settlement agreement that was
approved by the Regional Director for Region 5 on Au-
gust 22, 2007. The settlement agreement required the
Respondent to provide the Charging Party with “any col-
lective-bargaining agreements, memoranda of agreement,
side letters and other agreements negotiated on or after
July 1, 2004, or, if no such information exists, [. . .] with
a statement to that effect.”
The settlement agreement also contained the following
provision:
In the event of non-compliance with this settlement
agreement, the allegations in a Complaint issued with
regard to the violations covered by the Settlement
Agreement will be deemed admitted. Upon Motion for
Summary Judgment the Board may, without necessity
of trial, find all allegations of the Complaint to be true,
adopt findings of fact and conclusions of law consistent
with the Complaint allegations, and issue an appropri-
ate Order.
By letter dated August 23, 2007, the Region provided
the Respondent with a conformed copy of the settlement
agreement, and copies of the notice to employees and
members for posting. This letter also advised the Re-
spondent to take the steps necessary to comply with the
settlement agreement. By letter dated September 13,
2007, the compliance officer for Region 5 advised the
Respondent that it had not complied with the terms of the
settlement agreement and warned that its failure to do so
by September 21, 2007, would result in the filing of a
motion for summary judgment as provided by the settle-
ment agreement.
The Respondent failed to comply. Accordingly, on
November 16, 2007, the General Counsel filed a Motion
for Summary Judgment with the Board. Thereafter, on
November 27, 2007, 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.1 The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
On the entire record, the National Labor Relations
Board2 makes the following
Ruling on Motion for Summary Judgment
According to the uncontroverted allegations in the Mo-
tion for Summary Judgment, the Respondent has failed
to comply with the terms of the settlement agreement by
failing to provide the Charging Party with any collective-
bargaining agreements, memoranda of agreement, side
letters and other agreements negotiated on or after July 1,
2004, or a statement stating that no such information
exists, and failing to post the Notice to Employees and
Members. Consequently, pursuant to the noncompliance
provisions of the settlement agreement set forth above,
we find that all of the allegations of the complaint are
true.3 Accordingly, we grant the General Counsel’s Mo-
tion for Summary Judgment.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Charging Party, a Virginia
corporation with an office and place of business in
Chesapeake, Virginia, has been engaged as a masonry
contractor in the construction industry doing commercial
and industrial construction.
During the preceding 12 months prior to the issuance
of the complaint, a representative period, the Charging
Party, in conducting its business operations described
above, purchased and received at its Chesapeake, Vir-
ginia facility goods valued in excess of $50,000 directly
from points located outside the State of Virginia.

1 The Order and notice issued on November 21, 2007, erroneously
stating that the General Counsel had filed a motion for summary judg-
ment on the ground that the Respondent failed to file an answer to the
complaint, has been vacated.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
3 See U-Bee, Ltd., 315 NLRB 667 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
We find that the Charging Party is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
At all material times, the Respondent has been a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Robert Fahey held the position of
Business Agent, and has been an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Charging Party consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees in the classifications and categories of
work covered by the agreement between the Virginia
and North Carolina Laborers’ District Council, for and
on behalf of Mason Tenders Local Union 388, and
Sprinkle Masonry and other Signatory Contractors.
On or about June 28, 2004, the Charging Party and the
Respondent entered into a collective-bargaining agree-
ment effective for the period from July 1, 2004, until
June 30, 2006. The agreement was renewed on Septem-
ber 13, 2006, to remain in effect until April 30, 2007, and
thereafter, to continue in effect from year to year, unless
timely notice was given in accordance with the terms of
the “Effective Dates” section of the collective-bargaining
agreement.
Since on or about July 1, 2004, pursuant to the agree-
ment described above, the Charging Party has recognized
the Respondent as the exclusive collective-bargaining
representative of the unit.
At all material times since July 1, 2004, based on Sec-
tion 9(a) of the Act, the Respondent has been the limited
exclusive collective-bargaining representative of the
Unit.4
On or about June 23, 2006, by oral request to Business
Agent Fahey, the Charging Party requested that the Re-
spondent provide the Charging Party with all agreements
entered into by the Respondent with other employers.
On or about June 26, 2006, by letter sent by mail and
facsimile to Fahey, the Charging Party requested that the
Respondent provide the Charging Party with any and all
collective-bargaining agreements, memoranda of agree-
ment, side letters and other agreements entered into by
the Respondent with other employers in any industry
since July 1, 2004.

