Di Ponio, Gerry, & Sons, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1450 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerry Di Ponio & Sons, Inc. and International
Union of Operating Engineers, Local No. 324,
324-A, 324-B and 324-C, AFL-CIO. Case 7-
CA- 19445
March 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
Upon a charge filed on June 17, 1981, by Inter-
national Union of Operating Engineers, Local No.
324, 324-A, 324-B and 324-C, AFL-CIO, and
duly served on Respondent Gerry Di Ponio &
Sons, Inc., the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 7, issued a complaint on August 31,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1), Section 8(d), and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges that Respondent has violated and
is violating Section 8(a)(5) and (]) of the Act by
failing and refusing, since March 1, 1981, to make
payments to reduce its indebtedness to the Operat-
ing Engineers Fringe Benefit Funds in accordance
with an agreement executed on January 30, 1981;
by failing and refusing, since January 1981, to
submit fringe benefit reports to the trustees of the
Fringe Benefit Funds in accordance with the terms
of the collective-bargaining agreement executed on
August 24, 1974; by failing and refusing, since De-
cember 17, 1980, to remit to the trustees currently
due fringe benefit contributions on behalf of the
unit employees; and by unilaterally changing and
modifying the provisions of its collective-bargain-
ing agreement and its agreement to reduce its in-
debtedness without complying with the notice re-
quirements of the collective-bargaining agreement
and/or Section 8(d) of the Act. Respondent failed
to file an answer to the complaint.
On November 2, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
18, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
260 NLRB No. 198
Cause and, therefore, the allegations in the Motion
for Summary Judgment stand uncontroverted.
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-
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 duly served
on Respondent herein specifically states that unless
an answer to the complaint is filed within 10 days
of service thereof "all of the allegations in the
Complaint shall be deemed to be admitted true and
may be so found by the Board." As noted above,
Respondent has failed to file a response to the
Notice To Show Cause. According to the Motion
for Summary Judgment, on September 21, 1981,
the Regional attorney for Region 7 mailed a letter
to Repondent giving it until October 1, 1981, to file
an answer, and stating that failure to do so would
result in filing of a Motion for Summary Judgment.
No answer has been filed.
Accordingly, under the Board's Rule set forth
above, no good cause having been shown for the
failure to file a timely answer, the allegations of the
complaint are deemed admitted and are found to be
true, and we shall grant the General Counsel's
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Gerry Di Ponio & Sons, Inc., is, and has been at
all times material herein, a corporation duly orga-
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GERRY DI PONIO & SONS, INC.
nized under, and existing by virtue of, the laws of
the State of Michigan. At all times material herein,
Respondent has maintained its principal office and
place of business at 745 Randolph, Apartment 224,
in the city of Northville, and State of Michigan. At
all times material herein, Respondent has main-
tained, from time to time, other places of business
at construction sites within the State of Michigan.
Respondent is, and has been at all times material
herein, engaged in the construction industry as an
underground contractor.
During the year ending December 30, 1980,
which period is representative of its operations
during all times material herein, Respondent, in the
course and conduct of its business operations, pur-
chased and caused to be transported and delivered
at its Michigan construction sites pipes, fittings,
valves, manhole coverings, heavy machinery parts,
and other goods and materials valued in excess of
$50,000, which were received from other enter-
prises including, inter alia, Price Brothers and
Bitten Bros., located in the State of Michigan, each
of which other enterprises had received the said
goods and materials delivered to Respondent di-
rectly from points located outside the State of
Michigan. During the same period, Respondent, in
the course and conduct of its business operations,
performed services valued in excess of $500,000 for
various municipalities, including the city of Garden
City, Michigan, and the city of Farmington, Michi-
gan.
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
International Union of Operating Engineers,
Local No. 324, 324-A, 324-B and 324-C, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(5) and (1) Violations
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All operating engineers, mechanics, master me-
chanics, oilers and apprentice engineers em-
ployed by Respondent at its various construc-
tion sites in the State of Michigan, but exclud-
ing guards and supervisors as defined in the
Act.
2. The representative status of the Union
Since August 24, 1974, and at all times material
herein, the Union has been the designated and the
recognized exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit de-
scribed above. Such recognition is embodied in a
collective-bargaining agreement dated August 24,
1974, whereby Respondent agreed to abide by the
wage rates, fringe benefits, working rules, and clas-
sifications as set forth in the most current master
collective-bargaining agreement between the Asso-
ciated Underground Contractors, Inc., and the
Union, the most recent of which is effective by its
terms from September 1, 1980, to September 1,
1983. The Union has been the majority designated
representative for purposes of collective bargaining
of the employees in the unit described above, and,
by virtue of Section 9(a) of the Act, has been, and
is now, the exclusive bargaining representative of
all employees in said unit for the purpose of collec-
tive bargaining with respect to wages, rates of pay,
hours, and other terms and conditions of employ-
ment.
