P.P.B., Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1976

225 N.L.R.B. 815 (N.L.R.B. 1976)

P.P.B., INC . AND K.J. EQUIPMENT
P.P.B., Inc . and K .J. Equipment and Laborers' Inter-
national Union of North America, Local No. 89,
AFL-CIO. Case 21-CA-14235
August 3, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
Upon a charge filed on December 10, 1975, by
Laborers' International Union of North America,
Local No. 89, AFL-CIO, herein called the Union,
and duly served on P.P.B., Inc. and K.J. Equipment,
herein called Respondents, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 21, issued a complaint and no-
tice of hearing on March 25, 1976, against Respon-
dents, alleging that Respondents had engaged in and
were engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5), (3),
and (1) and Section 2(6) and (7) of the National La-
bor 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 com-
plaint alleges in substance that on or about June 10,
1975, Respondents changed the terms and conditions
of employment of employees in the appropriate unit
covered by the existing collective-bargaining agree-
ment, without notification to or bargaining with the
Union, by unilaterally refusing to pay premium pay
for overtime, thereby changing the wage rates of em-
ployees. The complaint further alleges that the Re-
spondents discharged two employees, Angel Lopez
and David H. Huey, because they engaged in union
or other protected concerted activities for the pur-
poses of collective bargaining or other mutual aid or
protection. Respondents failed to file a timely answer
to the complaint.
On May 10, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 21, 1976, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondents thereafter failed to file a
response to 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.
Upon the entire record in this proceeding, the
Board makes the following:
815
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 issued on
March 25, 1976, and served on Respondents by regis-
tered mail specifically states that unless an answer to
the complaint is filed within 10 days of service there-
of "all of the allegations in said complaint shall be
deemed to be admitted to be true and may be so
found by the Board." According to the uncontrovert-
ed allegations of the Motion for Summary Judgment,
on April 23, 1976, counsel for the General Counsel
notified Respondents' attorney that an answer to the
complaint was overdue, and advised that if an an-
swer was not forthcoming by April 30, 1976, a Mo-
tion for Summary Judgment would be filed. No an-
swer was filed by that date and, accordingly, counsel
for the General Counsel sought summary judgment
herein.
On May 21, 1976, the Board ordered the proceed-
ing herein transferred to the Board and gave notice
that the parties show cause on or before June 4, 1976,
why the General Counsel's Motion for Summary
Judgment should not be granted. As noted above,
Respondents have failed to file a response to the No-
tice To Show Cause.
Accordingly, under Section 102.20, set forth
above, no good cause having been shown for the fail-
ure to file a timely answer, the allegations of the
complaint are deemed admitted and are found to be
true and we shall grant the Motion for Summary
Judgment.
1. THE BUSINESS OF RESPONDENTS
Respondent P.P.B. is, and has been at all times
material herein, a corporation engaged in the busi-
ness of grading and paving, with a facility located at
225 NLRB No. 106
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4102 Genesee Avenue, San Diego, California. Until
in or about October 1975, Respondent K.J. Equip-
ment was a joint venture engaged in the business of
leasing grading and related equipment , with a facility
located at 4102 Genesee Avenue, San Diego, Califor-
nia, and thereafter became , and now is , a sole propri-
etorship, owned by Matthew Zetz, engaged in the
same business at the same location.
Until in or about October 1975, Matthew Zetz,
Ken Brigham , Joe Miller, and a person known only
to Respondent P.P.B. were the sole shareholders of
Respondent P.P.B., while Respondent K.J. was joint-
ly owned by Brigham and Miller. In or about Octo-
ber 1975, Zetz became the sole shareholder of Re-
spondent P.P.B. and the sole proprietor of
Respondent K.J.
At all times material herein , Zetz has exercised
control over the labor relations policies and manage-
ment of Respondents , and Joe Klosterman has been,
and is now , a foreman of Respondents , acting on
their behalf, and is now a supervisor within the
meaning of Section 2(11) of the Act and an agent of
Respondents within the meaning of Section 2(2) and
(13) of the Act. At all times material herein , employ-
ees of Respondent P.P.B. have performed services for
Respondent K.J., and employees of Respondent K.J.
have performed services for Respondent P.P.B. Ac-
cordinlgly , we find that at all times material herein
Respondents have been , and are now , affiliated busi-
ness enterprises having common ownership and su-
pervision, have been operating under a commonly
formulated and administered labor relations policy
affecting their employees , constitute a single integrat-
ed business enterprise , and are , and at all times mate-
rial herein have been , a single employer within the
meaning of Section 2(2) of the Act.
