Michaelson Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1512 (N.L.R.B. 1985)

1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michaelson Construction Company, Inc. and N.C.
Construction Co. and Pink Construction Corp.
and Metropolitan Detroit Bricklayers District
Council International Union of Bricklayers and
Allied Craftsmen , AFL-CIO. Cases 7-CA-
24042(7), 7-CA-24042(8), and 7-CA-24042(9)
29 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon charges filed by the Union 21 November
1984, the General Counsel of the National Labor
Relations Board issued an order consolidating cases
and amended consolidated complaint 7 January
19851 against the Respondents alleging that they
have violated Section 8(a)(1) and (5) and Section
2(6) and (7) of the National Labor Relations Act.
The amended consolidated complaint alleges that
the Respondents have refused to execute an exten-
sion agreement reached by the Union with
DMCA-Detroit, the authorized bargaining agent of
the Respondents, in violation of Section 8(a)(1) and
(5) of the Act. The Respondents failed to file an
answer to the complaint within the time period
prescribed by Section 102.20 of the Board' s Rules
and Regulations. By letter dated 23 January, the
Respondents were notified of their obligation to
file an answer and further informed that, unless an
answer was received by 5 February, a Motion for
Default Summary Judgment would be filed. On 7
February the General Counsel issued an order sev-
ering cases in which she severed the above-cap-
tioned cases from Cases 7-CA-23824 and 7-CA-
24042(3).
On 11 February the General Counsel filed a
Motion for Default Summary Judgment. On 13
February 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
Respondents did not file a response.
Ruling on Motion for Summary Judgment
The General Counsel submits that although the
Respondents were advised on at least two occa-
sions of the consequences of failing to file an
answer, they have failed and refused to answer the
amended consolidated complaint as required by
Section 102.20 of the Board's Rules and Regula-
tions. The General Counsel therefore moves that
all allegations of the amended consolidated com-
plaint be deemed to be admitted to be true by the
Respondents and so found by the Board and that
i All dates herein refer to 1985 unless otherwise noted
the Respondents be found to have violated Section
8(a)(1) and (5) of the Act without the taking of evi-
dence in support of the amended consolidated com-
plaint as to these Respondents and that an appro-
priate remedial order be issued.
Section 102.20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, all the allegations in the complaint shall be
deemed to be admitted to be true and shall be so
found by the Board. Further, the undisputed alle-
gations in the Motion for Default Summary Judg-
ment disclose that the Regional attorney for
Region 7, by letter dated 23 January, notified the
Companies that unless an answer was received by 5
February, a Motion for Default Summary Judg-
ment would be filed.
Since the Respondents have not filed an answer
within 10 days from the service of the complaint,
or within the extended time afforded them by the
Regional Director, and as no good cause for the
failure to do so has been shown, in accordance
with the rule set forth above the allegations of the
complaint herein stand undenied and are deemed to
be admitted to be true and are so found to be true.
