Secoma Glass & Aluminum Co.

National Labor Relations Board - Board Decisions

Jul 21, 2003

339 N.L.R.B. 95 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
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.
Secoma Glass & Aluminum Co. and Glaziers, Archi­
tectural Metal and Glassworkers, Local 188, Af­
filiated with International Union of Painters and
Allied Trades, District Council #5, AFL–CIO.
Case 19–CA–28244
July 21, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the amended complaint. Upon a charge and
an amended charge filed by the Union on October 2, and
October 29, 2002, the General Counsel issued an
amended complaint on March 4, 2003, against Secoma
Glass & Aluminum Co., the Respondent, alleging that it
has violated Section 8(a)(1) and (5) of the Act. The Re­
spondent failed to file an answer.
On April 14, 2003, the General Counsel filed a Motion
for Summary Judgment with the Board.1 On April 16,
2003, the Board issued an order transferring the proceed­
ing 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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 amended complaint affirmatively
notes that unless an answer is filed within 14 days of
service, all the allegations in the complaint will be con­
sidered admitted. Further, the undisputed allegations in
the motion disclose that the Region, by letter dated
March 24, 2003, notified the Respondent that unless an
answer were received by March 31, 2003, a Motion for
Default Judgment would be filed.
In the absence of good cause being shown for the fail­
ure to file a timely answer, we grant the General Coun­
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
1 We grant the General Counsel’s subsequent motion to restyle the
caption of this motion as a Motion for Default Judgment.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Washington
corporation, with an office and place of business in Fed­
eral Way, Washington, has been engaged in the business
of glass installation and removal. During the 12-month
period preceding issuance of the amended complaint, a
representative period, the Respondent, in the course and
conduct of its business operations, purchased and caused
to be transferred and delivered to its facilities within the
State of Washington, goods and materials valued in ex­
cess of $50,000 directly from sources outside the State of
Washington, or from suppliers within the State of Wash­
ington, which in turn obtained such goods and materials
from sources outside the State of Washington.
We find that the Respondent 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, Gerald W. Jackson held the posi­
tion of Respondent’s president, and has been a supervisor
within the meaning of Section 2(11) of the Act and an
agent acting on behalf of the Respondent within the
meaning of Section 2(13) of the Act.
The employees of the Respondent, as described in the
collective-bargaining agreement between the Respondent
and the Union, effective by its terms from July 1, 1999
through June 30, 2004 (the contract), constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
At all material times, the Union has been the desig­
nated exclusive collective-bargaining representative of
the unit and has been recognized as such by the Respon­
dent. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which is the contract, described above. 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.
About August 26, 2002, the Union requested that the
Respondent furnish the Union with a list of all employ­
ees who had worked for the Respondent since August 1,
2002 (employee information).2 About October 14, 2002,
the Union requested that the Respondent furnish the Un-
2 The August 26, 2002 letter requesting this information stated: “A
grievance has been filed against Secoma Glass. The issue of this griev­
ance is the use of glaziers by Secoma who are not members of Glaziers
Local #188. Please supply Glaziers and Glassworkers Local #188 with
a complete list of employees who have worked for Secoma Glass from
August 1st, 2002, for any length of time.”
339 NLRB No. 95
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion with information showing any and all payments the
Respondent had made to the trust funds, as required by
the contract, from January 1, 2001 through September
30, 2002 (payment information).3 About October 4, Oc­
tober 18, and October 28, 2002, the Union requested that
the Respondent furnish the Union with information about
the business status of the Respondent and alleged related
companies, Phoenix Glass and THL Construction (busi­
ness information).4
The employee information, payment information, and
business information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit. Since about August 26, 2002, the Respondent
has failed and refused to furnish the Union with the em­
ployee information; since about October 14, 2002, the
Respondent has failed and refused to furnish the Union
with the payment information; and since October 4,
2002, the Respondent has failed and refused to furnish
the Union with all of the business information.
