A.R.C. Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1249 (N.L.R.B. 1980)

A.R.C. INDUSTRIES, INC. 1249
A.R.C. Industries, Inc. and Piledrivers, Bridge,
Dock Builders and Divers, Local Union No.
2520, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 19-CA-
11765
April 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on September 14, 1979, by
Piledrivers, Bridge, Dock Builders and Divers,
Local Union No. 2520, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
herein called the Union, and duly served on A.R.C.
Industries, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint and notice of hearing on Octo-
ber 31, 1979, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding. Respondent failed to file an answer to the
complaint.
On January 28, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based on Respondent's failure
to file an answer as required by Sections 102.20
and 102.21 of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended. Sub-
sequently, on February 5, 1980, the Board issued
an order transferring the proceeding to the Board
and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should
not be granted. Respondent did not file a response
to the Notice To Show Cause and, accordingly,
the allegations of the complaint stand uncontro-
verted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
248 NLRB No. 164
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent on October 31, 1979, specifically stated
that unless an answer to the complaint was filed
within 10 days from the service thereof "all of the
allegations in the Complaint shall be deemed to be
admitted true and may be so found by the Board."
Further, on November 26, 1979, a copy of the
charge and of the complaint and notice of hearing
were duly served on Respondent by an agent of
Region 19 by leaving said documents at the home
of Respondent's president. Finally, Respondent was
notified by letter dated December 4, 1979, that an
answer to the complaint had not been received,
and that summary judgment would be sought
unless an answer to the complaint was filed by De-
cember 14, 1979. As noted above, Respondent has
not filed an answer to the complaint, nor did it re-
spond to the Notice To Show Cause. No good
cause to the contrary having been shown, in accor-
dance with the rules set forth above, the allegations
of the complaint are deemed to be admitted and
are found to be true. Accordingly, we grant the
General Counsel's Motion for Summary Judg-
ment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, an
Alaskan corporation, with its principal office and
place of business in Anchorage, Alaska, has been
engaged in the business of marine construction.
During the past fiscal year, a representative period,
Respondent, in the course and conduct of its busi-
ness operations, sold and shipped goods or pro-
vided services from its facilities within the State of
Alaska to customers outside the said State, or sold
and shipped goods or provided services to custom-
ers within said State, which customers were them-
Eagle Truck and Trailer Rental Divilon of E T & T Leaving, Inc. 211
NL.RB 804 (1974)
ARC. INDUSTRIES INC
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves engaged in interstate commerce by other
than indirect means, of a total value in excess of
$50,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Piledrivers, Bridge, Dock Builders and Divers,
Local Union No. 2520, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The Unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All piledriver, bridge and dock construction
employees, and divers employed by the Re-
spondent in the State of Alaska, excluding
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act and all crane operators and other employ-
ees represented by the International Union of
Operating Engineers, Local 302, AFL-CIO.
At all times material herein, a majority of the
employees in the above-described unit have desig-
nated or selected the Union as their representative
for the purposes of collective bargaining with Re-
spondent.
B. The Request to Bargain and Respondents
Refusal
On or about May 17, 1979, Respondent signed a
prehire agreement, permissible under Section 8(f)
of the Act, whereby it agreed to be bound by the
terms of a collective-bargaining agreement (herein
called the AGC agreement) which has been, at all
times material herein, in effect between the Union
and the Association of General Contractors.
On or about May 17, 1979, and thereafter, Re-
spondent hired employees, a majority of whom
were members in good standing of the Union,
through hiring procedures set forth in the AGC
agreement and otherwise commenced application
of the terms of that agreement to its employees in
the above-described unit.
