R. & H. Cabinet & Building Co.

National Labor Relations Board - Board Decisions

May 19, 1970

182 N.L.R.B. 518 (N.L.R.B. 1970)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. E. Droese , d/b/a R . & H. Cabinet & Building Company
and Cuyahoga , Lake, Geauga and Ashtabula Counties
Carpenters ' District Council , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO. Case
8-CA-5495
corrections described below, adopts the findings of fact,
conclusions of law, and recommendations of the Trial
Examiner.2
ORDER
May 19, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On September 19, 1969 , Trial Examiner Charles W.
Schneider issued his Decision in the above -entitled pro-
ceeding in which he : ( 1) granted the General Counsel's
motion for summary judgment on the ground that
Respondent had neither filed an answer to the complaint,
nor a response to the motion for summary judgment;
(2) found , on the basis of the allegations of the complaint
which he accordingly deemed to be admitted, that
Respondent had engaged and was engaging in the unfair
labor practices alleged in the complaint ; and (3 ) recom-
mended that Respondent cease and desist from such
unfair labor practices and take certain affirmative action,
all as set forth in the attached Trial Examiner ' s Decision.
Thereafter , Respondent filed a motion to dismiss or
in the alternative , motion for a rehearing and exceptions
to Trial Examiner ' s Decision , and a supporting brief.
General Counsel and the Charging Party filed exceptions
to the Trial Examiner ' s Decision with supporting briefs,
and briefs in opposition to Respondent 's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three -member panel.
The Board having reviewed the Trial Examiner ' s Deci-
sion , the motions , exceptions, and briefs referred to
above , and the entire record in this case , hereby (1)
denies Respondent's motion to dismiss, or in the alterna-
tive, motion for rehearing;' and (2) subject to certain
i Respondent, by its motions, alternatively requests dismissal of the
complaint or resubmission of the case to the Trial Examiner, with
leave to file an answer and be provided an opportunity for a hearing
General Counsel and the Charging Party oppose these motions
Dismissal is sought solely on the asserted ground that Respondent
is engaged in an intrastate retail business, and that the complaint does
not allege nor does the record otherwise establish that Respondent's
annual gross volume of business meets the $500,000 discretionary stand-
ard normally applied by the Board for assertion of jurisdiction over
employers in a retail business Respondent represents that, in fact,
its gross volume of business for the calendar year ending January
31, 1969, was less than $350,000 00. Respondent's motion for a "rehear-
ing" sets forth no basis for reversing the Trial Examiner's findings
and conclusions other than the one stated in its motion to dismiss
This is confirmed by Respondent's exceptions to the Trial Examiner's
Decision and its supporting brief. These documents reveal that-except
for one minor particular which is conceded by the other parties to
be inaccurate, and which we correct below-Respondent does not affirma-
tively challenge the accuracy of any of the Trial Examiner's specific
findings save as they are related to its basic contentions that its operations
are retail in nature and do not meet the Board's $500,000 jurisdiction
standard for retail interprises
We reject Respondent's motions for the following reasons First,
we find that Respondent has not shown good cause for failing to
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, as herein modified, and hereby
orders that the Respondent, H. E. Droese, d/b/a R.
& H. Cabinet & Building Company, Rome, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order with the following modification.
Delete paragraph 2(a) of the Trial Examiner's recom-
mended Order, and substitute therefor:
file an answer to the complaint, even though it was on notice that
it was required to do so-a failure which was subsequently compounded
by its failure to file any response to the General Counsel's motion
for summary judgment or to the Trial Examiner's Order to Show
Cause why such summary judgment should not be granted. Respondent's
belated explanation , that it had "never used an attorney" and did
not retain one in this case until after summary judgment was granted,
does not impress us as adequate excuse Secondly , Respondent ' s conten-
tion that the Board lacks jurisidiction over its operations is without
merit Respondent does not even now affirmatively challenge the accuracy
of the facts alleged in the complaint relating to the indirect inflow
of material to Respondent's construction sites from out-of-state sources
It is thus clear that the Board has statutory jurisdiction over Respondent.
