Hyde Park Construction Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 849 (N.L.R.B. 1981)

HYDE PARK CONSTRUCTION COMPANY
Hyde Park Construction Company and Local 67,
Operative Plasterers' and Cement Masons' In-
ternational Association of the United States and
Canada, AFL-CIO and Local 131, Plasterers
Tenders Union, Laborers' International Union
of North America, AFL-CIO. Cases 7-CA-
18610(1) and 7-CA-18610(2)
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon charges filed on December 4, 1980, by
Local 67, Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, herein called Local
67, and by Local 131, Plasterers Tenders Union,
Laborers' International Union of North America,
AFL-CIO, herein called Local 131, and duly
served on Hyde Park Construction Company,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a consolidated
complaint on January 28, 1981, against Respondent,
alleging that Respondent had enagaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(I) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charges
and the consolidated complaint and notice of hear-
ing before an administrative law judge were duly
served on the parties to this proceeding.
On August 24, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 27,
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
Cause and the averments of the Motion for Sum-
mary Judgment and of the attached supporting ex-
hibits and certifications 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 as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
258 NLRB No. 114
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 consolidated complaint and notice of hear-
ing served on Respondent specifically states that
unless an answer to the consolidated complaint is
filed by Respondent within 10 days of service
thereof "all of the allegations in the Consolidated
Complaint shall be deemed to be admitted true and
may be so found by the Board." Further, accord-
ing to Exhibit G submitted by counsel for the Gen-
eral Counsel, on June 8, 1981, he mailed, by regu-
lar mail, a letter notifying Respondent of its failure
to file an answer and requesting that Respondent
file an answer by June 22, 1981. Counsel for the
General Counsel also avers that a few days thereaf-
ter he received a telephone call from Lovett D.
Thorton, general manager of Respondent. Thorton
stated that an answer would be filed shortly. No
answer was received from Respondent by June 22,
1981, or by August 17, 1981, the date of the
Motion for Summary Judgment. No good cause for
failure to file an answer having been shown, in ac-
cordance with the rule set forth above, the allega-
tions of the complaint are deemed to be admitted
to be true. We, accordingly, find as true all the al-
legations of the complaint and grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation duly organized
under the laws of the State of Michigan. Respond-
ent's principal office and place of business is locat-
ed at 16629 Meyers Road, Detroit, Michigan,
where it is engaged in the installation of plaster and
drywall walls and partitions and related work in
buildings under construction by other firms.
During the year ending December 31, 1980, a rep-
resentative period, Respondent in the course and
conduct if its business operations, performed serv-
ices valued in excess of $100,000, of which services
valued in excess of $50,000 were performed for
849
DECISIONS OF NATIONAL LAI)OR RELATIONS 1()ARD
Turner Construction Company, a New York cor-
poration, with offices and jobsites in Michigan,
New York, and other States. Turner Construction
Company is engaged in the construction industry
as a general contractor and on an annual basis de-
rives gross revenue in excess of $10 million from its
construction activities in States other than New
York.
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 L.ABOR ORGANIZATIONS INVOLVED
Local 67, Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, and Local 131,
Plasterers Tenders Union, Laborers' International
Union of North America, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute units appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act:
All journeymen and apprentice plasterers,
including all practical plasterers, employed by
the Respondent; but excluding all office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
All plasterers tenders employed by the Re-
spondent; but excluding all office clerical em-
ployees, guards and supervisors as defined in
the Act.
On or about August 27, 1979, Respondent en-
tered into collective-bargaining agreements with
Local 67 and Local 131. Both collective-bargaining
agreements were effective from June 1, 1978, to
May 30, 1980, and renewable from year to year
thereafter. Both collective-bargaining agreements
contained union-security provisions encompassing
Respondent's employees in the units described
above. The collective-bargaining agreements, re-
ferred to above, were renewed by their own terms
on May 30, 1980, and are now in effect between
the parties. At all times material herein, and by
virtue of the successive collective-bargaining agree-
ments described above, Local 67 and Local 131
have been the representatives for purposes of col-
lective bargaining of all employees in the units de-
scribed above and continue to be the exclusive rep-
resentatives within the meaning of Section 9(a) of
the Act.
