Thoele Asphalt Paving

National Labor Relations Board - Board Decisions

Aug 27, 2009

354 NLRB No. 69 (N.L.R.B. 2009)

354 NLRB No. 69
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.
Thoele Asphalt Paving, Inc. and Teamsters Local Un-
ion No. 682, affiliated with International Broth-
erhood of Teamsters. Case 14–CA–29453
August 27, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
Teamsters Local Union No. 682, affiliated with Interna-
tional Brotherhood of Teamsters (the Union) on Septem-
ber 3, 2008, the General Counsel issued the complaint on
April 21, 2009, against Thoele Asphalt Paving, Inc. (the
Respondent), alleging that it has violated Section 8(a)(5)
and (1) of the Act. The Respondent failed to file an an-
swer.
On May 21, 2009, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
May 26, 2009, 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.
Ruling on Motion for Default Judgment1
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 complaint affirmatively stated
that an answer must be received on or before May 5,
2009. The complaint further stated that if no answer was
filed, the Board may find, pursuant to a motion for de-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated May 11, 2009, notified the Respondent that unless
an answer was received by May 18, 2009, 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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Missouri cor-
poration with a facility located in St. Charles, Missouri
(the Respondent’s facility), has been engaged in the con-
struction industry as a material hauler and paving con-
tractor. During the 12-month period ending March 31,
2009, the Respondent, in conducting its business opera-
tions described above, provided services valued in excess
of $50,000 to Dave Kolb Grading, Inc.
At all material times, Dave Kolb Grading, Inc., a Mis-
souri corporation with its headquarters located in St.
Charles, Missouri, has been engaged in the construction
industry as a contractor providing grading, paving, and
excavation services.
During the 12-month period ending March 31, 2009,
Dave Kolb Grading, Inc., in conducting its business op-
erations described above, performed services valued in
excess of $50,000 in states other than the State of Mis-
souri, and purchased and received at its headquarters and
jobsites located within the State of Missouri goods val-
ued in excess of $50,000 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 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, Michael G. Thoele has held the
position of the Respondent’s president and has been a
supervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and agent of the Respondent within
the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit),
constitute a unit appropriate for the purposes of collec-

2 In granting the General Counsel’s Motion for Default Judgment,
Member Schaumber notes that the issues which he addressed in his
dissent in Goer Mfg. Co., 341 NLRB 732, 734 (2004), are not present
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tive bargaining within the meaning of Section 9(b) of the
Act:
All regular full-time dump truck drivers in the Eastern
Missouri geographical jurisdiction of the Union,
EXCLUDING all office clerical and professional em-
ployees, guards, supervisors and all other employees.
Since about April 7, 2005, and at all material times, the
Union has been the designated collective-bargaining rep-
resentative of the unit and has been recognized as such
by the Respondent. This recognition has been embodied
in successive collective-bargaining agreements, the first
of which was executed on April 7, 2005, and was effec-
tive from April 1, 2005 through March 31, 2008. The
second collective-bargaining agreement was executed on
April 3, 2008, and is effective from April 1, 2008
through March 31, 2013.
At all times since April 7, 2005, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
Since about March 10, 2008, the Respondent has failed
to continue in effect all the terms and conditions of the
parties’ collective-bargaining agreements by failing to
provide unit employees with medical insurance as re-
quired by article X of the collective-bargaining agree-
ments.
The subject set forth above relates to wages, hours, and
other terms and conditions of employment of the unit and
is a mandatory subject for the purposes of collective bar-
gaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without the
Union’s consent.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the Union as the exclusive collective-
bargaining representative of the unit employees in viola-
tion of Section 8(a)(5) and (1) of the Act. The Respon-
dent’s 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 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 violated Section 8(a)(5)
and (1) by failing since about March 10, 2008 to con-
tinue in effect all the terms and conditions of its April 1,
2005–March 31, 2008 and April 1, 2008–March 31, 2013
collective-bargaining agreements by failing to provide
unit employees with medical insurance as required by
article X of the agreements, we shall order the Respon-
dent to restore the employees’ medical insurance benefits
and reimburse the employees for any loss of benefits or
expenses ensuing from the Respondent’s failure, since
about March 10, 2008, to provide medical insurance, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to 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).3
ORDER
The National Labor Relations Board orders that the
Respondent, Thoele Asphalt Paving, Inc., St. Charles,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Teamsters Local Union No. 682, affili-
ated with International Brotherhood of Teamsters, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit by failing to
continue in effect the terms and conditions of the April 1,
2005–March 31, 2008 and April 1, 2008–March 31, 2013
collective-bargaining agreements by failing to provide
the unit employees with medical insurance as required by
article X of the agreements. The unit is:
All regular full-time dump truck drivers in the Eastern
Missouri geographical jurisdiction of the Union,
EXCLUDING all office clerical and professional em-
ployees, guards, supervisors and all other employees.
(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) Restore the unit employees’ medical insurance
benefits and reimburse the employees for any loss of
benefits or expenses ensuing from the Respondent’s uni-
lateral failure to provide contractually-required medical
insurance since March 10, 2008, with interest, as set
forth in the remedy section of this decision.

3 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any monetary awards. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Glen Rock
Ham, 352 NLRB 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB 504
(2005)
THOELE ASPHALT PAVING 3
(b) Within 14 days after service by the Region, post at
its facility in St. Charles, Missouri, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 March 10, 2008.
(c) 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
comply.
Dated, Washington, D.C. August 27, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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 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.”
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 a 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 fail and refuse to bargain collectively and
in good faith with Teamsters Local Union No. 682, af-
filiated with International Brotherhood of Teamsters, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit by failing to
continue in effect the terms and conditions of the April 1,
2005–March 31, 2008 and April 1, 2008–March 31, 2013
collective-bargaining agreements by failing to provide
the unit employees with medical insurance as required by
article X of the agreements. The unit is:
All regular full-time dump truck drivers in the Eastern
Missouri geographical jurisdiction of the Union,
EXCLUDING all office clerical and professional em-
ployees, guards, supervisors and all other employees.
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 restore your medical insurance benefits and
reimburse you for any loss of benefits or expenses ensu-
ing from our unilateral failure to provide contractually-
required medical insurance since March 10, 2008, with
interest.
THOELE ASPHALT PAVING, INC.