RMC Constructors, Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1982

266 N.L.R.B. 1064 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RMC Constructors, Inc. and Sheet Metal Workers'
Local Union No. 359, Sheet Metal Workers'
International Association. Case 28-CA-6639
8 July 1982
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND HUNTER
Upon a charge filed on 18 September 1981 by
Sheet Metal Workers' Local Union No. 359, Sheet
Metal Workers' International Association, herein
called the Union, and duly served on RMC Con-
structors, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 28,
issued a complaint on 18 May 1982 against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5),
(3), 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 proceeding. Respondent failed to
file an answer to the complaint.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent vio-
lated Section 8(a)(5), (3), and (1) by refusing to
execute an agreed-upon collective- bargaining
agreement, by refusing to honor and abide by the
terms of that agreement, by unilaterally subcon-
tracting unit work, and by discharging employees.
By a letter dated 13 September 1982 counsel for
the General Counsel advised Respondent that the
Region had not received Respondent's answer to
the complaint. It further informed Respondent that
unless an answer was received forthwith there
would be a recommendation that a motion be filed
with the Board for summary judgment in the
matter. There was no response to the letter.
On 15 October 1982 counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on 20 October
1982 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
filed no response to the Notice To Show Cause.
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:
266 NLRB No. 183
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, 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
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 served on Respondent stated that,
unless an answer was filed within 10 days from the
service thereof, "all of the allegations in the com-
plaint shall be deemed to be admitted to be true
and shall be so found by the Board." As noted
above, Respondent has not filed an answer to the
complaint, nor has it responded to the Notice To
Show Cause. No good cause to the contrary
having been shown, in accordance with the rule set
forth above, the allegations of the complaint are
deemed admitted and found to be true. According-
ly, we 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
At all material times, Respondent has been a
Colorado corporation and has maintained a facility
at 1855 West Union Avenue, Englewood, Colora-
do, where it is engaged in business as a roofing
contractor in the building and construction indus-
try.
During the calendar year ending 31 December
1981, a period representative of Respondent's gen-
eral operations, Respondent provided services
within the State of Arizona valued in excess of
$50,000 for Forrest City Dillon, Inc., herein called
FCD. FCD, in turn, during the relevant period,
purchased and received at its Tucson, Arizona, job-
' In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of Respondent to
contest either the factual allegations or the legal conclusions of the Gen-
eral Counsel's complaint. Thus, the Chairman regards this proceeding as
being essentially a default judgment which is without precedential value.
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RMC CONSTRUCTORS, INC.
site products, goods, and materials valued in excess
of $50,000 directly in interstate commerce from
suppliers located in States of the United States
other than the State of Arizona.
On the basis of the foregoing, we find that Re-
spondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act. We further find that it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' Local Union No. 359,
Sheet Metal Workers' International Association, is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein, FCD engaged Re-
spondent as its roofing subcontractor at the Tucson
Mall jobsite referred to above, which required Re-
spondent to perform, inter alia, certain sheet metal
work. In furtherance of its subcontract, Respond-
ent, on or about 14 July 1981,2 and thereafter, re-
quested the Union to refer sheet metal workers
from the Union's hiring hall to Respondent to be
employed at the Tucson Mall jobsite. On or about
14 July, and thereafter, the Union, pursuant to Re-
spondent's request, referred sheet metal workers to
Respondent from its hiring hall who were then
hired by Respondent. At all times material herein,
all of the sheet metal workers referred to Respond-
ent by the Union from its hiring hall and thereafter
employed by Respondent at the Tucson Mall job-
site were members of, and/or represented for the
purposes of collective bargaining by, the Union.
All journeymen and apprentice sheet metal
workers employed by Respondent at the Tucson
Mall jobsite at Tucson, Arizona, excluding all
other employees, office clerical employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
On or about 27 July, and again on or about 29
July, Respondent agreed to abide by, and be bound
to, all of the terms and provisions of the then cur-
rently effective collective-bargaining agreement be-
tween the Sheet Metal and Air-Conditioning Con-
tractors of Southern Arizona and the Union, effec-
tive for the period from I July 1980 through 1 July
1982, herein called the Local 359-Tucson Agree-
ment, covering the employees of Respondent in the
unit described above. Respondent further agreed to
execute a written agreement binding it to the Local
359-Tucson Agreement.
s All subsequent dates herein are in 1981 unless otherwise indicated.
