WC Welding

National Labor Relations Board - Board Decisions

Aug 15, 2007

350 N.L.R.B. 69 (N.L.R.B. 2007)

350 NLRB No. 69
WC Welding and International Association of Bridge,
Structural, Ornamental & Reinforcing Iron
Workers, Local 7, AFL–CIO. Case 1–CA–43685
August 15, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
KIRSANOW 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 complaint. Upon a charge filed by the
Union, International Association of Bridge, Structural,
Ornamental & Reinforcing Iron Workers, Local 7, AFL–
CIO, the General Counsel issued the complaint and no-
tice of hearing on April 30, 2007, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
The Respondent failed to file an answer.
On June 22, 2007, the General Counsel filed a Motion
for Default Judgment with the Board. On June 27, 2007,
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 re-
sponse. The allegations in the motion are therefore un-
disputed.
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
of the service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that unless an answer was received by May 14, 2007, the
Board may find, pursuant to a Motion for Default Judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that the Region, by letter dated May 16,
2007, notified the Respondent that unless an answer was
received by the close of business on May 23, 2007, the
Board may find, pursuant to a Motion for Default Judg-
ment, that the allegations in the complaint are true.1

1 Copies of the complaint and the May 16, 2007 letter were served
on the Respondent by certified mail. The certified envelope containing
the complaint and notice of hearing was returned as “unclaimed” and
“unable to forward.” The certified envelope containing the copy of the
May 16, 2007 letter was also returned as “unclaimed.” On May 25,
2007, another copy of the complaint and notice of hearing was sent by
regular mail to the Respondent at its last known address. The docu-
ments sent by regular mail have not been returned. It is well estab-
lished that the failure or refusal to accept certified mail or to provide for
proper service cannot serve to defeat the purposes of the Act. See, e.g.,
I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited
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
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a sole proprie-
torship with an office and place of business in Athol,
Massachusetts, has been engaged in the construction in-
dustry as a welding contractor.
During the 12-month period ending March 1, 2007, a
representative period, the Respondent, in conducting its
business operations, provided services valued in excess
of $50,000 for enterprises within the Commonwealth of
Massachusetts which are directly engaged in interstate
commerce, including Hackensack Steel Corporation.
During the 12-month period ending March 1, 2007, the
Respondent, in conducting its business operations, pur-
chased and received goods and materials valued in ex-
cess of $50,000 directly from points located outside the
Commonwealth of Massachusetts.
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, William Cantrell has held the po-
sition of the Respondent’s owner and President, and has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respon-
dent within the meaning of Section 2(13) of the Act.
At all material times, Building Trades Employers’ As-
sociation of Boston and Eastern Massachusetts, Inc. and
Labor Relations Division of the Associated General Con-
tractors of Massachusetts, Inc. (the Associations) have
been organizations composed of various employers en-
gaged in the construction industry, one purpose of which
is to represent their employer-members in negotiating
and administering collective-bargaining agreements with
various labor organizations, including the Union.
The Associations granted recognition to the Union as
the exclusive collective-bargaining representative of all
employees who perform work under the craft jurisdiction
of the Union (the unit), who are employed by members
of the Associations and of other employers who have
authorized the Associations to bargain on their behalf
without regard to whether the majority status of the Un-

therein. In any event, the failure of the Postal Service to return docu-
ments sent by regular mail indicates actual receipt. Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ion has ever been established under the provisions of
Section 9(a) of the Act.
Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of which
is effective for the period from September 16, 2004 to
September 15, 2010 (the 2004 Association Agreement).
About July 26, 2000, the Respondent entered into an
Acceptance of Agreements and Declarations of Trusts
(the 2000 Acceptance), whereby it agreed to be bound by
all provisions of the collective-bargaining agreements
between the Associations and the Union in effect, and by
such future collective-bargaining agreements between the
Associations and the Union unless timely notice was
given.
The Respondent, an employer engaged in the building
and construction industry, by the 2000 Acceptance,
granted recognition to the Union as the exclusive collec-
tive-bargaining representative of its employees employed
within the unit without regard to whether the majority
status of the Union has ever been established under the
provisions of Section 9(a) of the Act.
At all times since July 26, 2000, based on Section 9(a)
of the Act, the Union has been, and is, the limited exclu-
sive collective-bargaining representative of the Unit.2
Since about October 2006, the Respondent has with-
drawn recognition from the Union as the limited exclu-
sive collective-bargaining representative of the unit and
has failed to apply the provisions of the 2004 Association
Agreement to the operations and unit employees of the
Respondent.
CONCLUSION OF LAW
By withdrawing recognition from the Union on or
about October 2006, and by failing to apply the provi-
sions of the 2004 Association Agreement to its opera-
tions and unit employees, the Respondent has failed and
refused to bargain collectively and in good faith with the
limited exclusive collective-bargaining representative of
its employees within the meaning of Section 8(d) of the
Act, and has thereby engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) of the Act. The Respondent’s unfair la-
bor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.