Respondent P.P.B., Inc . in the normal course and
conduct of its business operations, annually performs
services valued in excess of $ 50,000 for customers
located within the State of California, each of which
customers , in turn, annually derives gross revenue in
excess of $50,000 from retail sales inside the State of
California and purchases and receives goods valued
in excess of $10,000 directly from suppliers located
outside the State of California.
We find, on the basis of the foregoing, that Re-
spondents are, and have been at all times material
herein , 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.
11. THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America,
Local No. 89 , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The 8(a)(5) Violations
On or about May 7, 1975, Respondent P.P.B. en-
tered into a collective -bargaining agreement with the
Union covering an appropriate unit of employees,
comprising all employees of Respondents over whom
the Union has work jurisdiction , excluding execu-
tives , civil engineers and their helpers , superinten-
dents , assistant superintendents , master mechanics,
timekeepers , messenger boys, and office workers.
Since May 7, 1975, the Union has been the represen-
tative for the purpose of collective bargaining of a
majority of the employees in the above-described
unit and, by virtue of Section 9(a) of the Act, has
been , and now is , the exclusive representative of all
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment. On or about June 10, 1975, Respon-
dents , without prior notification to or bargaining
with the Union , changed terms and conditions of em-
ployment of the employees in the unit described
above by unilaterally changing the wage rates of em-
ployees by refusing to pay premium pay for overtime
as required by the existing collective -bargaining
agreement.
We find that, by the acts and conduct set forth
above, Respondents have refused to bargain collec-
tively in good faith, and are refusing to bargain col-
lectively in good faith, with the Union as the exclu-
sive representative of the employees in the
above-described appropriate unit, and thereby en-
gaged in , and are engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
B. The 8(a)(3) Violations
On or about August 26, 1975, Respondents dis-
charged employees Angel M. Lopez and David H.
Huey and have failed and refused, and continue to
fail and refuse , to reinstate such employees because
they engaged in union or other protected concerted
activities for the purposes of collective bargaining or
other mutual aid or protection.
We find that, by the acts and conduct set forth
above, Respondents have discriminated, and contin-
ue to discriminate , against employees in regard to
hire or tenure of employment to discourage union or
other protected concerted activities, and thereby en-
P.P.B., INC. AND K.J. EQUIPMENT 817
gaged in , and are engaging in, unfair labor practices
within the meaning of Section 8 (a)(3) of the Act.
C. The 8(a)(1) Violations
We find that by the acts and conduct set forth in
sections A and B, above, Respondents have inter-
fered with, restrained, and coerced, and are interfer-
ing with, restraining, and coercing, employees in the
exercise of rights guaranteed them under Section 7 of
the Act, and thereby engaged in, and are engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with their 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 Respondents have engaged in,
and are engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that they cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act. Effectuation of the Act's poli-
cies requires that Respondents comply with the ex-
isting collective-bargaining agreement between Re-
spondents and the Union by resuming payment of
premium pay for overtime as required therein, and
that the employees whose statutory rights were in-
vaded by reason of the unilateral refusal to pay pre-
mium pay for overtime and who suffered losses in
consequence thereof be made whole for such losses,
including interest at the rate of 6 percent per annum,
as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Having found that Respondents have engaged in,
and are engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, we
shall order that they cease and desist therefrom, and
take certain affirmative action designed to effectuate
the policies of the Act. We have found that Respon-
dents discriminatorily discharged and failed and re-
fused to reinstate employees Lopez and Huey. We
shall order that Lopez and Huey be reinstated or of-
fered reinstatement to their former positions or, if
such positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges. We shall also order that
Respondents make Lopez and Huey whole for any
loss of earnings suffered as a result of the discrimina-
tion against them. Backpay shall be based on the
earnings they normally would have received from the
date of their discharges to the date of their reinstate-
ment, or offer thereof, less any net interim earnings,
and shall be computed on the basis set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 716 (1962).
