Breeden Painting Co.

National Labor Relations Board - Board Decisions

Aug 24, 1994

314 N.L.R.B. 870 (N.L.R.B. 1994)

870
314 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Following issuance of the original complaint in Case 16–CA–
16525, which alleged that the Respondent had violated Sec. 8(a)(5)
by failing to provide necessary and relevant information to the
Union regarding employees working on the Respondent’s job at the
Ballpark in Arlington, the Respondent’s vice president sent a letter
to the Region dated April 20, 1994, stating that the Respondent ‘‘de-
nies the complaint in Case 16–CA–16525.’’ The letter asserted that
a company representative had met with the Union in January 1994
to try and resolve any misunderstanding with the Union but the par-
ties were unable to come to an agreement or solution. The letter fur-
ther asserted that the Union had failed to meet its obligations to sup-
ply qualified workers the Respondent needed to complete its job. We
find that the Respondent’s letter does not constitute a sufficient an-
swer under Sec. 102.20 because it fails to meet the substance of the
complaint allegations. See Parisian Manicure Mfg. Co., 258 NLRB
203 (1981); United Super, 256 NLRB 1186 (1981); and Lloyd’s
Laundry & Dry Cleaning, 250 NLRB 1369 (1980). Cf. M. J.
McNally, Inc., 302 NLRB 120 (1991) (Respondent’s pro se answer
specifically denied paragraph of complaint containing operative facts
of the alleged unfair labor practice).
Breeden Painting Co., Inc. and International Broth-
erhood of Painters and Allied Trades, Local
318. Cases 16–CA–16525 and 16–CA–16618
August 24, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon charges filed by the Union on February 11
and March 22, 1994, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated
complaint on June 13, 1994, against Breeden Painting
Co., Inc. (the Respondent) alleging that it has violated
Section 8(a)(1), (3), and (5) of the National Labor Re-
lations Act. Although properly served copies of the
charges and consolidated complaint, the Respondent
failed to file an answer.
On July 11, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On July
14, 1994, 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 Respond-
ent filed no response. The allegations in the motion are
therefore undisputed.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the consolidated
complaint affirmatively notes that unless an answer is
filed within 14 days of service, all the allegations in
the complaint will be considered admitted. Further, the
undisputed allegations in the Motion for Summary
Judgment disclose that the Region, by letter dated June
30, 1994, notified the Respondent that unless an an-
swer was received by July 5, 1994, a Motion for Sum-
mary Judgment would be filed. The Respondent filed
no answer.1
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Oklahoma corporation, with an
office and place of business in Midwest City, Okla-
homa, has been engaged in the building and construc-
tion industry and has been providing painting services
as a subcontractor on the Ballpark in Arlington, the fa-
cility involved in these proceedings, located in Arling-
ton, Texas. During the year preceding issuance of the
complaint, the Respondent purchased and received
goods and materials valued in excess of $50,000,
which goods and materials originated from points and
places outside the State of Texas and were shipped di-
rectly to its Arlington jobsite. We find that at all mate-
rial times, the Respondent has been an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union has
been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
Included: All Painters, Decorators, Paperhangers,
and their apprentices employed by the Employer
at its Arlington, Texas jobsite.
Excluded: All other employees, including guards
and supervisors as defined in the Act.
On about October 7, 1992, Tomco Industries, Inc.,
which is not a party to this proceeding, and the Union
entered into a collective-bargaining agreement (the
Area Agreement) effective from October 7, 1992,
through May 21, 1994, and year-to-year thereafter until
terminated. On about April 22, 1993, the Respondent
entered into a memorandum of understanding with the
Union which at all times material bound the Respond-
ent to the terms and conditions of the Area Agreement.
Respondent, an employer engaged in the building
and construction industry, as described above, granted
recognition to the Union as the exclusive collective-
bargaining representative of the unit without regard to
whether the majority status of the Union had ever been
871BREEDEN PAINTING CO.
2 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f), Member Browning would not reach that issue.
established under the provisions of Section 9(a) of the
Act. Such recognition has been embodied in the
memorandum of understanding described above. For
the period April 22, 1993, until termination of the
memorandum of understanding, based on Section 9(a)
of the Act, the Respondent has been the limited exclu-
sive bargaining representative of the unit.2
On about March 11, 1994, Respondent terminated
Rafael Quinteros and Julian Beltran. Respondent en-
gaged in such conduct because its employees formed,
joined and assisted the Union and engaged in con-
certed activities, and to discourage employees from en-
gaging in these activities.
On about January 25 and 31 and February 7, 1994,
the Union by telephone, certified letter, and facsimile,
respectively, requested that the Respondent furnish it
with the names, wages, and positions of all employees
who worked on the job at the Ballpark in Arlington.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its du-
ties as the limited exclusive collective-bargaining rep-
resentative of the employees in the unit. Since on
about January 25, 1994, the Respondent has failed and
refused, and continues to fail and refuse, to furnish the
Union with the information described above.
Since on or about September 22, 1993, the Respond-
ent has failed to make all required contributions to the
Union’s pension fund, vacation trust fund, and the
joint apprenticeship and training fund. Since on or
about the same date, the Respondent has failed to pay
its employees overtime in accordance with the terms of
the memorandum of agreement, failed to pay its em-
ployees the wage rate required under the terms of the
memorandum of agreement, and failed to abide by the
terms of the grievance procedure set forth in the
memorandum of agreement. The subjects set forth
above relate to wages, hours, and other terms and con-
ditions of employment of the unit and are mandatory
subjects for the purposes of collective bargaining. The
Respondent engaged in the conduct described above
without prior notice to the Union and without afford-
ing the Union an opportunity to bargain with the Re-
spondent regarding this conduct and the effects of this
conduct.
CONCLUSION OF LAW
By terminating employees Rafael Quinteros and Ju-
lian Beltran, the Respondent has discriminated in re-
gard to hire, or tenure, or terms or conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization in violation of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
By failing and refusing to provide information re-
quested by the Union on about January 25 and 31 and
February 7, 1994, to make all required contributions to
