Moore, W. L., & Sons

National Labor Relations Board - Board Decisions

Aug 25, 1981

257 N.L.R.B. 967 (N.L.R.B. 1981)

W. L. MOORE & SONS
W. L. Moore d/b/a W. L. Moore & Sons and Local
324, International Union of Operating Engi-
neers, AFL-CIO. Case 7-CA-17903
August 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on June 18, 1980, by Local
324, International Union of Operating Engineers,
AFL-CIO, herein called the Union, and duly
served on W. L. Moore, d/b/a W. L. Moore &
Sons, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 7, issued a complaint
on August 29, 1980, against Respondent, alleging
that Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding. Respondent failed to file an answer to the
complaint.
On March 19, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 2,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
Cause and therefore the allegations of the Motion
for Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
257 NLRB No. 122
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically states that unless an answer
is filed within 10 days of service thereof "all of the
allegations in the Complaint shall be deemed to be
admitted to be true and may be so found by the
Board." According to the Motion for Summary
Judgment, on January 15, 1981, the Regional Di-
rector wrote to Respondent informing it that Re-
gional Office records indicated that Respondent
had not filed an answer and, that if an appropriate
answer were not filed by January 28, 1981, a
Motion for Default Judgment would be sought. In
response to Respondent's telephone request for an
extension in which to file an answer a Board agent,
by letter dated January 28, 1981, informed Re-
spondent that its answer could be received no later
than February 4, 1981. Service of this letter was re-
fused. To date, no answer to the complaint has
been filed. Respondent's sole written response to
the Regional Office's request for an answer has
been a letter dated February 2, 1981, in which Re-
spondent asserts that it complied with the Union's
request for "the audit." This letter does not meet
the requirements for an answer set out in Section
102.20 of the Board's Rules and Regulations, it fails
to address with specificity the one allegation in the
complaint to which it might apply, and it does not
even mention the additional allegations. According-
ly, we find that Respondent's letter of February 2,
1981, does not constitute an answer.
No good cause for failure to file an answer
having been shown, in accordance with the rule set
forth above, the allegations of the complaint are
deemed to be admitted. Accordingly, we find as
true all the allegations of the complaint and grant
the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, an individual proprietor, W. L. Moore,
doing business under the trade name and style of
W. L. Moore & Sons.
Respondent is, and has been at all times material
herein, engaged in the performance of earth
moving and other heavy equipment work in the
construction industry from its place of business at
7730 Joy Road, Detroit, Michigan. During the year
-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ending December 31, 1979, which period is repre-
sentative of its operations during all times material
herein, Respondent performed construction and
earth moving work for enterprises at various job
sites in Michigan, the value of which was in excess
of $50,000. These enterprises, including Holtzman
and Silverman, Inc., either individually had gross
revenues in excess of $500,000 from the retail sale
of homes and received at least $5,000 worth of
goods and materials directly from suppliers located
outside Michigan or individually engaged in nonre-
tail business and purchased goods and materials
valued in excess of $50,000 which had been deliv-
ered to jobsites and facilities within the State of
Michigan directly from points outside the State of
Michigan during the year ending December 31,
1979. Further, Respondent during this period pur-
chased natural gas valued in excess of $1,000 which
originated outside the State of Michigan.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 324, International Union of Operating En-
gineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All operating engineers, mechanics, oilers, and
apprentice engineers employed by the Re-
spondent, excluding guards and supervisors as
defined in the Act.
On or about May 30, 1979, Respondent and the
Charging Party executed an agreement whereby
Respondent agreed to be bound by the "wage
rates, fringe benefits, and all other terms and condi-
tions and provisions" contained in a collective-bar-
gaining agreement between Charging Party and
various employee groups.
At all times material herein, by virtue of the
May 30, 1979, agreement and because, subsequent
to said agreement, a majority of the employees of
Respondent in the unit described above selected
the Charging Party as their collective-bargaining
representative, and the collective-bargaining con-
tract referred to therein, the Union has been and
continues to be the exclusive collective-bargaining
representative of the employees in said unit within
the meaning of Section 9(a) of the Act with respect
to rates of pay, wages, hours, and other terms and
conditions of employment.
The collective-bargaining contract referred to
above provides, inter alia, for the payment of
moneys and submission of monthly reports by Re-
spondent to various fringe benefit funds established
for the benefit of unit employees of Respondent. It
further provides that Respondent, upon demand by
the Union, permit the Union to audit and examine
the Respondent's books and records in respect to
such payments and reports to said fringe benefit
funds.
Commencing on or about January 20, 1980, and
continuing to date, Respondent, without first
giving notice to and bargaining with the Union, has
unilaterally failed and refused to file timely month-
ly benefit reports and to make monthly fringe bene-
fit fund payments as is required by the agreement it
signed with the Union on May 30, 1979, in which
it agreed, inter alia, to be bound by the fringe bene-
fit provisions of the Union's collective-bargaining
contract with various employer groups. In addi-
tion, since June 5, 1980, the Union has requested
and continues to request and Respondent has re-
fused and continues to refuse to permit the Union's
auditors for fringe benefit funds to examine and
audit Respondent's books and records as provided
for in the aforementioned collective-bargaining
agreement.
Accordingly, we find that, by the acts and con-
duct set forth above, Respondent has since on or