Since about April 2, 2002, the Respondent has repudi­
ated the contract by, among other things, failing to make
trust fund, Labor Management Cooperation Fund, Mar­
ket Recovery, Rebound, and vacation pay payments, and
by failing to transmit dues deducted from employee pay-
checks to the Union, as required by the contract.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been failing and refusing to bargain with the
exclusive collective-bargaining representative of the em­
ployees, and has thereby engaged in unfair labor prac­
tices affecting commerce within the meaning of Section
8(a)(5) and (1) 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
3 The October 14, 2002 letter requesting this information stated:
“Recently a grievance was filed against Secoma Glass & Aluminum for
failure to pay benefits and vacation pay as per the Collective-
Bargaining Agreement. Glaziers Local #188 requests information from
Secoma Glass & Aluminum of any and all payments made to trusts
from January 1, 2001 through September 30, 2002.”
4 The October 4, 2002 letter requesting this information stated: “The
operations of Seacoma [sic] Glass (Seacoma) and Phoenix Glass
(Phoenix) and/or THL Construction (THL) have given me reason to
question whether THL and/or Phoenix may be operating as an alter ego
or disguised continuance of Seacoma or as an integrated enterprise with
Seacoma. Thus, I am requesting you supply me with the following
information ASAP as to Seacoma, Phoenix and THL.” Attached to this
letter was an 18-page document containing 79 questions about the three
allegedly related businesses. The October 18 letter repeated this re-
quest for information. The October 28 letter made an added request for
business information, in the form of several additional questions about
the three allegedly related businesses.
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing to provide relevant and necessary informa­
tion requested by the Union on August 26, and October
4, 14, 18, and 28, 2002, with respect to employee infor­
mation, payment information, and business information,
we shall order the Respondent to provide the Union with
the requested information. In addition, having found
that the Respondent violated Section 8(a)(5) and (1) by
failing to make trust fund, Labor Management Coopera­
tion Fund, Market Recovery, and Rebound payments, as
required by the contract, we shall order the Respondent
to make all contractually-required payments or contribu­
tions to the funds that have not been made since April 2,
2002, including any additional amounts due the funds in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).5 The Respondent shall also
reimburse unit employees for any expenses ensuing from
its failure to make the fund payments or contributions, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
Further, having found that the Respondent violated Sec­
tion 8(a)(5) and (1) by failing to make vacation pay pay­
ments to the employees, as required by the contract, we
shall order the Respondent to make unit employees
whole by paying them the vacation pay that has not been
paid since April 2, 2002. All payments to unit employ­
ees shall be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to remit dues deducted
from employee paychecks to the Union, as required by
the contract, we shall order the Respondent to remit all
dues that have been withheld from the Union since April
2, 2002, with interest as prescribed in New Horizons for
the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Secoma Glass & Aluminum Co., Federal
Way, Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
5 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin­
quent contributions during the period of the delinquency, the Respon­
dent will reimburse the employee, but the amount of such reimburse­
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
SECOMA GLASS & ALUMINUM CO. 3
(a) Refusing to bargain collectively with Glaziers, Ar­
chitectural Metal and Glassworkers, Local 188, affiliated
with International Union of Painters and Allied Trades,
District Council #5, AFL–CIO, by refusing to furnish the
Union with information that is relevant and necessary to
the performance of its duties as the exclusive bargaining
representative of the unit. The appropriate unit is the
employees of the Respondent, as described in the collec­
tive-bargaining agreement between the Respondent and
the Union, effective by its terms from July 1, 1999
through June 30, 2004.
(b) Repudiating the parties’ 1999–2004 collective-
bargaining agreement by, among other things, failing to
make trust fund, Labor Management Cooperation Fund,
Market Recovery, Rebound, and vacation pay payments,
and by failing and refusing to transmit dues deducted
from employee paychecks to the Union, as required by
the contract.
(c) 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) Honor and comply with the terms and conditions of
the parties’ 1999–2004 collective-bargaining agreement.