As Respondents' unfair labor practices go to the
very heart of the Act, we shall order that they cease
and desist from interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights in any other manner.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. P.P.B., Inc. and K.J. Equipment constitute a
single employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Laborers' International Union of North Ameri-
ca, Local No. 89, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the acts and conduct described in section
III, A, above, Respondents have refused to bargain
collectively in good faith, and are refusing to bargain
collectively in good faith, with the Union as the ex-
clusive representative of the employees in the above-
described appropriate unit, and thereby engaged in,
and are engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
4. By the acts and conduct described in section
III, B, above, Respondents have discriminated, and
continue to discriminate, against employees in regard
to hire or tenure of employment, or any term or con-
dition of employment, to discourage union or other
protected concerted activities, and thereby engaged
in, and are engaging in, unfair labor practices within
the meaning of the Section 8(a)(3) of the Act.
5. By the acts and conduct described in section
III, A and B, above, Respondents have interfered
with, restrained, and coerced, and are interfering
with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them under Section 7
of the Act, and thereby engaged in, and are engaging
in, unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
P.P.B., Inc. and K.J. Equipment, San Diego, Califor-
nia, their officers, agents, sucessors, and assigns,
shall:
1. Cease and desist from:
(a) Unilaterally refusing to comply with the ex-
isting collective-bargaining agreement between
P.P.B., Inc., and the Laborers' International Union
of North America, Local No. 89, AFL-CIO, by re-
fusing to pay premium pay for overtime as required
therein, or otherwise refusing to bargain collectively
with the Union as the exclusive representative of em-
ployees in the following appropriate unit:
All employees of Respondents over whom the
Union has work jurisdiction; excluding execu-
tives, civil engineers and their helpers, superin-
tendents, assistant superintendents, timekeepers,
messenger boys, and office workers.
(b) Discouraging membership in Laborers' Inter-
national Union of North America, Local No. 89,
AFL-CIO, or any other labor organization, by dis-
criminatorily discharging employees and failing and
refusing to reinstate them, or by otherwise discrimi-
nating in regard to the hire or tenure of employees or
any other term or condition of their employment.
(c) In any other manner interfering with, restrain-
ing, 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) Comply with the existing collective-bargaining
agreement between P.P.B., Inc. and the Union by
paying premium pay for overtime as required and
make whole employees for any loss of pay suffered
by reason of Respondents' unilateral refusal to pay
premium pay for overtime in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Offer to reinstate employees Angel M. Lopez
and David H. Huey to their former positions or, if
those positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of earnings they may have suffered as a re-
sult of the discrimination against them in the manner
set forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amounts of
backpay due under the terms of this Order.
(d) Post at its San Diego, California, facility cop-
ies of the attached notice marked "Appendix." I Cop-
ies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondents' representative, shall be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondents to in-
sure that said notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
1 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 unilaterally refuse to comply
with the existing collective-bargaining agree-
ment between P.P.B., Inc., and the Laborers' In-
ternational Union of North America, Local No.
89, AFL-CIO, by refusing to pay premium pay
for overtime as required therein, or otherwise re-
fusing to bargain collectively with the Union as
the exclusive representative of our employees in
the following appropriate unit:
All employees of P.P.B., Inc., and K.J. Equip-
ment over whom the Union has work jurisdic-
tion; excluding executives, civil engineers and
their helpers, superintendents, assistant super-
intendents, timekeepers, messenger boys, and
office workers.
WE WILL NOT discourage membership in La-
borers' International Union of North America,
Local No. 89, AFL-CIO, or any other labor or-
ganization, by discriminatorily discharging em-
ployees and failing and refusing to reinstate
them, or by otherwise discriminating in regard
to the hire or tenure of employees or any term or
condition of their employment.
P.P.B., INC. AND K .J. EQUIPMENT 819
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of the rights guaranteed them in Siction 7 of
the Act.
WE WILL comply with the existing collective-
bargaining agreement between P . P.B., Inc., and
the Union by paying premium pay for overtime
as required therein , and WE WILL make whole
employees for any loss of pay suffered by reason
of our unilateral refusal to pay premium pay for
overtime.
WE WILL offer to reinstate employees Angel
M. Lopez and David H . Huey to their former
positions or, if those positions no longer exist, to
substantially equivalent positions , without preju-
dice to their seniority or other rights and privi-
leges, and WE WILL make them whole for any loss
of earnings they may have suffered as a result of
the discrimination against them.
P.P.B., INC. AND K.J. EQUIPMENT