Broward Drywall & Acoustical

National Labor Relations Board - Board DecisionsOct 31, 1974

214 N.L.R.B. 497 (N.L.R.B. 1974)

BROWARD DRYWALL & ACOUSTICAL Calvin Sapp, an Individual Proprietorship d/b/a Bro- ward Drywall & Acoustical and Broward County Carpenters District Council Subordinate to the United Brotherhood of Carpenters & Joiners of America, AFL-CIO . Case 12-CA-6184 October 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a charge filed on November 12, 1973, by Broward County Carpenters District Council Subor- dinate to the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the Union, and duly served on Calvin Sapp, an Individu- al Proprietorship d/b/a Broward Drywall & Acousti- cal, herein called the Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint on May 30, 1974, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and no- tice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. Respondent did not file an answer to the complaint. With respect to the unfair labor practices, the com- plaint alleges, in substance, that since on or about June 23, 1973, Respondent has refused to bargain with the contractually recognized Union of its em- ployees and unilaterally instituted and paid wage rates below the hourly rates specified in the collec- tive-bargaining agreement with the Union. The com- plaint alleges that by the aforesaid acts Respondent has violated Section 8(a)(5) and (1) of the Act. On June 19, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based upon Respondent's failure to file an answer as required by Section 102.20 of the Board Rules and Regulations, Series 8, as amended. On July 3, 1974, 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 failed to file a response to the Notice To Show Cause. 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. 497 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 thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions 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 ad- mitted 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 served on the Respondent specifically states that unless an answer to the complaint is filed by the Respondent within 10 days of service thereof "all the allegations of the complaint shall be deemed to be admitted by it to be true and may be so found by the Board." As noted, Respondent did not at any time file an answer to the complaint nor did it file a response to the Notice To Show Cause. No good cause to the contrary having been shown, in accordance with the rule set forth above, the allegations of the complaint are deemed to be admitted and are found to be true. We shall, ac- cordingly, 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 THE RESPONDENT Respondent, a sole proprietorship, has a principal place of business in Fort Lauderdale, Florida, where he is engaged in performing interior contracting work on apartment houses, condominiums, and other types of residential dwellings as a subcontrac- tor in the building and construction industry. During 1973, Respondent had gross revenues in excess of $50,000. Tekton Corporation (herein called Tekton), a Del- aware corporation which operates in several States, including Florida, is engaged in building and selling 214 NLRB No. 37 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apartments from which it had 1973 gross revenues in excess of $500,000 of which more than $37,000 was received from sources outside the State of Florida. During 1973, Respondent performed services for Tekton valued at more than $50,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Broward County Carpenters District Council Sub- ordinate to the United Brotherhood of Carpenters and Joiners of America , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All journeymen and apprentice carpenters employed by the Respondent, excluding all other employees, guards and supervisors as de- fined in the Act. B. The Representative Status of the Union The Union, since on or about December 20, 1972, and for several years prior thereto, was, and is, the recognized representative for purposes of collective bargaining of the employees in the unit described above. Respondent and the Union are parties to a collective-bargaining agreement effective from April 1, 1972, until March 31, 1975. By virtue of Section 9(a) of the Act, the Union continues to be such ex- clusive representative. C. The Request to Bargain and Respondent's Refusal Since on or about June 23, 1973, and continuing to date, Respondent has refused to bargain collectively with the Union by unilaterally, and without notice to the Union, instituting and paying employees wages below the hourly rates specified in the collective-bar- gaining agreement between the Union and Respon- dent. Accordingly, we find that Respondent has since June 23, 1973, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 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 opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pol- icies of the Act. To remedy Respondent's violations of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain col- lectively with the Union as the exclusive representa- tive of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. Having found that Respondent unilaterally and unlawfully changed its existing wage rate, we shall direct that Respondent reintroduce its former wage rates and make whole its employees fro any losses they may have incurred as a result of such changes, together with interest at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Calvin Sapp , an Individual Proprietorship d/b/a Broward Drywall & Acoustical, is an employ- er engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Broward County Carpenters District Council Subordinate to the United Brotherhood of Carpen- ters & Joiners of America , AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. BROWARD DRYWALL & ACOUSTICAL 3. All journeymen and apprentice carpenters em- ployed by Respondent, excluding all other employ- ees, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about December 20, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all em- ployees in the aforesaid appropriate unit for the pur- pose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 23, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit by unilaterally, and without notice to the Union, instituting and paying wages below the hourly rate specified in the collec- tive-bargaining agreement between the Union and Respondent, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Respondent , Calvin Sapp , an Individual Proprietorship d/b/a Broward Drywall & Acoustical , Fort Lauderdale, Florida, his agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Broward County Car- penters District Council Subordinate to the United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All journeymen and apprentice carpenters employed by the Respondent, excluding all other employees, guards and supervisors as de- fined in the Act. 499 by unilaterally, and without notice to the Union, in- stituting and paying wages below the hourly rate specified in the collective-bargaining agreement be- tween the Union and the Respondent. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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: (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 any unilateral changes in rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. (b) Reinstate its formerly existing wage rates and make whole its employees for any losses they may have suffered as a result of the unilateral change in wage rates in the manner set forth in the section herein entitled "The Remedy." (c) Post at its office and place of business in Fort Lauderdale, Florida, copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 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 by unilaterally and without notice to the Union, in- stituting and paying wages below the hourly rate 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specified in the collective-bargaining agreement between the Union and the Respondent, with Broward County Carpenters District Council Subordinate to the United Brotherhood of Car- penters & Joiners of America , AFL-CIO, as the exclusive representative of the employees in the bargaining unit described hereafter: All journeymen and apprentice carpenters employed by the Respondent , excluding all other employees , guards and supervisors as defined in the Act. WE WILL, upon request , bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to any unilateral changes in rates of pay, wages, hours , and other terms and conditions of employment, and, if an understanding is reached , embody such under- standing in a signed agreement. WE WILL reinstate our previously existing wage rate and make whole our employees for losses they may have suffered as a result of the unilateral change in wage rates. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. CALVIN SAPP , INDIVIDUAL PROPRIETORSHIP D/B/A BROWARD DRYWALL & ACOUSTICAL