Netco Waterproofing Co.

National Labor Relations Board - Board Decisions

Jun 13, 2001

334 N.L.R.B. 43 (N.L.R.B. 2001)

334 NLRB No. 43
1
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.
Netco Waterproofing Co. and Bricklayers and Allied
Craftsworkers Local 1, New York B.A.C.I.U.,
AFL–CIO. Case 29–CA–23998
June 13, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS TRUESDALE
AND WALSH
Upon a charge filed by the Union on December 26,
2000, the Acting General Counsel of the National Labor
Relations Board issued a complaint on March 12, 2001,
against Netco Waterproofing Co., the Respondent, alleg-
ing that it has violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act. Although properly served
copies of the charge and complaint, the Respondent
failed to file an answer.
On April 26, 2001, counsel for the General Counsel
filed a Motion for Summary Judgment with the Board.
On April 27, 2001, 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 National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide 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 Mo-
tion for Summary Judgment disclose that the Region, by
letter dated April 11, 2001, notified the Respondent that
unless an answer was received by April 20, 2001, a Mo-
tion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant counsel for the Ge n-
eral Counsel’s Motion for Su mmary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration with a principal office and place of business
located at 24-49 77th Street, East Elmhurst, New York,
has been engaged as a building restoration contractor.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in the course and conduct
of its business operations described above, purchased and
received at its East Elmhurst facility, goods and materials
valued in excess of $50,000 directly from entities located
outside the State of New York. We find that the Re-
spondent 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, Bricklayers and Allied Crafts-
workers Local 1, New York B.A.C.I.U., AFL–CIO (the
Union) has been the designated exclusive collective-
bargaining representative of all pointers, cleaners, and
caulkers employed by the Respondent for jobs within the
geographic confines of the City of New York, Nassau
and Suffolk Counties (the unit), and has been recognized
as the representative by the Respondent.
This recognition has been embodied in successive col-
lective-bargaining agreements between the Union and the
Respondent, the most recent of which was effective by
its terms for the period from July 1, 1997, to June 30,
2000.
The collective-bargaining agreements described above
were “me too” agreements with the Union, whereby the
Respondent agreed to accept and adopt all terms and
conditions contained in the collective-bargaining agree-
ments negotiated between the Union and the Building
Restoration Contractors Association (the Association),
covering the unit.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been the exclusive collective-
bargaining representative of the unit.
On about a date presently unknown in June 2000, the
Union and the Association reached agreement on a new
wage and fringe benefit package pay schedule. The
agreed-upon changes were embodied in a written Memo-
randum of Agreement and incorporated into the collec-
tive-bargaining agreement described above, which had
expired on June 30, 2000, and extended the previously
expired agreement.
On about June 29, 2000, the Union requested that the
Respondent execute a written Memorandum of Agree-
ment containing the same terms of the agreement de-
scribed above, and since about June 29, 2000, the Re-
spondent has failed and refused to execute the agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of the employees in the unit, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 has failed and refused to exe-
cute a Memorandum of Agreement containing the same
terms as were agreed to between the Union and the
Building Restoration Contractors Association in about
June 2000, we shall order the Respondent to execute that
Memorandum of Agreement, give retroactive effect to its
terms, and make its unit employees whole for any losses
attributable to the Respondent’s failure to execute the
agreement. Backpay shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Netco Waterproofing Co., East Elmhurst,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Bricklayers and Allied Craftsworkers Local 1, New York
B.A.C.I.U., AFL–CIO, as the exclusive representative of
the employees in the bargaining unit set forth below, by
failing and refusing to execute a Memorandum of
Agreement containing the same terms as were agreed to
between the Union and the Building Restoration
Contractors Association in about June 2000.

All pointers, cleaners, and caulkers employed by the
Respondent for jobs within the geographic confines of
the City of New York, Nassau and Suffolk Counties.
(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) Execute and implement the Memorandum of
Agreement containing the same terms as were agreed to
between the Union and the Building Restoration Con-
tractors Association in about June 2000, give retroactive
effect to that agreement, and make the unit employees
whole for any losses they have suffered as a result of the
Respondent’s failure to execute the agreement, with in-
terest, in the manner set forth in the remedy section of
this decision.
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facility in East Elmhurst, New York, copies of the
attached notice marked “Appendix.”1 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized 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 June 29,
2000.
(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 com-
ply.
Dated, Washington, D.C. June 13, 2001

Peter J. Hurtgen, Chairman

John C. Truesdale, Member

Dennis P. Walsh, Member

1 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.”
NETCO WATERPROOFING CO. 3

(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail and refuse to bargain in good faith
with Bricklayers and Allied Craftsworkers Local 1, New
York B.A.C.I.U., AFL–CIO, as the exclusive representa-
tive of the employees in the bargaining unit set forth be-
low, by failing and refusing to execute a Memorandum
of Agreement containing the same terms as were agreed
to between the Union and the Building Restoration Con-
tractors Association in about June 2000.

All pointers, cleaners, and caulkers employed by us for
jobs within the geographic confines of the City of New
York, Nassau and Suffolk Counties.

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 execute and implement the Memorandum of
Agreement containing the same terms as were agreed to
between the Union and the Building Restoration
Contractors Association in about June 2000, give
retroactive effect to that agreement, and make the unit
employees whole for any losses they have suffered as a
result of our failure to exe cute the agreement, with
interest. NETCO WATERPROOFING CO.