(b) Furnish the Union with the information it requested
on August 26, 2002, regarding a list of all employees
who had worked for the Respondent since August 1,
2002; on October 14, 2002, regarding all payments made
by the Respondent to the trust funds from January 1,
2001 through September 30, 2002, as required by the
parties’ 1999–2004 collective-bargaining agreement; and
on October 4, 18, and 28, 2002, regarding the business
status of the Respondent and its alleged related comp a­
nies, Phoenix Glass and THL Construction.
(c) Pay into the appropriate funds and accounts all trust
fund, Labor Management Cooperation Fund, Market
Recovery, and Rebound payments that it failed to make
since April 2, 2002, under the terms of the parties’ 1999–
2004 collective-bargaining agreement, and reimburse the
unit employees for any expenses resulting from its failure
to make the required payments, with interest, in the man­
ner set forth in the remedy section of this decision.
(d) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s repudiation of the contract,
including paying them the vacation pay due them since
April 2, 2002, under the parties’ 1999–2004 collective-
bargaining agreement, with interest, in the manner set
forth in the remedy section of this decision.
(e) Remit to the Union all dues deducted from em­
ployee paychecks since April 2, 2002, as required by the
parties’ 1999–2004 collective-bargaining agreement,
with interest, in the manner set forth in the remedy sec­
tion of this decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Federal Way, Washington, copies of the
attached notice marked “Appendix.”6 Copies of the no­
tice, on forms provided by the Acting Regional Director
for Region 19, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon­
dent and maintained for 60 consecutive days in con­
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, 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 facility involved in these proceedings, the Re­
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 2, 2002.
(h) Within 21 days after service by the Region, file
with the Acting Regional Director a sworn certification
of a responsible official on a form provided by the Re­
gion attesting to the steps that the Respondent has taken
to comply.
Dated, Washington, D.C., July 21, 2003
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
6 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.”
4 DECISIONS 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

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 any union
Choose representatives to bargain with us 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 refuse to bargain collectively with Gla­
ziers, Architectural Metal and Glassworkers, Local 188,
affiliated with International Union of Painters and Allied
Trades, District Council #5, AFL–CIO, by refusing to
furnish the Union with information that is relevant and
necessary to the performance of its duties as the exclu­
sive bargaining representative of the unit. The appropri­
ate unit is our employees, [of the Respondent] as de-
scribed in the collective-bargaining agreement between
us, [the Respondent] and the Union, effective by its
terms from July 1, 1999 through June 30, 2004.
WE WILL NOT repudiate our 1999–2004 collective-
bargaining agreement by, among other things, failing to
make trust fund, Labor Management Cooperation Fund,
Market Recovery, Rebound, and vacation pay payments,
and by failing and refusing to transmit dues deducted
from employee paychecks to the Union, as required by
the contract.
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 honor and comply with the terms and condi­
tions of our 1999–2004 collective-bargaining agreement.
WE WILL furnish the Union with the information it re-
quested on August 26, 2002, regarding a list of all
employees who had worked for us since August 1, 2002;
on October 14, 2002, regarding all payments made by us
to the trust funds from January 1, 2001 through
September 30, 2002, as required by our 1999–2004
collective-bargaining agreement; on October 4, 18, and
28, 2002, regarding the business status of our company
and our alleged related companies, Phoenix Glass and
THL Construction.
WE WILL pay into the appropriate funds and accounts
all trust fund, Labor Management Cooperation Fund,
Market Recovery, and Rebound payments that we failed
to make since April 2, 2002, under the terms of our
1999–2004 collective-bargaining agreement, with inter­
est.
WE WILL make whole our unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our repudiation of the contract including pay­
ing them the vacation pay due them since April 2, 2002
under our 1999–2004 collective-bargaining agreement,
with interest.
WE WILL remit to the Union all dues deducted from
employee paychecks since April 2, 2002, as required by
our 1999–2004 collective-bargaining agreement, with
interest.
SECOMA GLASS & ALUMINUM CO.