Shannon Construction, Inc

National Labor Relations Board - Board Decisions

Feb 22, 1989

292 N.L.R.B. 1276 (N.L.R.B. 1989)

1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shannon Construction , Inc and International Broth-
erhood of Painters and Allied Trades, Local
Union No 7 Case 8-CA-20596
February 22, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by the Union December 3,
1987, and an amended charge filed on January 28,
1988, the General Counsel of the National Labor
Relations Board issued a complaint March 31,
1988, against Shannon Construction, Inc, the Re
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act The Respondent has failed to file an answer
On May 23, 1988, the General Counsel filed a
Motion for Summary Judgment On May 25, 1988,
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 On June 6, 1988,
the Union also filed a Motion for Summary Judg
ment On June 13, 1988, the Respondent's counsel
filed a response to the Board's Notice to Show
Cause On December 16, 1988, the Board issued a
Supplemental Notice to Show Cause, and the Re-
spondent's counsel filed a response to the Board's
supplemental notice on December 23, 1988
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
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 14 days from service of the complaint,
unless good cause is shown The complaint states
that unless an answer is filed within 14 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 Summary Judgment dis
close that counsel for the General Counsel tele
phoned the Respondent's counsel on April 29,
1988, and was told that the Respondent did not
intend to file an answer At that time, counsel for
the General Counsel advised the Respondent's
counsel orally and in a letter dated April 29, 1988,
that if an answer was not filed by the close of busi
ness on May 6, 1988, the General Counsel would
move for summary judgment As noted, the Re-
spondent has failed to file an answer to the com
plaint
The response to the Notice to Show Cause,
signed by the Respondent's counsel, states that the
Respondent has sent to the Union payment in full
that is due," and "thus has no further reason to
show cause why payment has not been made " The
response also provides that "there is no further
reason for the General Counsel's Motion for Sum-
mary Judgment to be granted " Attached to the re-
sponse is a letter from the Respondent's counsel ad
dressed to the Union's counsel along with a copy
of a check payable to the Union in the amount of
$1902 The letter provides that the check is `for
full payment as I understand it for the above refer-
enced matter," and that [t]his check is provided to
you only under the condition that you agree to do
whatever is needed to terminate the NLRB
action " The response does not provide any expla-
nation why the Respondent did not file an answer
to the complaint, nor does it provide any defense
to the allegations in the complaint
The response to Supplemental Notice to Show
Cause submitted by the Respondent's counsel pro
vides that all amounts due and owing to the Union
have been paid, and that the hearing in this matter
originally set for June 27, 1988, was indefinitely
postponed by the Regional Director for Region 8
Thus, it was understood by the Respondent that
this matter was settled The response to the Board's
Supplemental Notice to Show Cause, however,
also does not provide any explanation why the Re
spondent did not file an answer to the complaint,
nor does it provide any defense to the allegations
in the complaint
Under these circumstances we find that the Re-
spondent has not shown good cause for its failure
to file a timely answer In the absence of good
cause being shown for the failure to file a timely
answer, we grant the General Counsel's Motion for
Summary Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, an Ohio corporation, with an
office and place of business in Bedford Heights,
Ohio, has been engaged as a general contractor in
the construction business at various locations, in
cluding locations in the Toledo, Ohio area, where
it annually, in the course and conduct of its busi
ness operations, purchases and receives at its Bed
ford Heights, Ohio facility products, goods, and
materials valued in excess of $50,000 directly from
points outside the State of Ohio We find that the
Respondent is an employer engaged in commerce
292 NLRB No 137
SHANNON CONSTRUCTION 1277
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
The Union represents the following employees of
the Respondent, which constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act
All painting and decorating employees em-
ployed by the Employer in the Toledo, Ohio
area but excluding all other employees and su-
pervisors as defined in the Act
About July 1, 1986, the Toledo Chapter Painting
and Decorating Contractors of America, Inc and
the Union entered into a collective-bargaining
agreement (Association Agreement), which by its
terms is effective for the period of July 1, 1986,
through June 30, 1989 About April 14, 1987, the
Respondent entered into an agreement that bound
the Respondent to the terms and conditions of em-
ployment of the Association Agreement during all
times material herein
Pursuant to article II of the agreement between
the Respondent and the Union, the Respondent is
obligated to contribute specified amounts of money
into various benefit funds, including the I B P A T
National Pension Fund Since August 1987 and
continuing, the Respondent has unilaterally failed
and refused to make the required contributions to
the I B P A T National Pension Fund
CONCLUSIONS OF LAW
1 By failing and refusing to make the required
contributions to the I B P A T National Pension
Fund from August 1987 and continuing, the Re
spondent has failed and refused to bargain collec
tively with the representative of its employees in
the above-described unit , and the Respondent
thereby has been engaging in unfair labor practices
in violation of Section 8(a)(5) and (1) of the Act
2 The unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Having found that the Respondent has engaged
in certain 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
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to transmit
the contributions to the I B P A T National Pen-
sion Fund required by the collective bargaining
agreement effective from July 1, 1986, through
June 30, 1989, we shall order the Respondent to
transmit the pension fund contributions it owes to
the appropriate fund 1 Any additional amounts ap-
plicable to the delinquent payments shall be paid in
accordance with the criteria set forth in
Merryweather Optical Co, 240 NLRB 1213, 1216
(1979)
The Respondent shall also make unit employees
whole for any loss of pension plan credits or bene-
fits resulting from the Respondent's failure to make
required pension plan contributions 2 This shall
also include reimbursing employees for any contri-
butions they themselves have made for the mainte-
nance of the pension plan fund after the Respond
ent unlawfully discounted contributions to the
fund, with interest as prescribed in New Horizons
for the Retarded 3
ORDER
The National Labor Relations Board orders that
the Respondent, Shannon Construction, Inc, Bed-
ford Heights, Ohio, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively with the
Union by failing and refusing, without prior notice
to or consent of the Union, to make contractually
required pension fund contributions
(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) Pay all delinquent pension fund contributions
from August 1987 until the present required by the
parties collective-bargaining agreement and make
the employees whole for any losses resulting from
the Respondent's failure to pay pension fund con
tributions, in the manner set forth in the remedy
section of this decision
(b) Preserve and, on 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 owed under the terms of this Order
' Any pension fund contributions that the Respondent owes shall of
course be offset by the amounts that the Respondent may have paid to
the Union for pension fund contributions since August 1987 including
the $1902 allegedly sent to the Charging Party on June 6 1988
2 Kraft Plumbing & Heating 252 NLRB 891 fn 2 (1980) enfd 661 F 2d
940 (9th Cir 1981)
3 283 NLRB 1173 (1987) Interest on and after January 1 1987 will be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Post at its facility in Bedford Heights, Ohio,
copies of the attached notice marked "Appendix 4
Copies of the notice, on forms provided by the Re-
gional Director for Region 8, after being signed by
the Respondents authorized representative, shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 Nation
al Labor Relations Board shall read Posted Pursuant 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
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
WE WILL NOT refuse to bargain with the Inter
national Brotherhood of Painters and Allied
Trades, Local Union No 7, by failing to make con
tractually required pension fund contributions
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 transmit to the I B P A T National
Pension Fund those contributions required ander
the terms of article II of the collective bargaining
agreement that we withheld, and WE WILL make
employees whole for any losses resulting from our
failure to make such payments, with interest
SHANNON CONSTRUCTION, INC