Finally, even if it be assumed that Respondent's gross volume of
business does not satisy the Board's retail industry standards, this
would not control our disposition of this case in any event, as the
Board has indicated in earlier cases that it will assert jurisdiction
over employers who, like the Respondent, are engaged in the "building
and construction industry" if either the retail or nonretail jurisdictional
standard is satisfied See, e g , Harry Tancredi, 137 NLRB 743, 745,
Hod Carriers' Local No 652, General Laborers' Union AFL-CIO (Earl
C Worley), 147 NLRB 380, 381, Charles E. Lake Construction Co ,
136 NLRB 1207.
S In their respective exceptions, each of the parties asserts that
the effective term of the collective-bargaining agreement described in
the complaint as commencing on January 1, 1969, was orally changed
to February 1, 1969 As all parties thus agree that the effective date
of the contract was February I, 1969, we shall correct the Trial Examin-
er's Decision and the Board's Order accordingly
The exceptions of the General Counsel and the Charging Party also
assert that the contract's double time pay provisions-which Respondent
unilaterally modified-are inaccurately described in all the formal docu-
ments herein as requiring double time for hours worked over 40 They
request that the record be corrected to relate Respondent's unlawful
unilateral action to the terms of the contract and that the recommended
order be revised accordingly. We grant this request since we perceive
no prejudice to the Respondent in the circumstances.
We deny, however, the further request of General Counsel and
the Charging Party that the remedial order recommended by the Trial
Examiner be expanded to provide that Respondent pay into the Cuyaho-
ga, Lake, Geauga and Ashtabula Counties Carpenters District Council
Pension Fund, its Hospitalization Fund, and the Carpenters' Joint
Apprenticeship and Training Program Trust, contributions allegedly
required by the terms of the contract. The complaint dyes not specifically
allege as an unfair labor practice Respondent's failure to make such
contributions into these funds nor was any reference thereto or to
the contract's requirements concerning them made in the General Coun-
sel's motion for summary judgment. Since Respondent was not put
on timely notice that Respondent's alleged default in this respect was
involved in the complaint and it was not afforded an opportunity for
a hearing thereon, we believe it would be a denial of procedural due
process for us at this time to expand the remedy in the manner requested
182 NLRB No. 76
R. & H. CABINET & BUILDING CO.
"(a) Make its employees whole for any loss of pay
suffered by them since February 1, 1969, as a result
of the Respondent's refusal and failure to pay double
time for hourly work in accordance with provisions
for double time hourly pay which are set forth in said
collective-bargaining agreement between Respondent and
the Union, with interest at 6 percent per annum on
any amounts due."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge of unfair labor practices filed on June
5, 1969 , by Cuyahoga , Lake, Geauga and Ashtabula
Counties Carpenters ' District Council , United Brother-
hood of Carpenters and Joiners of America , AFL-CIO,
and duly served , the General Counsel of the Board,
on July 24, 1969, by the Acting Regional Director for
Region 8 (Cleveland , Ohio), issued and duly served
a Complaint and Notice of Hearing alleging that H.
E. Droese , d/b/a R . & H. Cabinet & Building Company,
Rome , Ohio , the Respondent , had engaged in unfair
labor practices within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the National Labor
Relations Act (29 U.S.C.A. 141, et seq.).
Inter alia the complaint contained the following noti-
fication to the Respondent:
You are further notified that pursuant to Sections
102.20 and 102.21 of the Board 's Rules and Regula-
tions , the Respondent shall file with the undersigned
Acting Regional Director , acting in this matter ,as
agent of the National Labor Relations Board, and
original and four (4) copies of an answer to said
Complaint within ten ( 10) days from the service
thereof , and that unless it does so all of the allega-
tions in the Complaint shall be deemed to be admit-
ted to be true and may be so found by the Board.
Under date of August 27, 1969, Counsel for the Gener-
al Counsel filed a motion for summary judgment alleging
as ground therefor that Respondent had not filed an
answer to the complaint . In part , the motion for summary
judgment stated that:
Respondent has not filed any answer in the man-
ner required by Section 102.20 to the Complaint
and Notice of Hearing within 10 days from the
date of service thereof , nor at any time to the
present date of August 27, 1969, even though this
matter has been brought to Respondent ' s attention
by several telephone conversations with him point-
ing out that he had failed to file an answer as
required by the Board ' s Rules and Regulations.