At all times material herein, the Union has been
the exclusive representative under Section 9(a) of
the Act of the employees in the above-described
unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment.
Since on or about 27 July Respondent has failed
and refused to execute the Local 359-Tucson
Agreement, pursuant to the Union's request that it
do so, and has failed and refused to honor and
abide by the terms and provisions of that agree-
ment.
From on or about 27 July to on or about 29 July
the unit employees of Respondent ceased work
concertedly and engaged in a strike.
On or about 31 July Respondent discharged all
of the unit employees and, at all times since 29
July, has failed and refused to reinstate said em-
ployees to their former positions with Respondent.
Respondent terminated its employees and failed
and refused to reinstate them because of their union
and other protected concerted activities, including,
but not limited to, engaging in a work stoppage
and strike on or about 27 July to on or about 29
July.
On or about 31 July Respondent subcontracted
the sheet metal work being performed by its em-
ployees to another employer without prior notice
to the Union and without having afforded the
Union an opportunity to negotiate and to bargain
with respect thereto.
On the basis of the foregoing, we find that by re-
fusing to execute the agreed-upon collective-bar-
gaining agreement, by refusing to honor and abide
by the terms of that agreement, by unilaterally sub-
contracting unit work, and by discharging its em-
ployees and failing and refusing to reinstate them,
Respondent has violated Section 8(a)(5), (3), 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 1, 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
meaning of Section 8(a)(5), (3), and (1) of the Act,
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we shall order that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Specifically, we have found that Respondent
failed to execute the contract agreed upon by the
parties and subcontracted sheet metal work to an-
other employer without giving the Union the op-
portunity to negotiate and bargain with respect
thereto in violation of Section 8(a)(5) and (1) of the
Act. We have also found that Respondent terminat-
ed its employees because they supported the Union
in violation of Section 8(a)(3) and (1) of the Act. In
order to dissipate the effects of these unlawful ac-
tions, we shall order Respondent to execute the
agreed-upon collective-bargaining agreement and
to restore the status quo ante by restoring the work
of unit employees. Respondent shall recall the ter-
minated employees and offer to reinstate them to
the positions they held before their unlawful termi-
nations, or, if these positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges.
Respondent shall make its employees whole by
paying them backpay for any loss of wages and
other benefits which resulted from Respondent's
unfair labor practices. Backpay shall be computed
in accordance with the formula stated in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest
computed in the manner set forth in Florida Steel
Corp., 231 NLRB 651 (1977). See, generally, Isis
Plumbing Co., 138 NLRB 716 (1962).
In addition, Respondent shall make whole its em-
ployees by making any trust payments which may
be required under the terms of the collective-bar-
gaining agreement,3 and by reimbursing its em-
ployees for any expenses ensuing from Respond-
ent's unlawful failure to make such required pay-
ments, as set forth in Kraft Plumbing & Heating,
Inc., 252 NLRB 891, fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981). All payments to employees
shall be made with interest as prescribed in Florida
Steel Corp., supra.4
' 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
of 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, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of the funds with-
held, additional administrative costs, etc., but not collateral losses.
Merryweather Optical Co., 240 NLRB 1213 (1979).
4 We recognize that, because of the nature of the construction indus-
try, the facts of this case may present issues concerning the proper appli-
cation of the remedy adopted herein. The resolution of such issues may
appropriately be left to the compliance stage of the proceeding.
