Minter, William, Masonry Contractor, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1121 (N.L.R.B. 1982)

WILLIAM MINTER MASONRY
William Minter Masonry Contractor, Inc. and Inter-
national Union of Bricklayers and Allied Crafts-
men, Local No. I of Tucson, Arizona and
Southern Arizona Masonry Association and In-
ternational Union of Bricklayers and Allied
Craftsmen, Local No. 1, Tucson, Arizona,
Health and Welfare Trust Fund and Tucson
Bricklayers Pension Trust Fund. Cases 28-CA-
5764-1 and 28-CA-5764-2
March 22, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 15, 1980, the National Labor Re-
lations Board issued its Decision and Order' in the
above-entitled proceeding in which it concluded,
inter alia, that Respondent had violated Section
8(a)(l) and (5) of the Act by unilaterally discon-
tinuing making payments and reports to trust funds
and remitting dues deducted from employees as re-
quired by articles X and XI of the collective-bar-
gaining agreement between International Union of
Bricklayers and Allied Craftsmen, Local Union
No. 1 of Tucson, Arizona (herein called the
Union), and Southern Arizona Masonry Associ-
ation, effective from July 1, 1978, through June 30,
1982. The Board ordered Respondent to make
whole its employees by making reports and pay-
ments to the trust fund as required by article X of
the agreement and remitting the sums deducted
from its employees for union dues to the deposi-
tory designated by the Union as required by article
XI of the agreement. Thereafter, on June 24, 1981,
the United States Court of Appeals for the Ninth
Circuit entered its judgment enforcing the Board's
Order. A controversy having arisen over the
amounts of fringe benefits and payments due under
the Board's Order, as enforced by the court, the
Acting Regional Director for Region 28, on Sep-
tember 11, 1981, issued and duly served Respond-
ent by certified mail a backpay specification and
notice of hearing alleging the amounts of fringe
benefit payments due to the Union's respective
fringe benefit funds on behalf of certain unit em-
ployees and the amounts of union dues that should
have been checked off and remitted to the Union.
The backpay specification and the affidavit of serv-
ice of the backpay specification with the post office
receipt attached show that Respondent was duly
served. Thereafter, on September 22, 1981, Re-
spondent filed its answer to the specification in the
'252 NLRB 130 (1980).
form of a letter stating its financial inability to
make the payments due under the Board's Order.
On October 5, 1981, counsel for the General
Counsel caused to be served on Respondent, by
certified mail, a letter informing Respondent of its
duty to timely answer the backpay specification
and the requirements of the answer. On October
11, 1981, Respondent served by ordinary mail a
letter generally denying the allegations in the speci-
fication and again stating its financial inability to
make the payments due under the Board's Order.
On November 4, 1981, counsel for the General
Counsel filed directly with the Board a motion for
judgment on the pleadings in accordance with the
specification, herein called Motion for Summary
Judgment. Subsequently, on November 9, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause on or
before November 27, 1981.
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 102.54 of the Board's Rules and Regula-
tions, Series 8, as amended, provides in pertinent
part as follows:
(a) . . . The respondent shall, within 15 days
from the service of the specification, if any,
file an answer thereto ....
(b) . . . The respondent shall specifically
admit, deny, or explain each and every allega-
tion of the specification, unless the respondent
is without knowledge, in which case the re-
spondent shall so state, such statement operat-
ing as a denial. Denials shall fairly meet the
substance of the allegations of the specification
denied. .... As to all matters within the
knowledge of the respondent, including but
not limited to the various factors entering into
the computation of gross backpay, a general
denial shall not suffice. ....
(c) . . . If the respondent files an answer to
the specification but fails to deny any allega-
tion of the specification in the manner required
by subsection (b) of this section, and the fail-
ure so to deny is not adequately explained,
such allegation shall be deemed to be admitted
to be true, and may be so found by the Board
without the taking of evidence supporting such
allegation, and the respondent shall be pre-
260 NLRB No. 157
1121
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
cluded from introducing any evidence contro-
verting said allegation.
The backpay specification duly issued, served,
and received by Respondent states that an answer
shall be filed within 15 days after service of the
specification and that, to the extent that the answer
denies, without adequate explanation, the allega-
tions of the specification in the manner required by
the Board's Rules and Regulations, such allegations
shall be deemed to be admitted to be true and Re-
spondent precluded from introducing any evidence
controverting them. According to the Motion for
Summary Judgment, by letters dated September 22
and October 11, 1981, Respondent filed an answer
stating that "all allegations are not true," and as-
serted financial inability to pay anything.
Respondent's answer merely contains a general
denial of the allegations of the backpay specifica-
tion and does not specifically deny the allegations
as required by Section 102.54(b) of the Board's
Rules and Regulations. The failure to so deny is
not adequately explained. Accordingly, as the
answer fails to comply with the provision of Sec-
tion 102.54(b), the allegations of the specification
are deemed to be admitted to be true and are so
found by the Board without taking evidence in
support of said allegations.
Accordingly, on the basis of the allegations of
the specification which are accepted as true, the
Board finds the facts as set forth therein and con-
cludes the fringe benefit and dues payments that
should have been remitted to the Union are as
stated in the computation of the specification. The
Board orders that fringe benefit payments be made
by Respondent to the joint board of trustees d(esig-
nated to administer the Union's Health and Wel-
fare, Pension and Apprenticeship Training Funds
and to the trust fund designated to administer the
Southern Arizona Masonry Association Industry
Program and that dues payments be made to a de-
pository designated by the Union for the collection
of union dues.
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,
William Minter Masonry Contractor, Inc.,
Tucson, Arizona, its officers, agents, successors,
and assigns, shall make whole the employees in the
appropriate unit by making all fringe benefit trust
fund payments to the joint board of trustees desig-
nated to administer the Union's Health and Wel-
fare, Pension and Apprenticeship Training Funds
in the amount of $28,312.75 and to the trust fund
designated to administer the Southern Arizona Ma-
sonry Association Industries Program in the
amount of $2,535.47; and by remitting the sum of
$2,072.25 that it deducted from its employees'
wages for union dues to the depository designated
by the Union. Interest on the dues shall be comput-
ed in the manner prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).2
2 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
Because the provisions of employee benefit fund agreements are variable
and complex, the Board does not provide at the adjudicatory stage of a
proceeding for the addition of interest at a fixed rate on unlawfully with-
held fund payments We leave to the compliance stage the question of
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy These amounts may
be determined, depending on the circumstances of each case, by refer-
ence to provisions in the documents 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. See Merrywealher Opti-
cal Co., 240 NLRB 1213, 1216 (1979)
1122