A copy of the motion for summary judgment was
duly served on the Respondent . The record does not
disclose any response thereto by the Respondent.
On September 2, 1969 , I issued an Order to Show
Cause on motion of General Counsel for summary judg-
ment , in which the parties were directed to show cause
in writing , if cause they had, on or before September
15, 1969, as to whether or not the motion for summary
judgment should be granted . The Order further recited
519
that , "If no response disclosing material unresolved
issues litigable before and, requiring hearing by a trial
examiner is filed by September 15, 1969, the motion
for summary judgment may be granted forthwith." Cop-
ies of the Order to Show Cause were duly served
on the Respondent. No response to the Order to Show
Cause has been received from any party, including
Respondent.
The Board's rules (Rules and Regulations and State-
ments of Procedure, National Labor Relations Board,
Series 8, as amended) provide that in default of an
answer the allegations of the complaint shall be true
and shall be so found unless good cause to the contrary
is shown. Thus, Section 102.20 of the rules states,
in part, as follows:
The Respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
. . . 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.
No answer having been filed to the complaint, no
response having been filed by the Respondent to the
motion for summary judgment or to the Order to Show
Cause, and no cause to the contrary being shown, the
allegations of the complaint are deemed to be admitted
to be true, and it is so found.
Accordingly, upon the basis of the record before
me, including the complaint, I make the following fur-
ther:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
H. E. Droese , an individual , is, and has been at
all times material herein, an individual proprietor doing
business under the trade name and style of R. & H.
Cabinet & Building Company . Respondent maintains,
and has maintained at all times material herein, its
principle office and place of business in Rome, Ohio,
where it is engaged in the construction of homes . During
the calendar year 1968, Respondent , in the course and
conduct of its business operations in Rome , Ohio, pur-
chased, transferred , and delivered to it construction
jobsites materials such as lumber and other home building
materials valued in excess of $50,000 , which materials
were transported to said jobsites and received from
other enterprises , including , inter alia , Forest City Mate-
rials Co . and Laird Lumber Company located in the
State of Ohio , which other enterprises had received
the aforesaid materials directly from states other than
the State of Ohio.
Respondent is now , and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is now , and has been at all times material
herein , an employer engaged in business primarily in
the building and construction industry within the meaning
of Section 8(f) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act
The Union is a labor organization of which building
and construction employees are members within the
meaning of Section 8(f) of the Act
III THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
All employees performing carpenter work, exclud-
ing office clerical employees , and all guards , profes-
sional employees and supervisors as defined in the
Act
On August 14, 1968, Respondent and the Union execu-
ted a collective-bargaining agreement covering all of
the employees in the appropriate unit, which agreement
by its terms was effective during the period from January
1, 1969, to April 30, 1970, inclusive
At all times material herein , the collective-bargaining
agreement described above constituted an agreement
covering employees engaged in the building and construc-
tion industry within the meaning of Section 8(f) of
the Act
Since on or about January 1, 1969, and continuing
to date , Respondent , without giving prior notice to,
or consultation with, the Union, unilaterally changed
existing rates of pay , wages , or other terms and condi-
tions of employment'of the employees in the appropriate
unit so as to alter the existing rates of pay, wages,
or other terms and conditions of employment , in that
Respondent refused and failed to pay any of its employ-
ees double time for hourly work over forty hours per
week, and has, instead, paid each of them at the rate
of one and a half times their regular hourly rate for
such work
Commencing on or about April 29, 1969, and continu-
ing to date , Respondent has repudiated , and/or attempted
to rescind , the entire agreement described above, and
has at all times since that date refused to abide by
any of the terms of said agreement
By the acts described above and by each of said
acts, Respondent did interfere with , restrain , and coerce,
and is interfering with, restraining , and coercing its
employees in the exercise of their rights guaranteed
in Section 7 of the Act, and did thereby engage in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act
By the acts described above, and by each of said
acts, Respondent did refuse to bargain collectively, and
is refusing to bargain collectively , with the representative
of its employees , and did thereby engage in, and is