Since July 25, 1979, and continuing to date, Re-
spondent has unilaterally and without notice to or
discussion with the Union ceased to apply the
terms of the AGC agreement to its employees in
the above-described unit, failed or refused to make
trust contributions covering fringe benefits for said
employees for hours already worked thereunder,
and, otherwise, by its actions, repudiated the agree-
ment and its bargaining obligation to the Union
with respect to said employees.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has, since July 25, 1979,2 and at
all times thereafter, refused to bargain collectively
with the Union as the exclusive representative of
the employees in the appropriate unit, and that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
v. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We have found that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally, and with-
out notice to or discussion with the Union, ceasing
to apply the terms of the AGC agreement to its
employees in the above-described unit and by fail-
ing or refusing to make trust contributions cover-
ing fringe benefits for said employees for hours al-
ready worked. In order to dissipate the effect of
these unfair labor practices, we shall order Respon-
dent to make whole its employees by paying to the
aforementioned trust fund contributions which
should have been made pursuant to the terms of
their written agreement, retroactive to July 25,
1979.3
See Sec 1X(b) of the Act.
' Because of the provisions of employee benefit fund agreements are
variable anrd complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of nterest at a fixed rate on unlaw-
fully withheld fund payments. We leave to the compliance stage the
Continued
A.R.C. INDUSTRIES, INC. 1251
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. A.R.C. Industries, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Piledrivers, Bridge, Dock Builders and Divers
Local Union No. 2520, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All piledrives, bridge and dock construction
employees, and divers employed by the Respon-
dent in the State of Alaska, excluding office cleri-
cal employees, professional employees, guards and
supervisors as defined in the Act and all crane op-
erators and other employees represented by the In-
ternational Union of Operating Engineers, Local
302, AFL-CIO, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all employees
in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By unilaterally, and without notice to or dis-
cussion with the Union, ceasing to apply the terms
of the AGC agreement to its employees in the
above-described unit, failing or refusing to make
trust contributions covering fringe benefits for said
employees for hours already worked thereunder,
and, by its actions, repudiating the agreement and
its bargaining obligation to the Union with regard
to said employees, Respondent has refused to bar-
gain collectively with the above-named labor orga-
nization as the exclusive bargaining representative
of all the employees of Respondent in the appropri-
ate unit. Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
question whether Respondent AR.C. Industries, Inc., must pay any addi-
tional amounts into the benefit funds in order to satisfy our "make
whole" remedy These additional amounts may be determined, depending
on the circumstances of each case, by reference to provisions in the docu-
ments governing the funds at issue and, where there are no governing
provisions, to evidence of any loss directly attributable to the unlawful
withholding action, which might include the loss of return on investment
of the portion of funds withheld, additional administrative costs, etc, but
not collateral losses. Merryweather Optical Company, 240 NLRB No 169
(1979).
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
A.R.C. Industries, Inc., Anchorage, Alaska, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Pile-
drivers, Bridge, Dock Builders and Divers, Local
Union No. 2520, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, by unilaterally,
and without notice to or discussion with the afore-
said Union, ceasing to apply the terms of the AGC
agreement to its employees in the above-described
unit, by failing or refusing to make trust contribu-
tions covering fringe benefits for said employees
for hours already worked thereunder, and by its
actions, repudiating the agreement and its bargain-
ing obligation to the Union with respect to said
employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make whole its employees by making contri-
butions into the trust fund covering fringe benefits
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Anchorage, Alaska,
copies of the attached notice marked "Appendix."4
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Continued
The Board, upon the basis of the foregoing facts
ARC. INDUSTRES, NC.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 19,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Piledrivers, Bridge, Dock Builders and
Divers, Local Union No. 2520, United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, by unilaterally and without notice
to or discussion with that Union ceasing to
apply the terms of the AGC agreement to its
employees in the unit described below, by fail-
ing or refusing to make contributions covering
fringe benefits for said employees for hours al-
ready worked thereunder, and by repudiating
the agreement and our bargaining obligation to
the Union with respect to said employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All piledrivers, bridge and dock construc-
tion employees, and divers employed by the
Respondent in the State of Alaska, exclud-
ing office clerical employees, professional
employees, guards and supervisors as de-
fined in the Act and all crane operators and
other employees represented by the Interna-
tional Union of Operating Engineers, Local
302, AFL-CIO.
WE WILL make our employees whole by
paying to the trust fund for fringe benefits the
contributions which should have been made
pursuant to the terms of our written agreement
with the above-named Union.
A.R.C. INDUSTRIES, INC.