Accordingly, we grant the Motion for Default
Summary Judgment.2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, Respondents Mi-
chaelson, N.C., and Pink have been employer-
members of DMCA-Detroit. During the year
ending 31 December 1984, which period is repre-
sentative of its operations during all times material
herein, DMCA-Detroit, by its respective employer-
members, in the course and conduct of the business
operations of its employer-members, has purchased
and caused to be transported and delivered at vari-
ous offices and jobsites, all located within the State
of Michigan, building materials in excess of $50,000
which were transported and delivered to these lo-
cations directly from points located outside the
State of Michigan. We find that the Companies are
2In granting the General Counsel 's Motion for Default Summary Judg-
ment, Chairman Dotson specifically relies on the total failure of the Re-
spondents to contest either the factual allegations or the legal conclusions
of the General Counsel 's complaint Thus, the Chairman regards this pro-
ceeding as being essentially a default summary judgment which is with-
out precedential value
274 NLRB No. 220
MICHAELSON CONSTRUCTION
employers engaged in commerce within the mean-
ing of Section 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
A. The Unit
At all times material herein, DMCA-Detroit has
been authorized by the Respondents to bargain col-
lectively on their behalf with the Union. The most
recent collective-bargaining agreement between the
Union and DMCA-Detroit was effective from 1
June 1982 through 31 May 1984, recognizing the
Union as the exclusive bargaining representative of
a unit of all employees of the employer-members of
DMCA-Detroit performing masonry work. That
unit is more fully described in the parties' collec-
tive-bargaining agreement and is an appropriate
unit within the meaning of Section 9(b) of the
Act.3
B. The Alleged Violation of Section 8(a)(1)
and (5)
About 21 June 1984, the Union and DMCA-De-
troit reached full and complete agreement on an
extension of the collective-bargaining agreement
through 31 May 1985. The complaint alleges that
about 13 July 1984, the Union, by letter, requested
the Respondents to execute the extension agree-
ment. The complaint further alleges that since
about 13 July 1984, and continuing to date, the Re-
spondents have refused to execute the extension
agreement in violation of Section 8(a)(5) and Sec-
tion 2(6) and (7) of the Act. Because, as noted
above, the allegations of the complaint are deemed
admitted and found to be true in the absence of a
timely answer having been filed, we find that by
refusing to execute the extension agreement the Re-
spondents violated Section 8(a)(1) and (5) and Sec-
tion 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. DMCA-Detroit is the authorized bargaining
agent of Respondents Michaelson, N.C., and Pink.
2. Respondents Michaelson, N.C., and Pink are
employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
3. Metropolitan Detroit Bricklayers District
Council International Union of Bricklayers and
Allied Craftsmen, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
s In light of the Respondents' failure to answer, Member Hunter finds
only that the General Counsel has established that there is an appropriate
unit of the Respondents' employees
1513
4. By refusing to execute the extension agree-
ment referred to above, the Respondents have vio-
lated Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondents have en-
gaged in certain unfair labor practices, we shall
order them to cease and desist and to take certain
affirmative action designed to effectuate the poli-
cies of the Act. Accordingly, we shall order the
Respondents to execute the extension agreement
reached by DMCA-Detroit with the Union and to
reimburse any employees for loss of wages or bene-
fits as a result of a failure to do so.
ORDER
The National Labor Relations Board orders that
the Respondents, Michaelson Construction Compa-
ny, Inc., Brighton, Michigan; N.C. Construction
Co., Detroit, Michigan; and Pink Construction
Corp., Farmington, Michigan; their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Metro-
politan Detroit Bricklayers District Council Inter-
national Union of Bricklayers and Allied Crafts-
men, AFL-CIO as the exclusive bargaining repre-
sentative of the employees in the bargaining unit by
refusing to execute the extension agreement
reached by their authorized bargaining representa-
tive with the Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Execute the extension agreement reached by
DMCA-Detroit with Metropolitan Detroit Brick-
layers District Council International Union of
Bricklayers and Allied Craftsmen, AFL-CIO and
reimburse any employees for loss of wages or bene-
fits as a result of a failure to do so. Backpay should
be computed in a manner consistent with Board
policy as stated in Ogle Protection Service, 183
NLRB 682 (1970), with interest as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).
(b) Post at their facilities in Brighton, Detroit,
and Farmington, Michigan, copies of the attached
notice marked "Appendix."4 Copies of the notice,
4 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on forms provided by the Regional Director for
Region 7, after being signed by the Respondents'
authorized representative, shall be posted by the
Respondents immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that
the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Metropoli-
tan Detroit Bricklayers District Council Interna-
tional Union of Bricklayers and Allied Craftsmen,
AFL-CIO as the exclusive bargaining representa-
tive of employees in the bargaining unit by refusing
to execute the extension agreement reached by
DMCA-Detroit with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL execute the extension agreement re-
ferred to above and reimburse any employees for
loss of wages or benefits as a result of a failure to
do so.
MICHAELSON CONSTRUCTION COMPA-
NY, INC.; N.C. CONSTRUCTION CO.;
PINK CONSTRUCTION CORP.
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.