T3 Construction LLC

National Labor Relations Board - Board Decisions

Jul 6, 2020

369 N.L.R.B. 115 (N.L.R.B. 2020)

369 NLRB No. 115
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.
T-3 Construction LLC and Southwest Laborers Dis-
trict Council and Laborers Local 154. Case 16–
CA–247162
July 6, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that T-3 Construction LLC, (the Re-
spondent) has failed to file an answer to the complaint.
Upon a charge filed by Southwest Laborers District Coun-
cil and Laborers Local 154 (the Union) on August 23,
2019, the General Counsel issued a complaint and notice
of hearing on March 2, 2020, against the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of the
Act.1 The Respondent failed to file an answer.
On May 15, 2020, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on May 20, 2020, 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 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 March 16, 2020, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the un-
disputed allegations in the General Counsel’s motion dis-
close that the Region, by letter dated March 18, 2020, ad-
vised the Respondent that unless an answer was received
by March 25, 2020, a motion for default judgment would
be filed. Nevertheless, the Respondent failed to file an
answer.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
1 By letter dated December 3, 2019, the Region deferred the charge
to the grievance/ arbitration procedures of the parties’ collective-bargain-
ing agreement. However, the Respondent failed to respond to the Un-
ion’s grievance and request for arbitration. As a result, it was advised by
email dated February 3, and letter dated February 11, 2020, that failure
to respond would result in the issuance of a complaint and the
to be admitted as true, and we grant the 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 has been a limited
liability corporation with an office in Omaha, Nebraska,
and place of business in Collinsville, Texas (the Respond-
ent’s facility), and has been engaged in the business of
commercial construction.
During the past calendar year, the Respondent provided
services in excess of $50,000 in states other than the State
of Nebraska.
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, Timothy Pulice has been the
owner of the Respondent and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an 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 collective
bargaining within the meaning of Section 9(b) of the Act:
All laborers, skilled laborers, specialist laborers, indus-
trial laborers, laborer foremen, and general foremen per-
forming work covered by the Southwest Laborers’ Dis-
trict Council Tri-State Agreement.
Since about March 30, 2019, the Respondent, an em-
ployer engaged in the building and construction industry,
entered into a collective-bargaining agreement effective
from March 1, 2019, through April 30, 2020 (the Agree-
ment), whereby it recognized the Union as the exclusive
collective-bargaining representative of the unit without re-
gard to whether the Union’s majority status had ever been
established under Section 9(a) of the Act and agreed to
continue the agreement in effect annually unless timely
notice was given in accordance with the terms of Article
25 of the collective-bargaining agreement.
From March 1, 2019, to April 30, 2020, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive col-
lective-bargaining representative of the unit.2
abandonment of deferral as a defense. The Respondent did not respond
to the Region’s correspondence or respond to the Union. The Region
consequently issued the complaint.
2 The complaint alleges that the Respondent is a construction industry
employer and that it granted recognition to the Union without regard to
whether the Union had established majority status. Accordingly, we find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Since about March 1, 2019, the Respondent failed to
make required payments to the Union’s benefit funds as
set forth in the Agreement.
Since about April 9, 2019, the Respondent failed to pay
unit employees the appropriate wages set forth in the
Agreement.
Since about April 9, 2019, the Respondent failed to pay
certain employees who performed work for the Respond-
ent.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective bar-
gaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the Re-
spondent with respect to this conduct.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices described above 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) of the Act by failing to make contractually-required
payments to the Union’s pension funds, we shall order the
Respondent to make whole its unit employees by making
all required payments that have not been made since
March 1, 2019, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). The Respondent shall also
reimburse unit employees for any expenses ensuing from
its failure to make the contractually-required pension fund
payments 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, 183 NLRB 682 (1970),
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 em-
ployees for the period covered by the contract. See, e.g., A.S.B. Cloture,
Ltd., 313 NLRB 1012, 1012 fn. 2 (1994) (citing Electri-Tech, Inc., 306
NLRB 707, 707 fn. 2 (1992)); John Deklewa & Sons, 282 NLRB 1375
(1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988).
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), and
Kentucky River Medical Center, 356 NLRB 6 (2010).3
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to pay unit employees
contractually-required wages and failing to pay certain
employees who performed work for the Respondent, we
shall order it to pay employees the unpaid contractually-
required wages, to pay employees it failed to pay for their