about January 20, 1980, refused to bargain collec-
tively in good faith, and is refusing to bargain col-
lectively in good faith, with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
968
W. L. MOORE & SONS
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
that it take certain affirmative action designated to
effectuate the purposes and policies of the Act.
In order to dissipate the effects of the unfair
labor practices described in section III, we shall
order Respondent to permit auditors of the fringe
benefit funds to examine and audit Respondent's
books and records as provided for in the collective-
bargaining agreement described in section III. We
shall further order Respondent to file its monthly
fringe benefit reports in a timely manner as is re-
quired by the terms of said agreement. Finally, we
shall order Respondent to make whole its employ-
ees by making the payments to the fringe benefit
funds which should have been made pursuant to
the aforesaid collective-bargaining agreement, ret-
roactive to January 20, 1980.'
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. W. L. Moore d/b/a W. L. Moore & Sons is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 324, International Union of Operating
Engineers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All operating engineers, mechanics, oilers, and
apprentice engineers employed by Respondent, ex-
cluding guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since on or about May 30, 1979, the above-
named labor organization has been, and is now, the
certified and exclusive representative of all employ-
ees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By the acts described in section III, above,
Respondent has refused to bargain collectively in
good faith, and is refusing to bargain collectively in
good faith, with the above-named labor organiza-
tion as the exclusive representative of the employ-
ees in the above-described appropriate unit, and
' Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, by evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld.
additional administrative costs. etc.. but not collateral losses. See
Merryweather Optical Company, 240 NLRB 1213 (1979).
thereby has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the acts and conduct described in section
III, above, Respondent has interfered with, re-
strained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise
of the rights guaranteed them under Section 7 of
the Act, and thereby has engaged in, and is engag-
ing in, unfair labor practices.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
W. L. Moore d/b/a W. L. Moore & Sons, Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
324, International Union of Operating Engineers,
AFL-CIO, concerning the employees in the appro-
priate unit set forth below, and without notice to
the Union unilaterally failing and refusing to submit
monthly fringe benefit reports as required by the
collective-bargaining agreement, provisions of
which Respondent agreed to adopt in the agree-
ment executed between Respondent and the Union
on May 30, 1979. The appropriate unit is:
All operating engineers, mechanics, oilers, and
apprentice engineers employed by Respondent,
excluding guards and supervisors as defined in
the Act.
(b) Refusing to bargain collectively with the
Union by unilaterally and without notice to the
Union failing and refusing to make monthly pay-
ments to the fringe benefit funds as required by the
above-described collective-bargaining agreement.
(c) Refusing to bargain collectively with the
Union by refusing the Union's request that its audi-
tors for fringe benefits be permitted to examine and
audit Respondent's books and records as provided
in the above-described collective-bargaining agree-
ment.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Honor and abide by those terms and condi-
tions of employment provided for in the collective-
bargaining agreement which were adopted in the
agreement entered into by W. L. Moore d/b/a W.
L. Moore & Sons and Local 324, International
Union of Operating Engineers, AFL-CIO, on May
30, 1979.
(b) Grant the Union's request that its fringe
benefit auditors be permitted to examine and audit
Respondent's books and records.
(c) Submit fringe benefit reports as required by
the above-described collective-bargaining agree-
ment.
(d) Make the unit employees whole by making
all fringe benefit contributions as provided for in
the above-described collective-bargaining agree-
ment in the manner set forth in the section of this
Decision and Order entitled "The Remedy."
(e) Post at its Detroit, Michigan, location copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 collectively
with Local 324, International Union of Operat-
ing Engineers, AFL-CIO, by unilaterally and
without notice to the Union failing and refus-
ing to submit monthly benefit reports as re-
quired by the collective-bargaining agreement,
provisions of which we agreed to adopt in the
agreement executed between us and the Union
on May 30, 1979.
WE WILL NOT refuse to bargain collectively
with the Union by failing and refusing to make
monthly payments to the fringe benefit funds
as required by the above-described collective-
bargaining agreement.
WE WILL NOT refuse to bargain collectively
with the Union by refusing the Union's request
that its auditors for fringe benefits be permit-
ted to examine and audit our books and re-
cords as required by the above-described col-
lective-bargaining agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise or the rights guaranteed
them in Section 7 of the Act.
WE WILL honor and abide by those terms
and conditions of employment provided for in
the collective-bargaining agreement which
were adopted in the agreement entered into by
us and the Union on May 30, 1979. The appro-
priate unit for the purpose of collective bar-
gaining is:
All operating engineers, mechanics, oilers,
and apprentice engineers employed by W.
L. Moore d/b/a W. L. Moore & Sons, ex-
cluding guards and supervisors as defined in
the Act.
WE WILL submit fringe benefit reports as re-
quired by the above-described collective-bar-
gaining agreement.
WE WILL make the unit employees whole
by making all fringe benefit contributions to
the fringe benefit funds as required by the
above-described collective-bargaining agree-
ment, retroactive to January 20, 1980.
WE WILL grant the Union's request that its
fringe benefit auditors be permitted to examine
and audit our books and records as required
by the above-described collective-bargaining
agreement.
W. L. MOORE D/B/A W. L. MOORE &
SONS
970