engaging in, unfair labor practices within the meaning
of Section 8(a)(5) of the Act
The acts of Respondent described above occurring
in connection with its operations described above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings, conclusions, and the
entire record in the case and pursuant to Section 10(c)
of the Act, I recommend that the Board issue the
following
ORDER
H E Droese , d/b/a R & H Cabinet & Building
Company, its officers , agents, assigns , and successors
shall
1 Cease and desist from
(a) Unilaterally changing existing rates of pay , wages,
hours, or other terms or conditions of employment of
employees without prior notice to or consultation with
the collective -bargaining representative of such employ-
ees
(b) Repudiating or rescinding collective-bargaining
agreements with the representative of its employees,
or refusing to abide by the terms of said agreements
(c) Refusing to bargain with the Union (Cuyahoga,
Lake, Geauga and Ashtabula Counties Carpenters' Dis-
trict Council , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO), or any other collective-
bargaining representative of its employees
(d) Interfering with , restraining, or coercing its
employees in the exercise of their right of self -organiza-
tion , to form labor organizations , join or assist the
Union , or any other labor organization , to bargain collec-
tively through representatives of their own choosing,
and to engage in concerted activities for the purpose
of collective bargaining or any other mutual aid or
protection as guaranteed in Section 7 of the Act, or
to refrain from any and all such activities , except as
authorized in Section 8(a)(3) and 8 (f) of the Act
2 Take the following affirmative action required to
effectuate the policies of the Act
(a) Make its employees whole for any loss of pay
suffered by them since January 1, 1969, as a result
of the Respondent 's refusal and failure to pay employees
double time for hourly work over 40 hours per week,
with interest at 6% per annum on any amounts due
(b) Notify the Union that it will abide by the terms
of the existing collective-bargaining agreement
(c) Preserve and, upon request, make available to
the Board or its agents for examination and copying
all payroll records and reports and other records neces-
sary to ascertain the amount of backpay due employees
(d) Upon request bargain collectively with the Union
as the exclusive representative of the employees in
the appropriate unit
R & H CABINET & BUILDING CO 521
(e) Post at its Rome , Ohio , place of business , copies
of the attached notice marked "Appendix "' Copies
of said notice , on forms provided by the Regional
Director for Region 8, shall after being signed by a
duly authorized representative of Respondent , be posted
by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after , 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
(f) Notify the Regional Director for Region 8, in
writing , within 20 days from receipt of this Decision,
what steps Respondent has taken to comply herewith 2
' In the event this recommended Order is adopted by the Board
the words A Decision and Order shall be substituted for the words
Recommended Order of a Trial Examiner in the notice In the
further event that the Board s order is enforced by a decree of the
United States Court of Appeals the words A Decree of a United
States Court of Appeals Enforcing an Order shall be substituted
for the words A Decision and Order
2 In the event these recommendations are adopted by the Board
this provision shall be modified to read Notify the Regional Director
for Region 8 in writing within 10 days from the receipt of this order
what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board we hereby
notify our employees that
WE WILL NOT change the rates of pay , wages,
or other terms and conditions of employment of
employees without first bargaining with their collec-
tive bargaining representative under the Act
WE WILL NOT repudiate or rescind collective
bargaining contracts made with the collective bar-
gaining representative of any of our employees,
or refuse to abide by such contracts
WE WILL NOT interfere with , restrain , or coerce
employees in their right to join or assist Cuyahoga,
Lake , Geauga and Ashtabula Counties Carpenters'
District Council , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO , or any other
union
WE WILL pay double time for overtime to all
employees who worked over 40 hours in any week
since January 1, 1969, provided they are covered
by our contract with the Union We will pay interest
of 6 percent on any such money due any employee
WE WILL abide by the contract with the Union
WE WILL bargain with the Union on demand
as collective bargaining representative of all employ
ees in the following appropriate unit
All employees, performing carpenter work,
excluding office clerical employees , and all
guards, professional employees and supervi-
sors as defined in the Act
Dated By
H E DROESE , D/B/A R &
H CABINET & BUILDING
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material
Any questions concerning this notice may be directed
to the Board ' s Regional Office, 1695 Federal Office Build-
ing, 1240 East Ninth Street , Cleveland , Ohio 44199,
Telephone 216-522-3715