J & W Drywall Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 517 (N.L.R.B. 1992)

517
308 NLRB No. 74
J & W DRYWALL CO.
J & W Drywall, Lather & Plastering Co., Inc.; J &
W Drywall Contractors, Inc.; J & W Drywall
Plastering Co., Inc.; and Willie Williams and
Painters District Council No. 22, International
Brotherhood of Painters and Allied Trades,
AFL–CIO–CLC. Case 7–CA–32705
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on December 18,
1991, the General Counsel of the National Labor Rela-
tions Board issued a complaint, compliance specifica-
tion, order consolidating complaint and compliance
specification, and notice of consolidated hearing on
February 13, 1992, against J & W Drywall, Lather &
Plastering Co., Inc., J & W Drywall Contractors, Inc.,
J & W Drywall Plastering Co., Inc., and Willie Wil-
liams, the Respondents, alleging that they have vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act. The Respondents failed to file a timely an-
swer.
On April 24, 1992, the General Counsel filed a Mo-
tion to Transfer Case to the Board and for Default
Summary Judgment, with exhibits attached. On April
29, 1992, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. Thereafter, the
Respondents filed an answer to the General Counsel’s
motion and requested the Board to accept an attached
answer to the complaint and compliance specification.
The Respondents also filed a response to the Notice to
Show Cause. The General Counsel filed a reply to the
Respondents’ answer to the General Counsel’s motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14
days from service of the complaint, unless good cause
is shown. Section 102.56 of the Board’s Rules and
Regulations provides that if an answer is not filed
within 21 days from the service of the compliance
specification the Board may find the specification to
be true. The consolidated complaint and compliance
specification states that unless an answer is filed with-
in 21 days of service, ‘‘all of the allegations in the
Complaint and Compliance Specification shall be
deemed to be admitted true and may be so found by
the Board.’’ Further, the General Counsel alleges in
support of the Motion for Default Summary Judgment
that the acting Regional attorney, by letter dated March
11, 1992, notified the Respondents that unless an an-
swer was received by March 25, 1992, a Motion for
Default Judgment would be filed.
The Respondents deny receiving copies of the
charge and consolidated complaint and compliance
specification, or warning letter from the acting Re-
gional attorney until they received through the regular
mail the Motion for Default Summary Judgment, with
attached copies of those earlier documents. They fur-
ther deny refusing to accept certified mail of the
charge and the consolidated complaint and compliance
specification. They claim that their office was closed
for Christmas when they allegedly refused to accept
service of the charge by certified mail and that their
secretary was on jury duty when they allegedly refused
to accept service of the consolidated complaint and
compliance specification by certified mail. The Re-
spondents contend that ‘‘a certified letter is in practice
the method least likely to give actual notice to some-
one and that if the General Counsel really wants Re-
spondent to receive something they should also accom-
pany it with a first class mailing that will actually be
received.’’
Contrary to the Respondents’ contention, Section
102.113 of the Board’s Rules and Regulations specifies
that charges, complaints, ‘‘and other process and pa-
pers of the Board’’ may be served by certified mail
and that a return post office receipt shall be proof of
service by this method. The General Counsel’s Motion
for Default Judgment and his reply to the Respondents’
answer to the motion collectively allege that the Re-
spondents refused service by properly addressed cer-
tified mail of the charge on December 19, 1991, of the
consolidated complaint and compliance specification
on February 14, 1992, of the acting Regional attor-
ney’s warning letter on March 12, 1992, and of the
Motion for Default Judgment on April 23 and May 1,
1992. In support of this allegation, the General Coun-
sel has submitted affidavits of service and copies of
the certified mail envelope for each legal document.
All envelopes bear Postal Service marks indicating that
the addressee ‘‘refused’’ to accept them.
