Blake & Sons GlassDownload PDFNational Labor Relations Board - Board DecisionsSep 12, 1991304 N.L.R.B. 992 (N.L.R.B. 1991) Copy Citation 992 304 NLRB No. 125 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Blake & Sons Glass, Inc. and Glaziers, Architec- tural Metal and Glassworkers Local Union No. 357, Brotherhood of Painters and Allied Trades, AFL–CIO. Case 7–CA–31680 September 12, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT Upon a charge filed by the Union March 21, 1991, the General Counsel of the National Labor Relations Board issued a complaint April 29, 1991, against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) and Section 8(d) of the Na- tional Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. On June 25, 1991, the General Counsel filed a Mo- tion for Default Judgment. On June 28, 1991, 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 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 of the allega- tions in the Complaint shall be deemed to be admitted true and may be so found by the Board.’’ Further, the undisputed allegations in the Motion for Default Judg- ment disclose that the Acting Regional attorney, by let- ter dated May 22, 1991, and the Regional attorney, by letter dated June 10, 1991, notified the Respondent that unless an answer was received by specified dates, a Motion for Default 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 Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Company, a Michigan corporation, with its principal office and place of business in Port Huron, Michigan, is engaged in the building and construction industry as a fabricator and installer of glass, plastic, and architectural metal and materials, and related prod- ucts. During the fiscal year ending September 30, 1990, a representative period, the Respondent in the course and conduct of its business operations pur- chased and caused to be transported and delivered at its Port Huron location and jobsites in Michigan goods and materials valued in excess of $50,000 which goods and materials were transported and delivered to the Re- spondent’s place of business and jobsites in Michigan from other enterprises located in the State of Michigan, each of which other enterprises had received the goods and materials delivered to the locations directly from points located outside of the State of Michigan. We find that the Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of 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 units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Unit A All glaziers, glass (except auto glass), plastic and architectural metal/material installers, including residential workers; but excluding office clerical employees, guards and supervisors as defined in the Act. Unit B Inside employees including all warehousemen, paint handlers, belt machine operators, No. 1 cut- ters, auto glass installers, bevelers, silverers, scratch polishers, blockers, glass designers, art glass and lead glaziers, webber machine operators, metal fabricators and assemblers, head packers, porters, and insulated glass fabricators (washer and sealer); but excluding office clerical employ- ees, guards and supervisors as defined in the Act. Since approximately 1966, and continuing to date, by virtue of successive collective-bargaining agree- ments between the Respondent and the Union (the most recent of which being by its terms effective from June 11, 1988, to and including May 31, 1993), the Union has been the exclusive representative for the purposes of collective bargaining of the employees in the units and, by virtue of Section 9(a) of the Act, has been the exclusive representative of all employees in the units for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. About January 18, 1991, the Respondent laid off all of its employees employed in the units. About January 19, 1991, and continuing to date, the Respondent has failed and refused to make appropriate fringe benefit 993BLAKE & SONS GLASS 1 Any additional amounts due on trust fund payments shall be computed in the manner prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979). payments as required by the collective-bargaining agreements with respect to employees that the Re- spondent has employed since January 19, 1991, in the units referred to above. By this failure and refusal to make appropriate fringe benefit payments, the Re- spondent unilaterally modified the current collective- bargaining agreement without complying with Section 8(d) of the Act. The Respondent took these actions without prior notice to the Union or without the Union being given meaningful opportunity to bargain con- cerning such matters. About March 15, 1991, and continuing to date, the Respondent repudiated the collective-bargaining agree- ments and withdrew recognition of the Union as the exclusive collective-bargaining representative of the employees employed within the units. We find that by these actions the Respondent has failed and refused to bargain collectively and in good faith with the Union as the exclusive representative of the employees in the units in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act. CONCLUSION OF LAW By laying off all of its employees employed in the units without prior notice to the Union or without the Union being given the meaningful opportunity to bar- gain; by failing and refusing to make appropriate fringe benefit payments as required by the collective- bargaining agreements without complying with the provisions of Section 8(d) of the Act; and by repudiat- ing the collective-bargaining agreement and withdraw- ing recognition of the Union as the exclusive collec- tive-bargaining representative of the employees em- ployed within