S&J Concrete, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1996

322 N.L.R.B. 63 (N.L.R.B. 1996)

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NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
S&J Concrete, Incorporated and Teamsters Local
Union No. 682, affiliated with the International
Brotherhood of Teamsters, AFL–CIO. Case 14–
CA–23644
October 21, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by the Union on June 12, 1995,
the General Counsel of the National Labor Relations
Board issued a complaint on October 5, 1995, against
S&J Concrete, Incorporated, the Respondent, alleging
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.
Thereafter, on January 8, 1996, the Regional Direc­
tor for Region 14 approved an informal settlement
agreement entered into by the Respondent and the
Union disposing of the allegations in the complaint.
However, on February 22, 1996, the Regional Director
issued an order revoking the settlement and an amend­
ed complaint alleging that the Respondent has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. Although properly served copies of the charge
and the amended complaint, the Respondent failed to
file an answer.
Thereafter, the parties entered into a second informal
settlement agreement, approved by the Regional Direc­
tor on April 4, 1996, disposing of the allegations of the
amended complaint. However, on August 16, 1996, the
Union filed an amended charge alleging various
8(a)(1) and (5) violations.
On the charge and amended charge, the General
Counsel of the National Labor Relations Board issued
a second order revoking settlement, and second amend­
ed complaint on August 20, 1996, against S&J Con­
crete, Incorporated, the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the National Labor
Relations Act. Although properly served copies of the
charge, amended charge, and second amended com­
plaint, the Respondent failed to file an answer.
On September 23, 1996, the General Counsel filed
a Motion for Default Summary Judgment with the
Board. On September 25, 1996, 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 allega­
tions 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 Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in a com­
plaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un­
less good cause is shown. In addition, the complaint,
amended complaint, and second amended complaint af­
firmatively note that unless an answer is filed within
14 days of service, all the allegations in the respective
complaint will be considered admitted. Further, the un­
disputed allegations in the Motion for Default Sum­
mary Judgment disclose that the Region, by letter
dated September 4, 1996, notified the Respondent that
unless an answer were received by September 9, 1996,
a Motion for Default Summary Judgment would be
filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Default Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Missouri
corporation, with an office and place of business in St.
Louis, Missouri, has been engaged in the nonretail sale
of concrete ready mix. During the 12-month period
ending July 31, 1996, the Respondent, in conducting
its business operations, purchased and received at its
St. Louis, Missouri facility goods valued in excess of
$50,000 from other enterprises, located within the
State of Missouri, each of which other enterprises had
received these goods directly from points outside the
State of Missouri. 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
The following employees of the Respondent con­
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All drivers employed by the Respondent at its St.
Louis, Missouri facility EXCLUDING all office
clerical and professional employees, guards, and
supervisors as defined in the Act.
On August 30, 1993, the Union was certified as the
exclusive collective-bargaining representative of the
unit. At all times since that date, based on Section 9(a)
322 NLRB No. 63
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Act, the Union has been the exclusive collec­
tive-bargaining representative of the unit.
On February 15, 1995, the Respondent and the
Union met for the purposes of collective bargaining
with respect to wages, hours, and other terms and con­
ditions of employment. During this meeting the Re­
spondent advised the Union that the Respondent would
not sign any collective-bargaining agreement with the
Union until it had a batch plant of its own.
About January 9, 1996, the Respondent and the
Union scheduled a meeting at the Respondent’s facility
on January 11, 1996, for the purposes of collective
bargaining. About January 11, 1996, the Respondent
failed to appear for the meeting with the Union. From
January 11 through about April 1, 1996, the Respond­
ent failed and refused to meet with the Union for the
purposes of collective bargaining.
About June 13, 1996, the Union and the Respondent
reached complete agreement on the terms and condi­
tions of employment of the unit to be incorporated into
a collective-bargaining agreement. Since about July 1,
1996, the Union has requested that the Respondent
execute a written contract containing this agreement,
but since that date the Respondent has failed and re-
fused to do so.
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has been failing and refusing to bargain col­
lectively and in good faith with the exclusive collec­
tive-bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(5) and 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 de-
signed to effectuate the policies of the Act. Specifi­
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to meet and bargain
with the Union and to execute the collective-bargain­
ing agreement reached by the parties about June 13,
1996, we shall order the Respondent to execute the
agreement, give retroactive effect to that agreement,
and make the unit employees whole for any losses at­
tributable to the Respondent’s failure to execute and
implement 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 prescribed in New Horizons for the Re­
tarded, 283 NLRB 1171 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, S&J Concrete, Incorporated, St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Advising Teamsters Local Union No. 682, affili­
ated with the International Brotherhood of Teamsters,
AFL–CIO that it will not sign any collective-bargain­
ing agreement with the Union until the Respondent has
a batch plant of its own.
(b) Failing or refusing to meet with the Union for
the purposes of collective bargaining with respect to
wages, hours, and other terms and conditions of em­
ployment of the unit:
All drivers employed by the Respondent at its St.
Louis, Missouri facility EXCLUDING all office
clerical and professional employees, guards, and
supervisors as defined in the Act.
(c) Refusing to execute a written contract containing
the terms of the agreement reached by the parties.
(d) In any like or related manner interfering with,
restraining, 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) On request, meet and bargain in good faith with
the Union as the exclusive collective-bargaining rep­
resentative of the employees in the unit.
(b) Execute the collective-bargaining agreement
reached by the parties about June 13, 1996, give retro­
active effect to that agreement, and make the unit em­
ployees whole for any losses attributable to the Re­
spondent’s failure to execute and implement the agree­
ment in the manner set forth in the remedy section of
this decision.
(c) 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 pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post
at its facility in St. Louis, Missouri, copies of the at­
tached notice marked ‘‘Appendix.’’1 Copies of the no­
tice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent and maintained for 60 consecutive days in
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
National 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.’’
S&J CONCRETE, INC. 3
conspicuous 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 pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since June 12, 1995.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 21, 1996
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
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John E. Higgins Jr., Member
(SEAL) 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 or­
dered us to post and abide by this notice.
WE WILL NOT advise Teamsters Local Union No.
682, affiliated with the International Brotherhood of
Teamsters, AFL–CIO that we will not sign any collec­
tive-bargaining agreement with them until we have a
batch plant of our own.
WE WILL NOT fail or refuse to meet with the Union
for the purposes of collective bargaining with respect
to wages, hours, and other terms and conditions of em­
ployment of our unit employees:
All drivers employed by the Employer at its St.
Louis, Missouri facility EXCLUDING all office
clerical and professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT refuse to execute a written contract
containing the terms of the agreement reached with the
Union.
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, on request, meet and bargain with the
Union as the exclusive collective-bargaining represent­
ative of the employees in the unit.
WE WILL execute the collective-bargaining agree­
ment reached with the Union about June 13, 1996,
give retroactive effect to that agreement, and make our
unit employees whole for any losses attributable to our
failure to execute and implement the agreement, in the
manner set forth in a decision of the National Labor
Relations Board.
S&J CONCRETE, INCORPORATED