B. The Refusal To Bargain
The collective-bargaining agreement between
Respondent and the Union provides, inter alia, that
the parties shall be bound by the terms and condi-
tions negotiated in each successive master agree-
ment unless notice to terminate or amend the
agreement is served on the other party in writing
not more than 90 nor less than 60 days prior to the
termination date of the current master agreement.
At no time material herein has either Respondent
or the Union served notice of amendment or termi-
nation of the agreement. The master agreement be-
tween the Associated Underground Contractors,
Inc., and the Union provided, inter alia, that each
employer bound thereby shall make regular month-
ly contributions to the trustees of the Operating
Engineers Fringe Benefit Funds for work per-
formed by its employees covered by said agree-
ment, for purposes of certain insurance, vacation,
pension, and other benefits for said employees, and,
further, shall furnish to the trustees, upon request,
such information and reports as the trustees may
require in the performance of their duties, and shall
permit said trustees or their authorized agents to
perform an audit and have access to such records
as may be necessary to determine whether or not
the employer is complying in full with its obliga-
tions regarding fringe benefit contributions. In ad-
dition, at all times material herein, each covered
1451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer is required to submit to the trustees
monthly fringe benefit reports reflecting the pay-
roll records for its employees covered by said
agreement.
In January 1981, an audit of Respondent's pay-
roll and other records disclosed that Respondent
was delinquent in its fringe benefit payment obliga-
tions of 1978, 1979, and 1980. Thereafter, on Janu-
ary 30, 1981, Respondent and the Union entered
into a contract under which Respondent acknowl-
edged an indebtedness to the Fringe Benefit Funds
in the amount of $20,487.45 and agreed to make
monthly payments, commencing on February 1,
1981, to satisfy said past due indebtedness. Re-
spondent made the first monthly payment as re-
quired by the contract but thereafter made none of
the other required payments. Furthermore, since
on or about March 1, 1981, Respondent has failed
and refused to submit the required monthly fringe
benefit reports. Since on or about December 17,
1980, and March 1, 1981, respectively, Respondent
has failed and refused to remit currently due fringe
benefit contributions on behalf of the unit employ-
ees, and past due contributions to reduce its indebt-
edness, to the trustees. In addition, Respondent has
unilaterally changed and modified the provisions of
its collective-bargaining agreement, and its subse-
quent agreement to satisfy its indebtedness, without
complying with the notice requirements of said
agreement and/or Section 8(d) of the Act.
Accordingly, we find that Respondent, by the
conduct described above, since December 1980,
and at all times thereafter, has refused to bargain
collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit,
and that, by such refusal, 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 also find that Respondent has interfered with,
restrained, and coerced, and is interfering with, re-
straining, and coercing, its employees in the exer-
cise of their Section 7 rights in violation of Section
8(a)(1) of the Act. Finally, we find that by unilater-
ally changing and modifying the provisions of its
collective-bargaining agreement and its subsequent
agreement to reduce its indebtedness, without
notice to the Union, in violation of Section 8(d) of
the Act, Respondent has also violated Section
8(a)(5) 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 its 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) and Section 8(d)
of the Act, we shall order that it cease and desist
therefrom, and that it take certain affirmative
action designed to effectuate the policies of the
Act.
Having found that Respondent has failed and re-
fused to remit fringe benefit contributions and to
furnish fringe benefit reports both under the terms
of the current collective-bargaining agreement and
its January 30, 1981, agreement to reduce its in-
debtedness to the Fringe Benefit Funds, we shall
order that it do so, and also order that it make the
unit employees whole for any loss of benefits they
may have suffered by reason of Respondent's fail-
ure to comply with its contract obligations.'
CONCI.USIONS OF LAW
1. Gerry Di Ponio & Sons, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local No. 324, 324-A, 324-B and 324-C, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following described employees of Re-
spondent constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
All operating engineers, mechanics, master me-
chanics, oilers and apprentice engineers em-
ployed by Respondent at its various construc-
tion sites in the State of Michigan, but exclud-
ing guards and supervisors as defined in the
Act.
