Infinity Scaffold, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 2010

355 NLRB No. 182 (N.L.R.B. 2010)

355 NLRB No. 182
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.
Infinity Scaffold, Inc. and Pacific Northwest Regional
Council of Carpenters. Case 19–CA–32239
September 20, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
The Acting 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 on December 2, 2009, the General Counsel
issued the complaint on May 25, 2010 against Infinity
Scaffold, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On July 21, 2010, the Acting General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on July 27, 2010, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion 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 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. In addition, the complaint affirmatively stated
that the answer must be received by the Regional Office
on or before June 8, 2010. Further, the undisputed alle-
gations in the Acting General Counsel’s motion disclose
that the Region, by letters dated June 14 and 17, 2010,
notified the Respondent that it was extending the dead-
line for filing an answer in view of the nondelivery of the
original complaint, and that unless an answer was re-
ceived by June 30, 2010, a motion for default judgment
would be filed.1

1 The Acting General Counsel’s Motion for Default Judgment and
attached exhibits indicate that the complaint was served on the Respon-
dent by certified and first-class mail, addressed to 277 Ferndale Ave.,
S.E., Renton, WA, 98056, on May 25, 2010. By letter dated June 14,
2010, sent by first-class mail to the same address, with a copy sent to
7910 Occidental Ave. S, Seattle, WA, 98108, the Region provided the
Respondent with additional time to file an answer to the complaint.
Thereafter, the documents that had been sent by certified mail were
returned the Regional Office, marked as “unclaimed.” On June 17,
2010, the Region sent another letter to the address at 277 Ferndale
In the absence of good cause being shown for the fail-
ure to file an answer, we grant the Acting General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Washington State corporation with
an office and place of business in Seattle, Washington, is
engaged in the business of erecting and dismantling scaf-
folding in the building and construction industry. The
Respondent, during the 12-month period preceding the
issuance of the complaint, a representative period, in
conducting its business operations described above, de-
rived gross revenues in excess of $500,000, and per-
formed services valued in excess of $50,000 for various
enterprises located in states other than the State of Wash-
ington. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that Pacific Northwest Re-
gional Council of Carpenters, the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act (the
unit):
All employees of Respondent who perform handling,
building, erecting, modifying and dismantling of scaf-
folding and shoring, including shrink wrapping, ex-
cluding yard workers, all other employees, supervisors
and guards as defined in the Act.
On about May 15, 2009, the Respondent, an employer
engaged in the building and construction industry, en-
tered into a collective-bargaining agreement effective
from June 1, 2008 through May 31, 2011 (the 2008–2011
agreement) whereby it recognized the Union as the ex-
clusive collective-bargaining representative of the unit.
Since about May 15, 2009, pursuant to the agreement
described above, the Union has been recognized as the

Ave., S.E., Renton, WA, 98056, noting the return of the original docu-
ments, enclosing additional copies of those documents, and again ex-
tending the deadline for filing an answer. No answer was received.
There is no indication that the documents sent by regular first-class
mail were returned. It is well settled that a respondent’s failure or
refusal to accept certified mail or to provide for appropriate service
cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Elec-
tric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein. Further,
the failure of the Postal Service to return documents served by regular
mail indicates actual receipt of those documents by the Respondent.
Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987), enfd. 843 F.2d 1392
(6th Cir. 1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
exclusive collective-bargaining representative of the unit
by the Respondent without regard to whether the major-
ity status of the Union had ever been established under
the provisions of Section 9(a) of the Act.
For the period from May 15, 2009, to May 31, 2011,
based on Section 9(a) of the Act, the Union has been, and
is, the limited exclusive collective-bargaining representa-
tive of the unit.2
Since about November 6, 2009, the Union, by email,
has requested that the Respondent furnish the Union with
the following information:
(i) Names, home addresses, telephone numbers
and current job sites of all employees in the unit;
(ii) Date of hire and date of dispatch from the
Union hiring hall; and
(iii) Names, home address, current job site for all
foremen and the names of workers under that par-
ticular foreman.
The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the limited exclusive collective-
bargaining representative of the unit.
Since about November 6, 2009, the Respondent has
failed and refused to furnish the Union with the informa-
tion requested by it.
On about September 2, 2009, the Respondent at-
tempted to withdraw from and abrogated the collective-
bargaining agreement.
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 employees, and has
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
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 attempting to withdraw from and abrogating
its 2008–2011 collective-bargaining agreement with the