CONCLUSIONS OF LAW
1. RMC Constructors, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Sheet Metal Workers' Local Union No. 359,
Sheet Metal Workers' International Association, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All journeymen and apprentice sheet metal
workers employed by Respondent at the Tucson
Mall jobsite at Tucson, Arizona, excluding all
other employees, office clerical employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. By refusing to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all employees of Re-
spondent in the appropriate unit, by refusing to
execute the agreed-upon collective-bargaining
agreement between the parties, by refusing to
honor and abide by the terms of that agreement,
and by unilaterally subcontracting unit work with-
out affording the Union an opportunity to negoti-
ate and bargain with respect thereto, Respondent
has engaged in an unfair labor practice within the
meaning of Section 8(a)(5) of the Act.
5. By terminating its employees and by failing
and refusing to reinstate them because they sup-
ported the Union, Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(3) and (1) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of rights guaranteed
them in Section 7 of the Act and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
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,
RMC Constructors, Inc., Englewood, Colorado, its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Sheet Metal Work-
ers' Local Union No. 359, Sheet Metal Workers'
1066
RMC CONSTRUCTORS, INC.
International Association, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All journeymen and apprentice sheet metal
workers employed by Respondent at the
Tucson Mall jobsite at Tucson Arizona, ex-
cluding all other employees, office clerical em-
ployees, guards, and supervisors as defined in
the Act.
(b) Refusing to execute an agreed-upon collec-
tive-bargaining agreement with the Union, refusing
to abide by the terms of that agreement, and unilat-
erally subscontracting unit work.
(c) Discharging and failing and refusing to rein-
state employees because they support the Union.
(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise 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:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
(b) Execute the agreed-upon collective-bargain-
ing agreement and honor, abide by, and apply the
terms and conditions of employment provided by
that agreement to its Tucson Mall jobsite.
(c) Restore the previous method of operations at
the Tucson Mall jobsite.
(d) Recall the terminated employees and offer
them immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and make them whole for any loss of
wages and other benefits resulting from Respond-
ent's discrimination against them, in the manner set
forth in the section of this Decision and Order enti-
tled "The Remedy."
(e) Make whole the employees in the appropriate
unit by transmitting any payments owed to the
benefit funds if such funds are established by the
terms of its collective-bargaining agreement with
the Union, and by reimbursing unit employees for
any expenses ensuing from Respondent's unlawful
failure to make such required payments, in the
manner set forth in the section of this Decision and
Order entitled "The Remedy."
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Tucson Mall jobsite in Tucson,
Arizona, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 28,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent 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. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 28,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
5 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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Sheet Metal Workers' Local Union No.
359, Sheet Metal Workers' International Asso-
ciation, as the exclusive representative of the
employees in the following appropriate unit:
All journeymen and apprentice sheet metal
workers employed at our Tucson Mall job-
site at Tucson, Arizona, excluding all other
employees, office clerical employees, guards,
and supervisors as defined in the Act.
WE WILL NOT refuse to execute the agreed-
upon collective-bargaining agreement with the
Union, refuse to abide by the terms of that
agreement, or unilaterally subcontract unit
work.
WE WILL NOT discharge and fail and refuse
to reinstate employees because they support
the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act.
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain with the
above-named Union as the exclusive represent-
ative of all employees in the bargaining unit
described above with respect to rates of pay,
wages, hours, and other terms and conditions
of employment.
WE WILL execute the agreed-upon collec-
tive-bargaining agreement and honor, abide by,
and apply the terms and conditions of employ-
ment provided by that agreement to our
Tucson Mall jobsite.
WE WILL restore our previous method of
operation at the Tucson Mall jobsite.
WE WILL recall the terminated employees
and offer them immediate and full reinstate-
ment to their former positions or, if those posi-
tions no longer exist, to substantially equiva-
lent positions, without prejudice to their se-
niority and other rights and privileges, and WE
WILL make them whole, with interest, for any
loss of earning and other benefits suffered by
reason of the discrimination practiced against
them.
WE WILL make whole the employees in the
appropriate unit by transmitting any payments
owed to the trust funds pursuant to the terms
of our collective-bargaining agreement with
the Union, and by reimbursing unit employees,
plus interest, for any expenses ensuing from
our lawful failure to make such required pay-
ments.
RMC CONSTRUCTORS, INC.
1068