Mid-Atlantic Painting Contractors

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 193 (N.L.R.B. 1994)

193
315 NLRB No. 26
MID-ATLANTIC PAINTING CONTRACTORS
1 Although it appears that no further reminder letter was sent to
Respondent IPC, this does not warrant denying the General Coun-
sel’s Motion for Summary Judgment. See, e.g., Superior Industries,
289 NLRB 834, 835 fn. 13 (1988).
2 See Maislin Transport, 274 NLRB 529 (1985).
3 See, e.g., Ambulance Services of New Bedford, 229 NLRB 106,
110 (1977); and Armitage Sand & Gravel, 203 NLRB 162, 166
(1973). See also Cornerstone Builders, 309 NLRB 407 (1992).
Mid-Atlantic Painting Contractors, Inc. and Indus-
trial Painting Contractors, Inc. and Inter-
national Brotherhood of Painters and Allied
Trades, District Council No. 51, AFL–CIO–
CFL. Cases 5–CA–23868 and 5–CA–24044
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Upon charges and amended charges filed on August
31, October 21, and November 15, 1993, by Inter-
national Brotherhood of Painters and Allied Trades,
District Council No. 51, AFL–CIO–CFL, the Union,
the General Counsel of the National Labor Relations
Board issued an order consolidating cases and consoli-
dated complaint on December 30, 1993, against Mid-
Atlantic Painting Contractors, Inc. (MAPC) and Indus-
trial Painting Contractors, Inc. (IPC), the Respondents,
alleging that they have violated Section 8(a)(1) and (5)
of the National Labor Relations Act. Although prop-
erly served copies of the charges and consolidated
complaint, Respondent IPC failed to file an answer.
Although Respondent MAPC filed an answer to the
consolidated complaint on January 4, 1994, by letter
dated June 30, 1994, it withdrew its answer.
On September 6, 1994, the General Counsel filed a
Motion for Summary Judgment with the Board. On
September 8, 1994, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On Sep-
tember 23, 1994, the Respondents filed a response con-
tending that the cases were moot since the companies
had ceased operations and had no assets.
The National Labor Relations Board has delegated
its authority in this proceeding 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 consolidated complaint will be considered admit-
ted. Nevertheless, Respondent IPC failed to file an an-
swer.1 Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that, although Re-
spondent MAPC initially filed an answer, it subse-
quently withdrew that answer. Such a withdrawal has
the same effect as a failure to file an answer, i.e., the
allegations in the consolidated complaint must be con-
sidered to be admitted to be true.2 Finally, although
the Respondents in their response to the notice to show
cause have contended that the matter is moot, it is well
established that the discontinuance of a respondent’s
business or its inability to comply with a Board order
does not moot the respondent’s alleged unfair labor
practices.3
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent MAPC and Re-
spondent IPC, Maryland corporations, with offices and
places of business in Baltimore, Maryland (MAPC’s
and IPC’s facility), have been engaged in the business
of providing painting services. During the 12-month
period preceding issuance of the consolidated com-
plaint, Respondent MAPC and Respondent IPC, in
conducting their business operations, each performed
services valued in excess of $50,000 in States other
than the State of Maryland.
At all material times Respondent MAPC and Re-
spondent IPC have been affiliated business enterprises,
with common officers, owners, directors, managers and
supervisors; having the same business purpose and op-
erations; serving the same general contractors and cus-
tomers; sharing common premises, facilities, and
equipment; transferring work between each other; and
interchanging and sharing employees.
On a date unknown, Respondent IPC was estab-
lished by Respondent MAPC, as a subordinate instru-
ment to and a disguised continuance of Respondent
MAPC.
Based on the conduct described above, Respondent
MAPC and Respondent IPC are, and have been at all
material times, alter egos and a single employer within
the meaning of the Act.