2 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. 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).
Union, we shall order the Respondent to honor the terms
and conditions of its collective-bargaining agreement
with the Union. We shall also order the Respondent to
make whole its unit employees for any loss of earnings
and other benefits they may have suffered as a result of
the Respondent’s abrogation, on September 2, 2010, of
the 2008–2011 collective-bargaining agreement. In addi-
tion, we shall order the Respondent to make all contrac-
tually-required fringe benefit fund contributions, if any,
that have not been made since September 2, 2010, in-
cluding any additional amounts applicable to such delin-
quent payments in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 (1979).3 Further, the
Respondent shall reimburse the unit employees for any
expenses ensuing from its failure to make the required
contributions since that date, as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981). All payments to unit em-
ployees 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 prescribed
in New Horizons for the Retarded, 283 NLRB 1171
(1987).
Finally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to furnish the Union
with information relevant and necessary to its role as the
limited exclusive collective-bargaining representative of
the unit employees, we shall order the Respondent to
furnish the Union with the information it requested on
November 6, 2009.
ORDER
The National Labor Relations Board orders that the
Respondent, Infinity Scaffold, Inc., Seattle, Washington,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Pacific Northwest Regional Council of Carpenters as the
limited exclusive collective-bargaining representative of
the employees in the following unit by attempting to
withdraw from and abrogating its 2008–2011 collective-
bargaining agreement with the Union. The unit is:
All employees of Respondent who perform handling,
building, erecting, modifying and dismantling of scaf-
folding and shoring, including shrink wrapping, ex-

3 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 delin-
quency, the respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that the re-
spondent otherwise owes the fund.
INFINITY SCAFFOLD, INC. 3
cluding yard workers, all other employees, supervisors
and guards as defined in the Act.
(b) Failing to furnish the Union with information that
is necessary and relevant to its role as the limited exclu-
sive collective-bargaining representative of the 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) Continue in force and effect the terms and condi-
tions of its 2008–2011 collective-bargaining agreement
with the Union as the limited collective-bargaining rep-
resentative of the unit employees.
(b) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its failure to comply with the collective-
bargaining agreement since September 2, 2009, with
interest, in the manner 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 since September 2, 2009, and reimburse
unit employees for any expenses ensuing from its failure
to make the required payments, with interest, in the man-
ner set forth in the remedy section of this decision.
(d) Furnish the Union with the information requested
on November 6, 2009.
(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 payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic 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 Seattle, Washington, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 19,
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

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.”
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 September 2, 2009.
(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.
Dated, Washington, D.C. September 20, 2010
______________________________________
Craig Becker, Member
______________________________________
Mark Gaston Pearce, 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 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
with Pacific Northwest Regional Council of Carpenters
as the limited exclusive collective-bargaining representa-
tive of the employees in the following unit by attempting
to withdraw from and abrogating our collective-
bargaining agreement with the Union, which is effective
from June 1, 2008, through May 31, 2011. The unit is:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
All employees of Infinity Scaffold, Inc. Respondent
who perform handling, building, erecting, modifying
and dismantling of scaffolding and shoring, including
shrink wrapping, excluding yard workers, all other em-
ployees, supervisors and guards as defined in the Act.
WE WILL NOT fail to furnish the Union with informa-
tion that is necessary and relevant to its role as the lim-
ited exclusive collective-bargaining representative of the
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 continue in force and effect the terms and
conditions of employment of our 2008–2011 collective-
bargaining agreement with the Union.
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 to comply with the collective-
bargaining agreement since September 2, 2009, 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 September 2, 2009, and
reimburse unit employees for any expenses ensuing from
our failure to make the required payments, with interest.
WE WILL furnish the Union with the information it re-
quested on November 6, 2009.
INFINITY SCAFFOLD, INC.