B. Respondent s Refusal To Bargain and
Unilateral Change in Terrn.s and Conditions of
Employment
The collective-bargaining agreements described
in section A, above, require, inter alia. that Re-
spondent make monthly payments to certain desig-
nated fringe benefit funds. They also require that
Respondent submit monthly reports to the Unions
indicating the amount owed per employee to the
various fringe benefit funds. Since on or about June
4, 1980, Respondent has failed to submit both the
monthly payments and the monthly reports. Addi-
tionally, since on or about June 4, 1980, Respond-
ent has, on dates well within its knowledge, failed
to pay to its employees the wages due them under
the collective-bargaining agreements.
Accordingly, we find that Respondent has, since
on or about June 4, 1980, and at all times thereaf-
ter, unilaterally, and without notice to Local 67
and Local 131, evaded, breached, and modified the
terms of the collective-bargaining agreements be-
tween it and Local 67 and Local 131, respectively.
By its conduct Respondent has failed to bargain
with the Unions as the exclusive representatives of
the employees in the appropriate units, and Re-
spondent has therefore engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 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 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) 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.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
50
HYDIE PARK CONSTRUCTION C()MPANY
CONCIUSIONS OFi LAW
I. Hyde Park Construction Company is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 67, Operating Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, and Local 131,
Plasterers Tenders Union, Laborers' International
Union of North America, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
3. The following units constitute units appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All journeymen and apprentice plasterers,
including all practical plasterers, employed by
the Respondent; but excluding all office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
All plasterers tenders employed by the Re-
spondent; but excluding all office clerical em-
ployees, guards and supervisors as defined in
the Act.
4. Since August 27, 1979, by virtue of successive
collective-bargaining agreements, the above-named
labor organizations have been and are currently the
exclusive representatives of all employees in the
aforesaid appropriate units for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By failing on or about June 4, 1980, and at all
times thereafter, to make monthly payments to cer-
tain designated fringe benefit funds, as required by
its collective-bargaining agreements with the
above-named labor organizations, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By failing on or about June 4, 1980, and at all
times thereafter, to submit certain monthly reports
to the above-named labor organizations indicating
the amount owed per employee to the various
fringe benefit funds, as required by the respective
collective-bargaining agreements between Respond-
ent and the above-named labor organizations, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
7. By failing on or about June 4, 1980, and on
other dates well within Respondent's knowledge,
to pay its employees the wages due them under the
collective-bargaining agreements between itself and
the above-named labor organizations, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
8. By the aforesaid conduct, Respondent has in-
terfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing, employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act. and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
9. 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,
Hyde Park Construction Company, Detroit, Michi-
gan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing to make monthly payments to certain
designated fringe benefit funds as provided for in
the collective-bargaining agreements described in
section A, above.
(b) Failing to submit certain monthly reports in-
dicating the amount owed per employee to various
fringe benefit funds as provided for in the collec-
tive-bargaining agreements between Hyde Park
Construction Company and Local 67, Operative
Plasterers' and Cement Masons' International Asso-
ciation of the United States and Canada, AFL-
CIO, and Local 131, Plasterers Tenders Union, La-
borers' International Union of North America,
AFL-CIO, the exclusive bargaining representatives
of its employees in the following, respective, ap-
propriate units:
All journeymen and apprentice plasterers,
including all practical plasterers, employed by
Hyde Park Construction Company; but ex-
cluding all office clerical employees, guards
and supervisors as defined in the Act.
All plasterers tenders employed by the Hyde
Park Construction Company; but excluding all
office clerical employees, guards and supervi-
sors as defined in the Act.
(c) Failing to pay its employees the wages due
them under the collective-bargaining agreements
described in section A, above.