The complaint alleges and we find that Respondent
MAPC and Respondent IPC have been building and
construction industry employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and that District Council 51, International Broth-
erhood of Painters and Allied Trades, District Council
No. 23 (District Council 23), International Brotherhood
of Painters and Allied Trades, Local 100 (Local 100),
and International Brotherhood of Painters and Allied
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trades, Local 1100 (Local 1100), are now, and have
been at all material times, labor organizations within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
All employees of the Respondents covered by the
collective-bargaining agreements described below (the
unit), constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
On or about April 1, 1992, Respondent MAPC, an
employer engaged in the building and construction in-
dustry, recognized District Council 23 as the limited
exclusive collective-bargaining representative of the
unit for work performed within District Council 23’s
geographic jurisdiction, by entering into a collective-
bargaining agreement with District Council 23 for the
period of April 1, 1992, to March 31, 1995, without
regard to whether the majority status of District Coun-
cil 23 has ever been established under the provisions
of Section 9(a) of the Act.
The collective-bargaining agreement described above
contains a clause binding Respondent MAPC to the
collective-bargaining agreements in effect in geo-
graphic jurisdictions outside District Council No. 23’s
geographic jurisdiction and executed by the employers
of the industry and the local unions affiliated with the
International Brotherhood of Painters and Allied
Trades, AFL–CIO–CFL, in that jurisdiction.
By operation of the above contract clause, Respond-
ent MAPC was obligated to recognize District Council
51, Local 100, and Local 1100 as limited exclusive
collective-bargaining representatives for employees
performing unit work in the respective geographic ju-
risdictions of District Council 51, Local 100, and Local
1100, without regard to the majority status of those
labor organizations, and to comply with the terms of
the collective-bargaining agreements then in effect be-
tween those respective labor organizations and painting
industry employers in those geographic jurisdictions.
On about August 19, 1992, Respondent MAPC, an
employer engaged in the building and construction in-
dustry, recognized District Council 51 as the limited
exclusive collective-bargaining representative of the
unit performing work within District Council 51’s geo-
graphic jurisdiction, by entering into a Memorandum
of Understanding binding it to a collective-bargaining
agreement with District Council 51 for the period of
May 16, 1992, to May 15, 1995, without regard to
whether the majority status of District Council 51 had
ever been established under the provisions of Section
9 of the Act.
For the terms of their respective collective-bargain-
ing agreements, based on Section 9(a) of the Act, Dis-
trict Council 23, District Council 51, Local 100 and
Local 1100 have been and are the limited exclusive
collective-bargaining representatives of the unit, for
unit work performed within their respective geographic
jurisdictions.
Since around autumn 1992, Respondent MAPC has
been using Respondent IPC for the purpose of evading
obligations under the collective-bargaining agreements
described above, by transferring unit work from Re-
spondent MAPC to Respondent IPC, on jobs including,
but not limited to, those at the following times and lo-
cations:
(a) Around autumn 1992, at I-66 in Northern Vir-
ginia.
(b) Around autumn 1992, at the Susquehanna River
toll plaza and bridge.
(c) Around late 1992, at Riva Road near Annapolis,
Maryland.
(d) Around early spring 1993, at Route 210 in
Southern Maryland.
(e) Around May to June 1993, at Pennsylvania Ave-
nue in Southeast Washington, D.C.
(f) Around May to June 1993, at Route 29 near Co-
lumbia, Maryland.
(g) Around late spring 1993, at Powell Creek in
Northern Virginia.
(h) Around September 1993, at the 11th Street
bridge in Wilmington, Delaware.
(i) Around October 1993, at Virginia Beach Boule-
vard in Norfolk, Virginia.
Since about July 21, 1993, and again about August
11, 1993, District Council 51, by letters, has requested
that Respondent MAPC furnish District Council 51
with the information regarding the respective oper-
ations of Respondents and the relationship between
them.
The information requested by District Council 51 is
necessary for, and relevant to, District Council 51’s
performance of its duties as the limited exclusive col-
lective-bargaining representative of the unit performing
unit work within its geographic jurisdiction.
Since about August 25, 1993, Respondent MAPC
has failed and refused to furnish District Council 51
with the information requested by it.
CONCLUSIONS OF LAW
1. The Respondents MAPC and IPC are alter egos
and a single employer within the meaning of the Act.
2. By transferring unit work from Respondent
MAPC to Respondent IPC for the purpose of evading
obligations under the collective-bargaining agreements
described above, the Respondents have been failing
and refusing to bargain with the limited exclusive bar-
gaining representatives of their employees within the
meaning of Section 8(d) and in violation of Section
8(a)(1) and (5) of the Act.
