Atlantic Structures Corporation, No. 13 (2005)

Atlantic Structures Corporation and United Brotherhood of Carpenters and Joiners of America, Local 613. Case 5–CA–31460

February 8, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

The General Counsel seeks summary judgment in this case pursuant to the terms of a settlement agreement. Upon a charge and first amended charge filed by the Union on September 10 and October 28, 2003, respectively, the General Counsel issued the complaint on November 19, 2003, against Atlantic Structures Corporation, the Respondent, alleging that it has violated Section 8(a)(1), (3), and (5) of the Act. The Respondent filed an answer.[1]

Thereafter, on July 15, 2004, the administrative law judge approved an informal Board settlement agreement that was signed by the Respondent, the Union, and the General Counsel. Among other things, the settlement required the Respondent to: (1) pay alleged discriminatee William Beyer $11,500, plus FICA contributions; (2) make whole, with interest, all unit employees for any losses they may have suffered as a result of the Respondent’s failure to pay wage rates set forth in its collective-bargaining agreement with the Union; (3) make all fringe benefit fund contributions required by the collective-bargaining agreement, and make all unit employees whole for any expenses resulting from the Respondent’s failure to make the pension and other fringe benefit contributions, with interest to the date of payment, as required by the collective-bargaining agreement and the accompanying fringe benefit participation agreements; and (4) escrow with the Board $25,000 to be used to make unit employees whole, with this amount due within 45 days of the signing of the settlement agreement.

In addition, the settlement agreement required the Respondent to allow the Union to conduct an audit of the Respondent’s payroll records within 30 days of the signing of the agreement to determine, and issue a report on, wages and benefit fund contributions owed to unit employees pursuant to the collective-bargaining agreement and the accompanying fringe benefit participation agreements. The settlement provided that once the audit was complete and a determination had been made as to wages and benefits owed, the Union would issue a summary report of payments owed and to be disbursed out of the escrow fund. If the amount owed exceeded the escrow fund, the Respondent would be granted the right to make six equal monthly payments of the additional wages and benefits owed pursuant to the report. The settlement agreement provided, however, that payment of wages and benefits owed pursuant to the agreement would begin within 45 days of the signing of the agreement.

Further, the settlement agreement required the Respondent to post a notice to employees; to mail the notice to all unit employees employed between March 17 and September 1, 2003; to provide the Union and the Region with a list of the names and addresses of all employees to whom the notice was sent; and to provide the Region with the names and addresses of all former employees who were on the RespondentÂ’s payroll from March 1, 2003 through August 2003, in order that the Region could mail copies of the notice to them.

The agreement also contained the following provisions:

COMPLIANCE WITH NOTICE—The Charged Party will comply with all the terms and provisions of said Notice. The Charged Party will notify the Region in writing upon completion of all affirmative obligations. In consideration of the Administrative Law Judge approving this Settlement Agreement, Respondent agrees that, in the event of any non-compliance to make required payments on the date specified, or to cure any such failure within fourteen (14) days of the specified payment date, the total amount cited in the Charging Party’s audit report for wages and contributions owed to unit employees plus interest to date of payment shall become immediately due and payable. Respondent agrees after fourteen (14) days’ notice from the Regional Director of the National Labor Relations Board, on motion for summary judgment by the General Counsel, Respondent’s Answer shall be considered withdrawn. Thereupon, the Board may issue an order requiring Respondent to show cause why said Motion of the General Counsel should not be granted. The Board may, without necessity of trial, find all allegations of the Amended Complaint[2] to be true, and make findings of fact and conclusions of law consistent with those allegations adverse to respondent on all issues raised by the pleadings. The Board may then issue an Order providing full remedy as specified in the Amended Complaint. The parties further agree that a Board Order and U.S. Court of Appeals Judgment thereon may be entered ex parte. [Italics in original.]

By letter dated July 21, 2004, counsel for the General Counsel advised the Respondent that it was appropriate to proceed with compliance with the settlement agreement. By letter dated August 19, 2004, the compliance officer for Region 5 advised the Respondent that it had not complied with the terms of the settlement agreement, and stated that if the Respondent did not comply by September 1, 2004, the result may be a recommendation that the General Counsel file a Motion for Summary Judgment with the Board. To date, however, the Respondent has failed to comply with the settlement agreement in any manner.

On November 24, 2004, the General Counsel filed a Motion for Summary Judgment with the Board. On November 30, 2004, 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 allegations in the Motion are therefore undisputed.

Ruling on Motion for Summary Judgment

According to the uncontroverted allegations in the General Counsel’s motion, although the Respondent filed an answer to the complaint, it subsequently entered into a settlement agreement, which provided for the withdrawal of the answer in the event of noncompliance with the settlement agreement. The Respondent has failed to comply with the terms of the settlement agreement by, among other things, failing to remit $11,500, plus FICA contributions, to William Beyer, with interest; make all contractually-required fringe benefit fund contributions and make all unit employees whole for any expenses resulting from its failure to make the required pension and other fringe benefit contributions, with interest to the date of payment; escrow with the Board $25,000 to be used to make unit employees whole; allow the Union to conduct an audit of the Respondent’s payroll records to determine, and issue a report on, wages and benefit fund contributions owed to unit employees as required by the collective-bargaining agreement and the accompanying fringe benefit participation agreements; and mail a notice to all unit employees employed by the Respondent between March 17 and September 1, 2003, and provide the Union and the Region with a list of those employees, including their full names and addresses. We therefore find that the Respondent’s answer has been withdrawn pursuant to the terms of the settlement agreement, and that as further provided in that agreement, all the allegations of the complaint are true.[3]

Accordingly, we grant the General CounselÂ’s Motion for Summary Judgment.

On the entire record, the Board makes the following

Findings of Fact

i. jurisdiction

At all material times, the Respondent, a Virginia corporation with an office and place of business in Virginia Beach, Virginia, has been engaged in the business...