DEM/EX GROUP, INC. a/k/a DEMEX GROUP, INC. and its alter ego DEMOLITION EXCAVATING GROUP, INC. d/b/a

National Labor Relations Board - Board Decisions

Dec 19, 2011

357 NLRB No. 141 (N.L.R.B. 2011)

357 NLRB No. 141
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.
Demex Group, Inc. and Laborers’ Local Union 393.
Case 33–CA–15956
December 19, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that Demex Group, Inc. (the
Respondent) has withdrawn its answer to the complaint.
Upon a charge filed by Laborers’ Local Union 393 (the
Union) on December 9, 2009, the General Counsel is-
sued the complaint on January 29, 2010, against the Re-
spondent, alleging that it has violated Section 8(a)(5) and
(1) of the Act. The Respondent filed an answer to the
complaint. However, by letter dated September 16,
2011, the Respondent withdrew its answer.1
On September 22, 2011, the Acting General Counsel
filed a Motion for Default Judgment with the Board.
Thereafter, on September 23, 2011, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 unless an answer was received by February 12,
2010, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Although the Respondent filed an answer to the
complaint on February 12, 2010, it subsequently with-
drew its answer. The withdrawal of an answer has the
same effect as a failure to file an answer, i.e., the allega-

1 On April 26, 2010, the parties entered into a non-Board settlement
agreement and the administrative law judge dismissed the complaint,
subject to the Respondent’s compliance with the terms of the settlement
agreement. On June 8, 2011, the Acting General Counsel filed a mo-
tion dated April 20, 2011, requesting that the administrative law judge
revoke approval of the settlement agreement and reinstate the charge
and complaint because the Respondent failed to comply with the terms
of the agreement. The judge granted this motion by order dated June
30, 2011. On September 15, 2011, the Respondent filed a motion to
withdraw answer, stating that it “does not intend to mount a defense
and therefore wishes to withdraw its Answer.”
tions in the complaint must be considered to be admitted
as true.2 Accordingly, based on the withdrawal of the
Respondent’s answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Acting
General Counsel’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 corporation,
with an office and place of business in Manito, Illinois
(the Respondent’s facility), has been engaged in the
business of demolition construction.
During the calendar year preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, received revenues for per-
formance of services valued in excess of $50,000 from
enterprises located in the State of Illinois which, them-
selves, are directly engaged in interstate commerce and
meet the Board’s direct inflow and/or outflow standards
for exercising jurisdiction.
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, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Ed Fisher President/Owner
Mark Hoover Superintendent
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:3
All laborers employed in the geographical areas en-
compassed by Local Union No. 393, together with any
other locals which may come within the Jurisdiction of
the Great Plains Laborers’ District Council Affiliated
with Laborers’ International Union of North America
AFL–CIO; but excluding all guards, professional em-

2 See Maislin Transport, 274 NLRB 529 (1985).
3 At the hearing, the Acting General Counsel amended complaint
par. 5(a) by striking all local numbers except 393. The Respondent did
not object to this amendment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ployees, and supervisors within the meaning of the Act,
and all other employees.
On about August 8, 2007, the Respondent signed a
memorandum of agreement to be bound by the collec-
tive-bargaining agreement between the Union and the
Illinois Valley Contractors Association effective May 1,
2006, through April 30, 2011 (the 2006–2011 collective-
bargaining agreement).
The Respondent, an employer engaged in the building
and construction industry, as described above, granted
recognition to the Union as the exclusive collective-
bargaining representative of the unit without regard to
whether the majority status of the Union had ever been
established under the provisions of Section 9(a) of the
Act. This recognition was embodied in the Memoran-
dum of Agreement described above.
For the period from August 8, 2007, to April 30, 2011,
based on Section 9(a) of the Act, the Union has been the
limited exclusive collective-bargaining representative of
the unit.
Since about August 4, 2009, the Respondent has de-
nied it entered into a collective-bargaining agreement
with the Union and has failed and refused to adhere to
the terms of the 2006–2011 collective-bargaining agree-
ment.
The Respondent engaged in the conduct described
above without the Union’s consent.
The terms and conditions of employment described
above are mandatory subjects for the purpose of collec-
tive bargaining.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its unit employees in viola-
tion of Section 8(a)(5) and (1) of the Act and has thereby
engaged in unfair labor practices affecting 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) of the Act by failing and refusing, since about
August 4, 2009, to adhere to the terms of the 2006–2011
collective-bargaining agreement, we shall order the Re-
spondent to honor the terms of that agreement.4 We shall