work, and to make the affected employees whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful conduct. All amounts due em-
ployees shall be computed in accordance with Ogle Pro-
tection Service, supra, with interest as prescribed by New
Horizons, supra, and Kentucky River Medical Center, su-
pra.
Further, we shall order the Respondent to compensate
the employees for any adverse tax consequences of receiv-
ing a lump-sum backpay award, and to file with the Re-
gional Director for Region 16, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the
appropriate calendar years for each employee. AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, T-3 Construction, Collinsville, Texas, its offic-
ers, agents, successors, and assigns shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-bar-
gaining representative of the employees in the following
appropriate unit by failing to pay unit employees contrac-
tually-required wages in accordance with the March 1,
2019–April 30, 2020 Agreement. The bargaining unit is:
All laborers, skilled laborers, specialist laborers, indus-
trial laborers, laborer foremen, and general foremen per-
forming work covered by the Southwest Laborers’ Dis-
trict Council Tri-State Agreement.
(b) Failing and refusing to pay certain employees who
performed work for the Respondent.
(c) Failing and refusing to make all contractually-re-
quired pension fund payments on behalf of unit employees
3 To the extent that an employee has made personal contributions to
the pension fund that were accepted by the fund in lieu of the Respond-
ents’ delinquent contributions during the period of delinquency, the Re-
spondents will reimburse the employees, but the amount of such reim-
bursement will constitute a setoff to the amount the Respondents other-
wise owe the fund.
T-3 CONSTRUCTION LLC 3
in accordance with the March 1, 2019–April 30, 2020
Agreement.
(d) 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) Pay unit employees all contractually-required wages
in accordance with the March 1, 2019–April 30, 2020
Agreement, in the manner set forth in the remedy section
of this decision.
(b) Compensate certain employees who performed
work for the Respondent and were not paid, in the manner
set forth in the remedy section of this decision.
(c) Make the affected employees whole for any loss of
earning and other benefits suffered as a result of the Re-
spondent’s unlawful conduct, with interest, in the manner
set forth in the remedy section of this decision.
(d) Compensate employees for the adverse conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 16, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay ward to the appropriate calendar year(s).
(e) Make all contractually-required payments to the
Union’s benefit funds that have not been made on the em-
ployees’ behalf since March 1, 2019, in the manner set
forth in the remedy section of this decision.
(f) Make unit employees whole for any expenses ensu-
ing from the failure to make payments to the pension funds
since March 1, 2019, in the manner set forth in the remedy
section of this decision.
(g) Post at its facility in Collinsville, Texas, copies of
the attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by 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. Rea-
sonable steps shall be taken by the Respondent to ensure
4 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facilities involved in
these proceedings are closed due to the Coronavirus pandemic, the no-
tices must be posted within 14 days after the facilities reopen and a sub-
stantial complement of employees have returned to work, and the notices
may not be posted until a substantial complement of employees have re-
turned to work. Any delay in the physical posting of the paper notices
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
March 1, 2019.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 16 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 6, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
_____William J. Emanuel 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 vi-
olated 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
also applies to the electronic distribution of the notice if the Respondent
customarily communicates with its employees by electronic means. 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
Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Rela-
tions Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with Southwest Laborers District Council
and Laborers Local 154 (the Union) as the exclusive col-
lective-bargaining representative of employees in the fol-
lowing unit by failing and refusing to pay you contractu-
ally-required wages in accordance with the March 1,
2019–April 30, 2020 collective-bargaining agreement (the
Agreement). The unit is:
All laborers, skilled laborers, specialist laborers, indus-
trial laborers, laborer foremen, and general foremen per-
forming work covered by the Southwest Laborers’ Dis-
trict Council Tri-State Agreement.
WE WILL NOT fail and refuse to pay employees who per-
form work for the company.
WE WILL NOT fail and refuse to make contractually re-
quired pension fund payments on your behalf in accord-
ance with the March 1, 2019–April 30, 2020 Agreement.
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 pay you the contractually-required wages in
accordance with the March 1, 2019–April 30, 2020 Agree-
ment.
WE WILL pay certain employees who performed work
for the company but were not paid.
WE WILL make all contractually required pension fund
payments on your behalf in accordance with the March 1,
2019–April 30, 2020 Agreement.
T-3 CONSTRUCTION LLC
The Board’s decision can be found at
www.nlrb.gov/case/16-CA-247162 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.