the units, the Respondent engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 8(d) 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. We shall order the Respondent to bargain with the Union concerning the layoff of its employees, and to reinstate the laid-off employees with backpay in ac- cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall further order the Respondent to make the employees whole by making the contractually required fringe benefit payments1 which have not been paid and that would have been paid absent the Respondent’s unilateral discontinuance of the payments. We shall also order the Respondent to reimburse its employees for any expenses they incurred because of its unlawful failure to make the required payments, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). All payments to employees shall be made with interest as prescribed in New Horizons for the Retarded, supra. Lastly, we shall order the Respondent to recognize the Union as the exclusive collective-bargaining rep- resentative of the employees in the units as required in the collective-bargaining agreements. ORDER The National Labor Relations Board orders that the Respondent, Blake & Sons Glass, Inc., Port Huron, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally laying off employees without pro- viding the Union with notice and the meaningful op- portunity to bargain about the layoff of employees. (b) Refusing to bargain collectively with Glaziers, Architectural Metal and Glassworkers Local Union No. 357, Brotherhood of Painters and Allied Trades, AFL– CIO by failing and refusing to make appropriate fringe benefit payments as required by its collective-bargain- ing agreements with the Union. The units are: Unit A All glaziers, glass (except auto glass), plastic and architectural metal/material installers including residential workers; but excluding office clerical employees, guards and supervisors as defined in the Act. Unit B Inside employees including all warehousemen, paint handlers, belt machine operators, No. 1 cut- ters, auto glass installers, bevelers, silverers, scratch polishers, blockers, glass designers, art glass and lead glaziers, webber machine operators, metal fabricators and assemblers, head packers, porters, and insulated glass fabricators (washer and sealer); but excluding office clerical employ- ees, guards and supervisors as defined in the Act. (c) Repudiating the collective-bargaining agreements with the Union and withdrawing recognition of the Union as the exclusive collective-bargaining represent- ative of the employees employed within the units. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Immediately recognize and, on request, bargain collectively and in good faith with Glaziers, Architec- tural Metal and Glassworkers Local Union No. 357, 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ Brotherhood of Painters and Allied Trades, AFL–CIO as the exclusive representative of the units with respect to wages, hours, and other terms and conditions of em- ployment. (b) Reinstate the employees laid off January 18, 1991. (c) Make the employees in the units whole by pay- ing in the manner set forth in the remedy section of the decision all the contractually required fringe bene- fit funds as provided in the collective-bargaining agree- ments which have not been paid and that would have been paid absent the Respondent’s unilateral dis- continuance of the payments. (d) Make all employees whole for any losses of pay and benefits they may have suffered. (e) Post at its facility in Port Huron, Michigan, cop- ies of the attached notice marked ‘‘Appendix’’2 Copies of the notice, on forms provided by the Regional Di- rector for Region 7, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing with 20 days from the date of this Order what steps the Re- spondent 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT lay off employees in the units de- scribed below without prior notice to the Union or without the Union being given a meaningful oppor- tunity to bargain. The units are: Unit A All glaziers, glass (except auto glass), plastic and architectural metal/material installers including residential workers; but excluding office clerical employees, guards and supervisors as defined in the Act. Unit B Inside employees including all warehousemen, paint handlers, belt machine operators, No. 1 cut- ters, auto glass installers, bevelers, silverers, scratch polishers, blockers, glass designers, art glass and lead glaziers, webber machine operators, metal fabricators and assemblers, head packers, porters, and insulated glass fabricators (washer and sealer); but excluding office clerical employ- ees, guards and supervisors as defined in the Act. WE WILL NOT refuse to abide by and adhere to our collective-bargaining agreement by failing to pay the required fringe benefit payments for the employees employed in the units described above. WE WILL NOT repudiate the collective-bargaining agreements with Glaziers, Architectural Metal and Glassworkers Local Union No. 357, Brotherhood of Painters and Allied Trades, AFL–CIO and WE WILL NOT withdraw recognition of the Union as the exclu- sive collective-bargaining representative of the employ- ees employed in the units. WE WILL make whole the above unit employees, with interest for losses sustained by our failure to maintain fringe benefits. WE WILL reinstate the employees laid off January 18, 1991. WE WILL make all employees whole, with interest, for any losses of pay and benefits they may have suf- fered. WE WILL recognize that the Union is the exclusive collective-bargaining representive of the employees in the units. BLAKE & SONS GLASS, INC. Copy with citationCopy as parenthetical citation