3. By failing and refusing to furnish District Council
51 with requested information regarding the respective
195MID-ATLANTIC PAINTING CONTRACTORS
4 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of the proceeding for the addition of interest at a fixed rate
on unlawfully withheld fund payments. Therefore, any additional
amount owed with respect to fringe benefit and pension funds shall
be determined in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).
5 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.’’
operations of Respondents and the relationship be-
tween them that is necessary and relevant to the per-
formance of the Union’s duties as the limited exclusive
collective-bargaining representative of the unit employ-
ees, Respondent MAPC has been failing and refusing
to bargain with the limited exclusive bargaining rep-
resentative of its employees within the meaning of
Section 8(d) and in violation of Section 8(a)(1) and (5)
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.
We shall order the Respondents to make whole unit
employees for any losses suffered by them because of
the transfer of work from Respondent MAPC to its
alter ego, Respondent IPC, as set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), and Kraft Plumbing & Heating,
252 NLRB 891 (1980), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).4
We shall also order the Respondents to furnish Dis-
trict Council 51 with the necessary and relevant infor-
mation it requested on July 21 and August 11, 1993.
Finally, as the Respondents have indicated that they
have ceased operations, we shall order them to mail
copies of the notice to all unit employees who were
employed by them at the facility at the time their oper-
ations ceased.
ORDER
The National Labor Relations Board orders that the
Respondents, Mid-Atlantic Painting Contractors, Inc.
and Industrial Painting Contractors, Inc., Baltimore,
Maryland, alter egos and a single employer, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with International
Brotherhood of Painters and Allied Trades, District
Council No. 51, AFL–CIO–CFL, International Brother-
hood of Painters and Allied Trades, District Council
No. 23, International Brotherhood of Painters and Al-
lied Trades, Local 100, and International Brotherhood
of Painters and Allied Trades, Local 1100, as the lim-
ited exclusive collective-bargaining representatives of
the unit employees, by transferring unit work in order
to avoid their obligations under their collective-bar-
gaining agreements.
(b) Failing and refusing to furnish District Council
51 with information that is necessary and relevant to
the performance of its duties as the limited exclusive
collective-bargaining representative of the unit employ-
ees.
(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) Make whole the unit employees for any losses
they may have suffered as a result of the Respondents’
unlawful transfer or work, with interest, as set forth in
the remedy section of this decision.
(b) On request, furnish District Council 51 with in-
formation that is necessary and relevant to the per-
formance of its duties as the limited exclusive bargain-
ing representative of the unit employees.
(c) 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.
(d) Mail signed and dated copies of the attached no-
tice marked ‘‘Appendix’’5 to all unit employees em-
ployed by Respondents at their facility in Baltimore,
Maryland, at the time they ceased operations, at the
employees’ last known address. Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondents’ authorized
representative, shall be mailed by the Respondents im-
mediately upon receipt.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have 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.
WE WILL NOT fail and refuse to bargain with Inter-
national Brotherhood of Painters and Allied Trades,
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
District Council No. 51, AFL–CIO–CFL, International
Brotherhood of Painters and Allied Trades, District
Council No. 23, International Brotherhood of Painters
and Allied Trades, Local 100, and International Broth-
erhood of Painters and Allied Trades, Local 1100, as
the limited exclusive collective-bargaining representa-
tives of our unit employees, by transferring unit work
in order to evade our obligations under our collective-
bargaining agreements.
WE WILL NOT fail and refuse to furnish District
Council 51 with information that is necessary and rel-
evant to the performance of its duties as the limited
exclusive collective-bargaining representative of the
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 make whole unit employees for any losses
they may have suffered as a result of our unlawful
transfer of unit work, with interest.
WE WILL, on request, furnish District Council 51
with information that is relevant and necessary to the
performance of its duties as the limited exclusive bar-
gaining representative of the unit employees.
MID-ATLANTIC PAINTING CONTRAC-
TORS, INC. AND INDUSTRIAL PAINTING
CONTRACTORS, INC.