Burnham Brothers, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 697 (N.L.R.B. 1975)

BURNHAM BROTHERS, INC.
Burnham Brothers, Inc. and Brotherhood of Painters
and Allied Trades of America, I:ocal No. 86. Case
28-CA-3372
June 19, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENEI LO
Upon a charge filed on December 6, 1974, by
Brotherhood of Painters and Allied Trades of
America, Local No. 86, herein called the Union, and
duly served on Burnham Brothers, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 28 , issued a complaint on January 30, 1975,
against Respondent alleging that Respondent had
engaged in and was engaging , in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5)a of the National Labor
Relations Act, as amended. Copies of the charge
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges, in substance, that Respondent
violated Section 8(a)(1) and (5) of the Act by (1)
refusing to recognize and bargain with the Union; (2)
unilaterally effecting changes in the terms and
conditions of employment, including failure to make
contributions to trust funds required by a collective-
bargaining agreement ; and (3) specifically repudiat-
ing and failing to abide by an association agreement
to which it was a party. .Respondent failed to file an
answer to the complaint.
On March '10, 1975, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment based on Respondent's failure to
file an answer as required by Section 102.20 of the
Board's Rules and Regulations , Series 8, as amended.
On March 17, 1975, the Board issued an, order
transferring the proceeding to the Board and a notice
to show cause, why the General Counsel's motion
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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
697
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 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 complaint and notice of hearing served on the
Respondent specifically state that unless an answer
to the complaint is filed by the Respondent within 10
days of service thereof "all of the allegations in 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 rules set forth
above, the averments of the complaint are deemed to
be admitted and are found to be true.' We shall,
accordingly, grant the motion for summary judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Arizona corporation, with its
principal office and place of business in Mesa,
Arizona, is engaged in business as a plastering and
drywall contractor in the building and construction
industry. During the past year Respondent per-
formed services valued in excess of $50,000 for Levitt
Multihousing Corp., herein called Levitt.
Levitt, a Delaware corporation with its principal
office in Los Angeles, California, is engaged in
business in, various States of the United States,
including California and Arizona, as a general
contractor in the building and construction industry.
During the past year it performed services valued in
excess of $50,000 outside the State of California and
1 Wilson & Sons, 193 NLRB 350 (1971).
218 NLRB No. 104
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received - goods valued in excess of $50,000 for its
Arizona operations , which were delivered to it in the
State of Arizona directly from States other than the
State of Arizona . We find on the basis of the
foregoing that Levitt and the Respondent are
employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Brotherhood of Painters and Allied Trades of
America, Local No. 86, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of the Respondent
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act: "All journeymen and apprentice
drywall tapers and texture spraymen; excluding all
other employees, including guards,, watchmen and
supervisors as defined in the Act."
B. The Representative Status of the Union.
On or about November 20, 1969, Burnham
Brothers, a copartnership, entered into an agreement
with the Union known as. the Agreement Counter-
part to the Dry Wall Master Agreement which
provided, inter alia, that Burnham Brothers thereby
became a party to a collective-bargaining agreement
known as the Dry Wall Master Agreement between
the Union and Phoenix Dry Wall Contractors
Association, herein the Association, as part of a
multiemployer bargaining unit. In or about February
1970, Burnham Brothers incorporated under the
name of Burnham Brothers, Inc., and continued in
business as the alter ego of Burnham Brothers. The
Union and the Association thereafter entered into a
succession of collective-bargaining agreements, in-
cluding the current agreement which is effective from
January 1, 1974, through June 30, 1975. At no time
did Respondent give timely notice to either the
Union or the Association of its intention not to be
bound by the collective-bargaining negotiations of
said parties. Since on or about November 20, 1969,
therefore, the Union has been, and is now, the
exclusive bargaining representative of Respondent's
employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
C. The Request To Bargain and Respondent's
Refusal -
Commencing in August 1974, and continuing to
date, the Union has requested Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the unit
described above. At all times since August 1974,
Respondent has refused, and continues to refuse, to
bargain collectively in good faith with the Union as
the exclusive bargaining representative of Respon-
dent's employees by failing and refusing to recognize
and- bargain with it; by unilaterally effecting changes
in the terms and conditions of employment 'of its
employees, including the failure to make contribu-
tions to various trust funds as required by its current
collective-bargaining agreement; and by specifically
repudiating and refusing to abide by its current
agreement with the Association since on or about
September 6, 1974.
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,
intimate, 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 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 effectuate the
policies of the Act.
Having ' found that Respondent unilaterally and
unlawfully changed the terms and conditions of
employment of its employees in the appropriate unit
by its failure to abide by the current 1974-75
Association contract, we shall direct that Respondent
reinstitute and pay all such contributions due and
owing and make whole its employees for any losses
they may have incurred as a result of such changes
together with interest at ' the , rate of 6 percent per
annum and direct that Respondent abide by such
agreement hereafter.
The Board, upon the basis of-the foregoing facts
and the entire record, makes the following:
BURNHAM BROTHERS, INC. 699
CONCLUSIONS OF LAW
1. Respondent, Burnham Brothers, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Brotherhood of Painters and Allied Trades of
America, Local No. 86, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By the acts described in section III, C, above,
Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
4. 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
Relations Board hereby orders that Respondent,
Burnham Brothers, Inc., Mesa, Arizona, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with the
Brotherhood of Painters and Allied Trades of
America, Local No. 86, as the exclusive collective-
bargaining representative of its employees in the
following appropriate unit: "All journeymen and
apprentice drywall tapers and texture spraymen;
excluding all other employees, including guards,
watchmen and supervisors as defined in the Act."
(b) Repudiating and refusing to implement the
terms of the collective-bargaining agreement between
Respondent and the Phoenix Dry Wall Contractors
Association including the payment of contributions
to the various trust funds required by the 1974-75
Association agreement.
(c) 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, recognize and bargain with the
above-named labor organization as the exclusive
bargaining representative of all employees in the
aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment.
(b) Reinstitute and pay its former, discontinued
contributions to the various trust funds required by
its current collective-bargaining agreement with the
Union and make whole its employees for any losses
they may have suffered as a result of the unilateral
discontinuance of payments to various contractual
trust funds in the manner set forth in the section
herein entitled "The Remedy."
(c) Post at its office and place of business at Mesa,
Arizona, copies of the attached notice marked
"Appendix." 2 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
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 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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Broth-
erhood of Painters and Allied Trades of America,
Local No. 86, as the exclusive collective-bargain-
ing representative of all the employees in the unit
described below by failing and refusing to
recognize and bargain with it, and by unilaterally
effecting changes in the terms and conditions of
employment of our employees, including the
failure to make contributions to various trust
funds as required by our current agreement with
the Union since on or about September 6, 1974.
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.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rate of pay,
wages, hours, and other terms and conditions of
employment, and abide by the 1974-75 Associa-
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion contract . The bargaining unit is: "All
journeymen and apprentice drywall tapers and
texture spraymen ; excluding all other employees,
including guards , watchmen, and supervisors as
defined in the Act."
WE WILL reinstitute and pay all contributions
due and owing to the various trust funds required
by our collective-bargaining agreement with the
Union named above.
BuRNHAM BROTHERS,
INC.