(d) 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:
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Honor and abide by the terms and conditions
of employment provided for in the collective-bar-
gaining agreements with Local 67, Operative Plas-
terers' and Cement Masons' International Associ-
ation of the United States and Canada, AFL-CIO,
and Local 131, Plasterers Tenders Union, Laborers'
International Union of North America, AFL-CIO.
(b) Make all payments owed to the designated
fringe benefit funds as required by the collective-
bargaining agreements.
(c) Reimburse any employee for any expenses in-
curred by the employees due to the failure of Re-
spondent to maintain any health or hospitalization
plan in effect by failing to pay the contractually re-
quired amounts, with interest thereon to be com-
puted in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).
(d) Provide the Unions with monthly reports in-
dicating the amounts owed to the various fringe
benefit funds per employee, retroactive to June 4,
1980.
(e) Reimburse all employees for all unpaid wages
at the rates set forth in the collective-bargaining
agreements, with interest thereon to be computed
in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1979).1
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all records necessary to analyze the payments
owed to the fringe benefit funds and the employees
as set forth under the terms of the Order.
(g) Upon request, bargain in good faith with
Local 67, Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, and Local 131,
Plasterers Tenders Union, Laborers' International
Union of North America, AFL-CIO, as the exclu-
sive bargaining representatives of its employees in
the respective appropriate units described above.
(h) Post at its Detroit, Michigan, facility 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 Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
See, generally. htis Plumbing d earing Co., 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpa
due based on the formula set forth therein.
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 Enforcing an
Order of the National Labor Relations Board"
insure that said notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to make monthly pay-
ments to certain designated fringe benefit
funds as provided for in the collective-bargain-
ing agreements with Local 67, Operative Plas-
terers' and Cement Masons' International As-
sociation of the United States and Canada,
AFL-CIO, and Local 131, Plasterers Tenders
Union, Laborers' International Union of North
America, AFL-CIO, as the exclusive bargain-
ing representatives of the employees in the
bargaining units described below.
WE WILL. NOT fail to submit monthly reports
indicating the amount owed per employee to
the various fringe benefit funds as provided for
in the collective-bargaining agreements with
the above-named labor organizations.
WE WILL NOT fail to pay our employees the
wages due them as provided for in the collec-
tive-bargaining agreements with the above-
named labor organizations.
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 honor and abide by the terms and
conditions of employment provided for in the
collective-bargaining agreements with Local
67. Operative Plasterers' and Cement Masons'
International Association of the United States
and Canada, AFL-CIO, and Local 131, Plas-
terers Tenders Union, Laborers' International
Union of North America, AFL-CIO.
WE WILL make all payments owed to the
designated fringe benefit funds as required by
the collective-bargaining agreements.
WE WIl.L. reimburse any employee, with in-
terest, for any expenses incurred by the em-
ployees due to our failure to maintain any
health or hospitalization plan in effect by fail-
ing to pay the contractually required amounts.
WE WILL provide the above-named labor
organizations with monthly reports indicating
the amounts owed the various fringe benefit
funds per employee.
852
HYDE PARK CONSTRUCTION COMPANY
WE WILL reimburse all employees for all
unpaid wages at the rates set forth in the col-
lective-bargaining agreements, with interest.
WE WILL, upon request, bargain in good
faith with Local 67, Operative Plasterers' and
Cement Masons' International Association of
the United States and Canada, AFL-CIO, and
Local 131, Plasterers Tenders Union, Labor-
ers' International Union of North America,
AFL-CIO, as the exclusive representative of
the employees in the bargaining units de-
scribed below.The bargaining units are:
All journeymen and apprentice plasterers,
including all practical plasterers, employed
by Hyde Park Construction Company; but
excluding all office clerical employees,
guards and supervisors as defined in the Act.
All plasterers tenders employed by the Hyde
Park Construction Company; but excluding
all office clerical employees, guards and su-
pervisors as defined in the Act.
HYDE PARK CONSTRUCTION COMPANY
853