4 The Charging Party has recognized the Respondent as the exclu-
sive collective-bargaining representative of the unit without regard to
whether the majority status of the Respondent has ever been estab-
lished.
On or about November 7, 2006, by letter sent by mail,
facsimile and electronic mail to the Respondent’s coun-
sel, the Charging Party requested that the Respondent
provide the Charging Party with any and all collective-
bargaining agreements, memoranda of agreement, side
letters and other agreements entered into by the Respon-
dent with other employers in any industry since July 1,
2004.
The information requested by the Charging Party is
necessary for, and relevant to, the Charging Party’s
monitoring of article XXIII, the “Favored Nations
Clause” of the parties’ collective-bargaining agreement
described above.
Since on or about June 23, 2006, the Respondent has
failed and refused to furnish the Charging Party with the
requested information.
CONCLUSION OF LAW
By failing and refusing to furnish the Charging Party
with the requested information, the Union, the represen-
tative of the Charging Party’s employees, has failed and
refused to bargain collectively and in good faith with an
employer, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(3) and 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(b)(3) of the
Act by failing and refusing to provide the Charging Party
with information that is relevant and necessary for col-
lective bargaining, we shall order the Respondent to pro-
vide the Charging Party with any collective-bargaining
agreements, memoranda of agreement, side letters and
other agreements negotiated on or after July 1, 2004, or,
if no such information exists, with a statement to that
effect.
ORDER
The National Labor Relations Board orders that the
Respondent, Mason Tenders Local Union #388, affiliated
with Virginia and North Carolina Laborers’ District
Council, Chesapeake, Virginia, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with the Charging Party, as employer of the
employees in the following unit:
All employees in the classifications and categories of
work covered by the agreement between the Virginia
MASON TENDERS LOCAL #388 3
and North Carolina Laborers’ District Council, for and
on behalf of Mason Tenders Local Union 388, and
Sprinkle Masonry and other Signatory Contractors.
(b) Failing and refusing to furnish the Charging Party
with information that is necessary for, and relevant to,
the Charging Party’s monitoring of article XXIII, the
“Favored Nations Clause” of the parties’ collective-
bargaining agreement.
(c) In any like or related refusing to bargain collec-
tively and in good faith with Sprinkle Masonry, Inc., the
Employer.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Charging Party with any collective-
bargaining agreements, memoranda of agreement, side
letters and other agreements negotiated on or after July 1,
2004, or, if no such information exists, with a statement
to that effect.
(b) Within 14 days after service by the Region, post at
its business office and meeting halls in Norfolk, Virginia,
copies of the attached notice marked “Appendix.”5 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 5, after being signed by the Respon-
dent’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 and members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Within 14 days after service by the Region, deliver
to the Regional Director for Region 5 signed copies of
the notice in sufficient numbers for posting by the Charg-
ing Party at its Chesapeake, Virginia office, if it is will-
ing, in all places where notices to employees are custom-
arily posted.
(d) 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
comply.
Dated, Washington, D.C. January 23, 2008

5 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.”
Wilma B. Liebman, Member
Peter C. Schaumber, 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 post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain 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 Sprinkle Masonry, Inc., as employer of
the employees in the following unit:
All employees in the classifications and categories of
work covered by the agreement between the Virginia
and North Carolina Laborers’ District Council, for and
on behalf of Mason Tenders Local Union 388, and
Sprinkle Masonry and other Signatory Contractors.
WE WILL NOT fail and refuse to provide Sprinkle Ma-
sonry, Inc. with information that is necessary for, and
relevant to, Sprinkle Masonry, Inc.’s monitoring of arti-
cle XXIII, the “Favored Nations Clause” of our collec-
tive-bargaining agreement.
WE WILL NOT in any like or related manner refuse to
bargain collectively with Sprinkle Masonry, Inc. the Em-
ployer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL provide Sprinkle Masonry, Inc. with any col-
lective-bargaining agreements, memoranda of agreement,
side letters and other agreements negotiated
on or after July 1, 2004, or, if no such information exists,
with a statement to that effect.
MASON TENDERS LOCAL UNION #388,
AFFILIATED WITH VIRGINIA AND NORTH
CAROLINA LABORERS’ DISTRICT COUNCIL