2 The complaint alleges that the Respondent is engaged in the con-
struction industry as a welding contractor and that it granted recogni-
tion to the Union without regard to whether the majority status of the
Union had been established. Accordingly, we find that the relationship
was entered into pursuant to Sec. 8(f) of the Act and that the Union is
therefore the limited 9(a) representative of the unit employees for the
period covered by the contract. See, e.g., A.S.B. Cloture, Ltd., 313
NLRB 1012 (1994).
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 violated Section 8(a)(5) and
(1) by failing, since about October 2006, to apply the
provisions of the 2004 Association Agreement to its op-
erations and unit employees, we shall order the Respon-
dent to apply to its operations and its unit employees all
the terms and conditions of the 2004 Association Agree-
ment. We shall also order the Respondent to make the
unit employees whole for any loss of earnings and other
benefits they may have suffered as a result of the Re-
spondent’s refusal to apply the terms and conditions of
the 2004 Association Agreement since about October
2006. Backpay 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 pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In addition, we shall order the Respondent to make all
contractually required contributions, if any, to fringe
benefit funds that it failed to make, including any addi-
tional amounts due the funds on behalf of the unit em-
ployees in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn.7 (1979). Further, the Re-
spondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make any required con-
tributions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in Ogle Protection Service, supra, with interest
as prescribed in New Horizons for the Retarded, supra.3
Furthermore, having found that the Respondent unlaw-
fully withdrew recognition from the Union on about Oc-
tober 2006, we shall order the Respondent to recognize
the Union as the limited exclusive collective-bargaining
representative of the unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, WC Welding, Athol, Massachusetts, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from International Asso-
ciation of Bridge, Structural, Ornamental & Reinforcing

3 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.
WC WELDING 3
Iron Workers, Local 7, AFL–CIO, as the limited exclu-
sive collective-bargaining representative of the unit em-
ployees. The unit consists of all employees who perform
work under the craft jurisdiction of the Union who are
employed by members of the Building Trades Employ-
ers’ Association of Boston and Eastern Massachusetts,
Inc. and Labor Relations Division of the Associated
General Contractors of Massachusetts, Inc. (the Associa-
tions) and of other employers who have authorized the
Associations to bargain on their behalf without regard to
whether the majority status of the Union has ever been
established under the provisions of Section 9(a) of the
Act.
(b) Failing to apply the provisions of the 2004 Asso-
ciation Agreement in effect from September 16, 2004 to
September 15, 2010, to its operations and its unit em-
ployees.
(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) Recognize the Union as the limited exclusive col-
lective-bargaining representative of its unit employees.
(b) Apply to its operations and its unit employees the
terms and conditions of the 2004 Association Agreement
and any automatic renewal or extension thereof.
(c) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s failure since about October
2006 to apply to its operations and its unit employees the
term and conditions of the 2004 Association Agreement,
and reimburse them for any expenses ensuing from its
failure to make contractually-required payments to fringe
benefit funds, if any, with interest, as set forth in the
remedy section of this decision.
(d) Make all contractually-required contributions to
fringe benefit funds that it has failed to make, since Oc-
tober 2006, as set forth in the remedy portion of this de-
cision.
(e) 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 records, timecards, personnel records and
reports, and all other records including an electronic copy
of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of
this Order.
(f) Within 14 days after service by the Region, post at
its facility in Athol, Massachusetts, copies of the attached
notice marked “Appendix”.4 Copies of the notice, on
forms provided by the Regional Director for Region 1,
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 October 2006.
(g) 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.
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 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 withdraw recognition from International
Association of Bridge, Structural, Ornamental & Rein-
forcing Iron Workers, Local 7, AFL–CIO, as the limited
exclusive collective-bargaining representative of the unit
employees. The unit consists of all employees who per-
form work under the craft jurisdiction of the Union who
are employed by members of the Building Trades Em-
ployers’ Association of Boston and Eastern Massachu-
setts, Inc. and Labor Relations Division of the Associated

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
General Contractors of Massachusetts, Inc. (the Associa-
tions) and of other employers who have authorized the
Associations to bargain on their behalf without regard to
whether the majority status of the Union has ever been
established under the provisions of Section 9(a) of the
Act.
WE WILL NOT fail to apply the provisions of the 2004
Association Agreement in effect from September 16,
2004 to September 15, 2010, to our operations and our
unit 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 recognize the Union as the limited exclusive
collective-bargaining representative of our unit employ-
ees.
WE WILL apply to our operations and our unit employ-
ees the terms and conditions of the 2004 Association
Agreement and any automatic renewal or extension
thereof.
WE WILL make whole our unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our failure since about October 2006 to apply
to our operations and our unit employees the terms and
conditions of the 2004 Association Agreement and reim-
burse them for any expenses ensuing from our failure to
make contractually-required payments to fringe benefit
funds, if any, with interest.
WE WILL make any contractually required contribu-
tions to fringe benefit funds that we failed to make since
about October 2006.
WC WELDING