It is well established that a refusal to accept certified
mailing of legal process cannot serve to defeat the pur-
poses of the Act. E.g., Fletcher Oil Co., 299 NLRB
No. 77, slip op. at 2 fn. 1 (Aug. 23, 1990) (not re-
ported in Board volumes). The General Counsel has
submitted sufficient prima facie proof of the allegation
that the Respondents refused to accept service by cer-
tified mail of the charge and the consolidated com-
plaint and compliance specification, and the warning
letter. The Respondents’ bare denial of these allega-
tions fails to rebut the prima facie proof or to create
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We note that the respondents refused to accept service of legal
process by certified mail in J & W Drywall Contractors, 306 NLRB
No. 94 (Feb. 28, 1992) (not reported in Board volumes).
an issue of fact warranting a hearing.1 Furthermore, the
General Counsel alleges, with supporting documentary
proof, that the consolidated complaint and compliance
specification and the acting Regional attorney’s warn-
ing letter were also sent by regular mail, the mode of
service which the Respondents admit is reliable and by
which the Respondents admit receiving the Motion for
Default Summary Judgment. The failure of the Postal
Service to return documents served by regular mail in-
dicates actual receipt of those documents by the Re-
spondents. Lite Flight, Inc., 285 NLRB 649, 650
(1987). We therefore find that the Respondents were
properly served copies of the charge and the consoli-
dated complaint and compliance specification, and the
warning letter.
In the absence of good cause being shown for the
failure to file a timely answer, we deny the Respond-
ents’ request to file a belated answer and we grant the
General Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents, Michigan corporations, are en-
gaged in the construction industry as drywall installa-
tion, plastering, and lathing contractors with an office
and place of business in Detroit, Michigan. At all
times material, the Respondents have been affiliated
business enterprises with common officers, ownership,
directors, management, and supervision; have formu-
lated and administered a common labor policy; have
shared common premises and facilities; have provided
services for and made sales to each other; have inter-
changed personnel with each other; and have held
themselves out to the public and to their customers as
a single-integrated business enterprise. The complaint
alleges, and we find, that the Respondents are, and at
all material times have been, a single employer within
the meaning of the Act.
During the year ending December 31, 1991, the Re-
spondents purchased and caused to be transported and
delivered at their place of business and/or jobsites lo-
cated in the State of Michigan goods valued in excess
of $50,000 from other enterprises, including Dale En-
terprises, Inc., located within the State of Michigan,
each of which other enterprises had received these
goods directly from points outside the State of Michi-
gan.
We find that the Respondents are a single employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union, Painters
District Council No. 22, International Brotherhood of
Painters and Allied Trades, AFL–CIO–CLC, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondents con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All journeymen, apprentices and foremen em-
ployed to do drywall, painting, paperhanging and
decorating within the geographic jurisdiction of
Painters District Council No. 22, but excluding
guards and supervisors as defined in the Act.
At all times since January 2, 1989, the Union has been
and is the exclusive collective-bargaining representa-
tive of the Respondents’ unit employees within the
meaning of Section 9(a) of the Act.
On or about January 2, 1989, the Respondents and
the Union executed a collective-bargaining agreement
which was to remain in effect until May 31, 1989, and,
unless properly terminated, was automatically renewed
from year to year thereafter. Since about September
1991, the Respondents have failed to adhere to the
terms of the collective-bargaining agreement by failing
to make various monthly fringe benefit contributions
and by refusing to submit to an audit. The Respond-
ents engaged in this conduct without the Union’s con-
sent and without providing timely notice of a desire to
terminate or modify the contract.
In addition, since about November 15, 1991, the Re-
spondents have failed and refused to comply with the
request of the Painters Insurance, Pension, and Vaca-
tion Funds, acting at the behest of and as an agent of
the Union, for payroll records for the period from Oc-
tober 1, 1990, to September 30, 1991. This information
is necessary for, and relevant to, the Union’s perform-
ance of its duties as the exclusive collective-bargaining
representative of the unit employees.
We find that the Respondents violated Section
8(a)(5) and (1) of the Act by failing to abide by the
terms of a current collective-bargaining agreement and
by refusing to provide information requested by the
Union. We further find that the amounts owed by the
Respondents for their unlawful failure to make fringe
benefit fund payments are as stated in the compliance
specification, and we shall order the Respondents to
pay those amounts.