4 Member Hayes would not extend the Respondent’s remedial obli-
gation beyond the April 30, 2011 expiration of the parties’ contract,
also order the Respondent to make its unit employees
whole for any loss of earnings and other benefits they
may have suffered as a result of the Respondent’s unlaw-
ful conduct. 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
at the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8
(2010), enf. denied on other grounds sub nom. Jackson
Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
In addition, we shall order the Respondent to make all
contractually-required fringe benefit fund contributions,
if any, that have not been made since August 4, 2009,
including any additional amounts applicable to such de-
linquent payments in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).5 Fur-
ther, the Respondent shall reimburse the unit employees
for any expenses ensuing from its failure to make any
contractually-required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). All payments
to the unit employees shall be computed in the manner
set forth in Ogle Protection Service, supra, with interest
at the rate prescribed in New Horizons for the Retarded,
supra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Demex Group, Inc., Manito, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Laborers’ Local Union 393 (the Union),
as the limited exclusive collective-bargaining representa-
tive of the unit employees, by denying that it entered into
a collective-bargaining agreement with the Union cover-
ing employees in the following unit:
All laborers employed in the geographical areas en-
compassed by Local Union No. 393, together with any
other locals which may come within the Jurisdiction of

absent either a claim in the complaint that the contract included an
automatic renewal clause or a specific request in the complaint for such
a remedial provision. He notes that the hearing transcript attached to
the motion for default judgment indicates that the settlement agreement
was limited to this contract term.
5 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
DEMEX GROUP, INC. 3
the Great Plains Laborers’ District Council Affiliated
with Laborers’ International Union of North America
AFL–CIO; but excluding all guards, professional em-
ployees, and supervisors within the meaning of the Act,
and all other employees.
(b) Failing and refusing since August 4, 2009, to ad-
here to the terms of its 2006–2011 collective-bargaining
agreement with the Union.
(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) Comply with the terms of its 2006–2011 collective-
bargaining agreement with the Union, including any
automatic renewal or extension provisions contained
therein.
(b) Make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of its unlawful conduct, with interest, as set forth
in the remedy section of this decision.
(c) Make all contractually-required benefit fund con-
tributions, if any, that have not been made to the fringe
benefit funds on behalf of employees in the unit since
August 4, 2009, and reimburse unit employees for any
expenses ensuing from its failure to make any contractu-
ally-required payments, with interest, as set forth in the
remedy section of this decision.
(d) 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 payment records, timecards, personnel re-
cords 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.
(e) Within 14 days after service by the Region, post at
its facility in Manito, Illinois, copies of the attached no-
tice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by

6 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.”
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means.7 Rea-
sonable 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 pend-
ency 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 employ-
ees and former employees employed by the Respondent
at any time since August 4, 2009.
(f) 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. December 19, 2011
Mark Gaston Pearce, Chairman
Craig Becker, Member
Brian E. Hayes, 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 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

7 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Laborers’ Local Union 393 (the
Union), as the limited exclusive collective-bargaining
representative of the unit employees, by denying that we
entered into a collective-bargaining agreement with the
Union covering employees in the following unit:
All laborers employed in the geographical areas en-
compassed by Local Union No. 393, together with any
other locals which may come within the Jurisdiction of
the Great Plains Laborers’ District Council Affiliated
with Laborers’ International Union of North America
AFL–CIO; but excluding all guards, professional em-
ployees, and supervisors within the meaning of the Act,
and all other employees.
WE WILL NOT fail and refuse to adhere to the terms of
our 2006–2011 collective-bargaining agreement with the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL comply with the terms of our 2006–2011 col-
lective-bargaining agreement with the Union, including
any automatic renewal or extension provisions contained
therein.
WE WILL make our unit employees whole for any loss
of earnings and other benefits they may have suffered as
a result of our unlawful conduct, with interest.
WE WILL make all contractually-required benefit fund
contributions, if any, that have not been made on behalf
of employees in the unit since August 4, 2009, and WE
WILL reimburse unit employees for any expenses ensuing
from our failure to make any required payments, with
interest.
DEMEX GROUP, INC.