the Union’s pension, vacation trust, and the joint ap-
prenticeship and training funds, and to pay its employ-
ees overtime and the wage rate as set forth in the
memorandum of agreement and abide by the terms of
the grievance procedure set forth in the memorandum
of agreement, the Respondent has failed and refused to
bargain in good faith with the Union as the limited ex-
clusive representative of the unit employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Specifically, having found that the Respondent has
violated Section 8(a)(3) and (1) by discharging Rafael
Quinteros and Julian Beltran, we shall order the Re-
spondent to offer the discriminatees immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and to make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them. Backpay
shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
expunge from its files any and all references to the un-
lawful discharges and to notify the discriminatees in
writing.
Further, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) since about September 22,
1993, by failing to make contractually required con-
tributions to the Union’s pension fund, vacation trust
fund, and the joint apprenticeship and training fund,
we shall order the Respondent to make whole its unit
employees by making all such delinquent contribu-
tions, including any additional amounts due the funds
in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). In addition, the Re-
spondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d. 940
(9th CIr. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F2d. 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, supra.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Further, having found that the Respondent violated
Section 8(a)(5) and (1) since about September 22,
1993, by failing to pay unit employees contractual
wages rates and overtime, we shall order the Respond-
ent to make the unit employees whole for any losses
attributable to its reduction in wages and overtime as
set forth in Ogle Protection Service, supra, with inter-
est to be computed in the manner prescribed in New
Horizons for the Retarded, supra.
Finally, having found that the Respondent has also
violated Section 8(a)(5) and (1) by failing to provide
the Union information that is relevant and necessary to
its role as the exclusive bargaining representative of
the unit employees, we shall order the Respondent to
furnish the Union the information requested.
ORDER
The National Labor Relations Board orders that the
Respondent, Breeden Painting Co., Inc., Midwest City,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because of union or other protected con-
certed activities
(b) Failing and refusing to bargain with the Inter-
national Brotherhood of Painters and Allied Trades,
Local 318, as the limited exclusive collective-bar-
gaining representative of the employees in the unit de-
scribed below, by failing and refusing to provide infor-
mation requested by the Union that is necessary for,
and relevant to, its performance of its function as the
limited exclusive representative of the unit employees,
failing and refusing to make contributions to the
Union’s pension fund, vacation trust fund, and the
joint apprenticeship and training fund, as required by
the memorandum of agreement, and failing and refus-
ing to pay its employees overtime and wage rates and
to comply with the grievance procedure as set forth in
the memorandum of agreement:
Included: All Painters, Decorators, Paperhangers,
and their apprentices employed by the Employer
at its Arlington, Texas jobsite.
Excluded: All other employees, including guards
and supervisors as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Rafael Quinteros and Julian Beltran imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to a substantially equivalent
position, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of this
decision.
(b) Remove from its files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharge will not
be used against them in any way.
(c) Make all required contributions to the Union’s
pension fund, vacation trust fund, and the joint appren-
tice and training fund retroactive to September 22,
1993, in the manner set forth in the remedy section of
this decision.
(d) Process any grievances that it failed to process
in accordance with the terms of the memorandum of
agreement retroactive to September 22, 1993.
(e) Honor the terms of the memorandum of agree-
ment with the Union, and make whole the unit em-
ployees for any loss of earnings, benefits, or expenses
resulting from its failure to make contributions to the
Union’s pension fund, vacation trust fund, and the
joint apprenticeship and training fund, and to pay over-
time and wage rates as required by the memorandum
of agreement, as set forth in the remedy section of this
decision.
(f) Furnish the Union the information it requested on
about January 25 and 31 and February 7, 1994.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its facility in Arlington, Texas, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 16, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced or covered by any other material.
873BREEDEN PAINTING CO.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against employees because they joined or assisted the
Union or because they engaged in other protected con-
certed activities for the purposes of collective bar-
gaining or mutual aid or protection.
WE WILL NOT refuse to bargain with International
Brotherhood of Painters and Allied Trades, Local 318
as the limited exclusive collective-bargaining rep-
resentative of the employees in the unit described
below by failing to provide relevant and necessary in-
formation to the Union, failing to make contributions
to the Union’s pension fund, vacation trust fund, and
the joint apprenticeship and training fund, and failing
to pay employees overtime and wage rates and process
grievances in accordance with our memorandum of
agreement with the Union:
Included: All Painters, Decorators, Paperhangers,
and their apprentices employed by us at our Ar-
lington, Texas jobsite
Excluded: All other employees, including guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer employees Rafael Quinteros and Ju-
lian Beltran full and immediate reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of their unlawful terminations, with interest.
WE WILL notify Rafael Quinteros and Julian Beltran,
in writing, that we have removed from our files any
reference to their discharges and that the discharges
will not be used against them in any way.
WE WILL make all required contributions to the
Union’s pension fund, vacation trust fund, and the
joint apprentice and training fund retroactive to Sep-
tember 22, 1993.
WE WILL process any grievances that we failed to
process in accordance with the terms of the memo-
randum of agreement retroactive to September 22,
1993.
WE WILL honor all the terms of our memorandum
of agreement with the Union and WE WILL make whole
the unit employees for any loss of earnings, benefits,
or expenses they may have incurred as result of our
failure and refusal to make contributions to the pen-
sion, vacation trust, and the joint apprenticeship and
training fund and to pay overtime and wage rates as
required by the memorandum of agreement, with inter-
est.
BREEDEN PAINTING CO., INC.