CONCLUSION OF LAW
By failing to abide by the terms of a current collec-
tive-bargaining agreement with the Union requiring the
Respondents to make monthly periodic contributions to
fringe benefit funds and to submit to an audit, and by
failing to provide the Union or the funds, acting as the
519J & W DRYWALL CO.
2 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.’’
Union’s agent, with relevant requested bargaining in-
formation, the Respondents have 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 Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. In par-
ticular, we shall order the Respondents to abide by the
terms of the January 2, 1989 collective-bargaining
agreement, including the contractual provisions for
fringe benefit fund contributions and audits. Further,
we shall order the Respondents to submit payroll
records to the Painters Insurance, Pension, and Vaca-
tion Funds payroll records for the period from October
1, 1990, to September 30, 1991. Finally, in accord
with the terms of the compliance specification, we
shall order the Respondents to make contractual fringe
benefit fund payments in the amount of $26,429.12,
plus any monthly amounts accruing after January 1992
at a rate of $4,211.56 per month plus interest until the
Respondent fully complies with its benefit fund con-
tribution obligations.
ORDER
The National Labor Relations Board orders that the
Respondents, J & W Drywall, Lather & Plastering Co.,
Inc., J & W Drywall Contractors, Inc., J & W Drywall
Plastering Co., Inc., and Willie Williams, Detroit,
Michigan, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Painters District Coun-
cil No. 22, International Brotherhood of Painters and
Allied Trades, AFL–CIO–CLC as the exclusive rep-
resentative of employees in the unit described below,
by failing to adhere to the terms, including those re-
garding fringe benefit fund payments and audits, of a
collective-bargaining agreement, effective from January
2, 1989, until May 31, 1989, and renewed annually
thereafter, absent proper notice of termination. The unit
is:
All journeymen, apprentices and foremen em-
ployed to do drywall, painting, paperhanging and
decorating within the geographic jurisdiction of
Painters District Council No. 22, but excluding
guards and supervisors as defined in the Act.
(b) Refusing to provide the Union or the Painters In-
surance, Pension, and Vacation Funds, when acting as
the Union’s agent, with requested information that is
relevant to the Union’s duties as exclusive collective-
bargaining representative of unit employees.
(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) Abide by the terms of the current collective-bar-
gaining agreement with the Union, including provi-
sions for monthly fringe benefit fund payments and for
submitting to an audit.
(b) Make the contractual benefit funds whole, in the
manner set forth in the remedy section of this decision,
by reimbursing them for losses resulting from the un-
lawful failure to make contractually required benefit
fund payments.
(c) Provide the Union with the payroll information
which the Painters Insurance, Pension, and Vacation
Funds, acting as the Union’s agent, requested on and
after November 15, 1991.
(d) 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.
(e) Post at its facility in Detroit, Michigan, and at
jobsites where unit employees are working, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 7, 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.
(f) 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with
Painters District Council No. 22, International Brother-
hood of Painters and Allied Trades, AFL–CIO–CLC as
the exclusive bargaining representative of our employ-
ees in the unit described below, by failing to adhere
to the terms, including those regarding fringe benefit
fund payments and audits, of a collective-bargaining
agreement with the Union. The unit is:
All journeymen, apprentices and foremen em-
ployed to do drywall, painting, paperhanging and
decorating within the geographic jurisdiction of
Painters District Council No. 22, but excluding
guards and supervisors as defined in the Act.
WE WILL NOT refuse to provide the Union or the
Painters Insurance, Pension, and Vacation Funds, when
acting as the Union’s agent, with requested information
that is relevant to the Union’s duties as exclusive col-
lective-bargaining representative of unit employees.
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 abide by the terms of our current collec-
tive-bargaining agreement with the Union, including
provisions requiring us to make monthly contributions
to various employee fringe benefit funds and to submit
to an audit.
WE WILL make the benefit funds whole for our fail-
ure to make timely contributions by paying them the
amounts specified by the National Labor Relations
Board, with interest.
WE WILL provide the Union with payroll records
which it requested on and after November 15, 1991.
J & W DRYWALL, LATHER & PLASTER-
ING CO., INC., J & W DRYWALL CON-
TRACTORS, INC., J & W DRYWALL
PLASTERING CO., INC., AND WILLIE
WILLIAMS