4. At all times material herein, the above-named
labor organization has been and now is the exclu-
' Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy. We therefore
leave to further proceedings the question of how much interest Respond-
ent must pay into the benefit fund 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 documents
governing the fund at issue and, where there are no governing provi-
sions, to evidence of any loss directly attributable to the unlawful action,
which might include the loss of return on investment of the portion of
funds withheld, additional administrative costs, etc., but not collateral
losses. See Metrryveather Optical Company, 240 NLRB 1213, 1216 at fn 7
(1979)
1452
GERRY DI PONIO & SONS, INC.
sive representative of all employees in the aforesaid
unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By unilaterally ceasing to furnish monthly
fringe benefit reports and payments to the trustees
of the Operating Engineers Fringe Benefit Funds
under the terms of its collective-bargaining agree-
ment, and by refusing to make monthly payments
to the Fringe Benefit Funds under the terms of its
January 1981 agreement to reduce its indebtedness
to the Fringe Benefit Funds, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By unilaterally modifying the terms of its
agreements with the Union, without notice to the
Union as required by its agreements and/or Section
8(d) of the Act, Respondent has also violated Sec-
tion 8(a)(5) and (1) of the Act.
7. By the above-mentioned conduct, Respondent
did interfere with, restrain, coerce, and is interfer-
ing with, restraining, and coercing, its employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby did engage in, and is
engaging in, unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) of the
Act.
8. 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,
Gerry Di Ponio & Sons, Inc., Northville, Michi-
gan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to abide by the terms of
its January 30, 1981, agreement to make monthly
payments to satisfy its past due indebtedness to the
Operating Engineers Fringe Benefit Funds.
(b) Failing and refusing to submit to the trustees
of the Fringe Benefit Funds the monthly reports
reflecting the payroll records for its employees
covered by the collective-bargaining agreement.
(c) Failing and refusing to remit to the Fringe
Benefit Funds currently due fringe benefit contri-
butions on behalf of the unit employees.
(d) Unilaterally changing and modifying the pro-
visions of any agreements to which it is a party
without complying with the notice requirements of
said agreements and/or Section 8(d) of the Act.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their Section 7 rights.
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.
(b) Submit all delinquent fringe benefit reports
and payments due under the January 1981 agree-
ment and the collective-bargaining agreement to
the trustees of the Operating Engineers Fringe
Benefit Funds for the employees in the unit de-
scribed above.
(c) Give effect to the terms of the above-men-
tioned collective-bargaining agreement and the
agreement to reduce its indebtedness to the Operat-
ing Engineers Fringe Benefit Funds and make the
unit employees whole for any loss of benefits they
may have suffered, by paying all Fringe Benefit
Funds contributions, as provided by the terms of
said agreements, which have not been paid and
which would have been paid absent Respondent's
unlawful unilateral discontinuance of such pay-
ments.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of contributions due under the terms of this
Order.
(e) Post at its facility in the State of Michigan
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 7, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 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
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforci.g an
Order of the National Labor Relations Board"
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DECISIONS OF 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
concerning rates of pay, hours of employment,
and other terms and conditions of employment
with International Union of Operating Engi-
neers, Local No. 324, 324-A, 324-B and 324-
C, AFL-CIO, or any other union selected as
the exclusive bargaining representative of our
employees. The bargaining unit is:
All operating engineers, mechanics, master
mechanics, oilers and apprentice engineers
employed by us at our various construction
sites in the State of Michigan, but excluding
guards and supervisors as defined in the Act.
WE WILL NOT fail or refuse to abide by the
terms of our January 30, 1981, agreement to
make monthly payments to satisfy our past due
indebtedness to the Operating Engineers
Fringe Benefit Funds.
WE WIL. NOT fail or refuse to submit the
required fringe benefit reports reflecting the
payroll records for our employees covered by
the collective-bargaining agreement.
WE WILL NOT fail or refuse to remit cur-
rently due fringe benefit contributions on
behalf of unit employees.
WE WILL NOT unilaterally change or modify
the provisions of any agreements to which we
are a party without complying with the notice
requirements of said agreement and/or Section
8(d) of the National Labor Relations Act.
WE WILL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their Section 7 rights.
WE WILL, upon request, bargain with the
above-named labor organization as the exclu-
sive representative of all employees in the
above-described unit with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment.
WE WILL submit all delinquent fringe bene-
fit contributions and reports to the Union and
make appropriate contributions to the Operat-
ing Engineers Fringe Benefit Funds for the
employees in the appropriate unit.
WE WILL give effect to the terms of the
above-described agreements and make the unit
employees whole for any loss of pay or bene-
fits they may have suffered by reason of our
failure to comply with the terms of said agree-
ments.
GERRY DI PONIO & SONS, INC.
1454