Anthony's Painting, LLC

National Labor Relations Board - Board Decisions

Aug 25, 2011

357 NLRB No. 62 (N.L.R.B. 2011)

357 NLRB No. 62
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Anthony’s Painting, LLC and Painters District Coun-
cil No. 2. Case 14–CA–30082
August 25, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent withdrew
its answer to the complaint and did not file an answer to
the amended complaint. Upon a charge filed by the Un-
ion on April 14, 2010, and subsequently amended on
April 15 and June 25, 2010, the Acting General Counsel,
issued the complaint and amended complaint1 on August
30, 2010, and March 10, 2011, respectively, against An-
thony’s Painting, LLC, the Respondent, alleging that it
has violated Section 8(a)(5) and (1) of the Act. On Sep-
tember 28, 2010, the Respondent filed an answer to the
complaint. However, by letter dated February 24, 2011,
the Respondent withdrew its answer and by email mes-
sage dated March 24, 2011, the Respondent notified the
Acting General Counsel that the Respondent would not
file an answer to the amended complaint.
On March 30, 2011, the Acting General Counsel filed
a Motion for Default Judgment with the Board. Thereaf-
ter, on March 31, 2011, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On May 9,
2011, the Board issued a revised order transferring pro-
ceedings to the Board and a Notice to Show Cause why
the motion should not be granted. On July 21, 2011, a
second revised Notice to Show Cause was served on the
Respondent by certified mail. The Respondent filed no
response to the Notices to Show Cause. The allegations
in the motion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint and the amended com-
plaint affirmatively stated that unless an answer was re-

1 The Regional Director issued an amendment to the complaint to
correct a typographical error in subparagraph 6D of the complaint.
ceived by September 13, 2010, and March 24, 2011, re-
spectively, the Board may find, pursuant to a motion for
default judgment, that the allegations in the complaint
are true. Although the Respondent filed an answer to the
complaint on September 28, 2010, it subsequently with-
drew its answer. The Respondent did not file an answer
to the amendment to the complaint. The withdrawal of
an answer has the same effect as the failure to file an
answer, i.e. the allegations in the complaint and the
amended complaint must be considered to be true.2 Ac-
cordingly, we grant the Acting General Counsel’s Mo-
tion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Missouri lim-
ited liability company with an office and place of busi-
ness in St. Louis, Missouri, has been engaged in the con-
struction industry as a commercial and residential paint-
ing contractor. During the calendar year ending Decem-
ber 31, 2009, the Respondent, in conducting its business
operations described above, performed services valued in
excess of $50,000 in states other than the State of Mis-
souri.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union, Painters District Coun-
cil No. 2, is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Anthony Dattilo - Vice President
Heather Dattilo - President
At all material times, Patricia Hoffman has held the
position of the Respondent’s office manager and has
been an agent of the Respondent within the meaning of
Section 2(13) of the Act.
The following employees of the Respondent, the unit,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

2 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All journeymen painters, tapers and drywall finishers,
paper and wall covering hangers, apprentices, pre-
apprentices, summer help and working foreman em-
ployed by the Employer.
The Respondent, an employer engaged in the building
and construction industry, as described above, has recog-
nized the Union as the exclusive collective-bargaining
representative of the unit without regard to whether the
majority status of the Union had ever been established
under the provisions of Section 9(a) of the Act. Such
recognition has been embodied in a collective-bargaining
agreement, which the Respondent signed on November
30, 2005, and which was effective through August 31,
2010 (the 2005–2010 agreement). For the period from
November 30, 2005, through August 31, 2010, based on
Section 9(a) of the Act, the Union has been the limited
exclusive collective-bargaining representative of the
unit.3
Sometime after November 30, 2005, the exact date be-
ing within the knowledge of the Respondent, the Re-
spondent failed to continue in effect all the terms and
conditions of the 2005–2010 agreement by failing to pay
unit employees for their overtime work at the wage rates
required by Sections 17 and 18 of the collective-
bargaining agreement, and instead, the Respondent cred-
ited employees with “banked hours” for such overtime
work.
Since about October 14, 2009, the Respondent failed
to continue in effect all the terms and conditions of the
2005–2010 agreement by:
(i) delaying and/or failing to remit dues as required;
(ii) delaying and/or failing to remit money to the Un-
ion’s vacation fund;
(iii) failing to maintain a surety-bond; and
(iv) delaying and/or failing to make the following re-
quired fringe benefit contributions: (1) Painters District
Council No. 2 Welfare Plan; (2) Painters District
Council No. 2 Pension Plan; (3) Painters District Coun-
cil No. 2 Apprenticeship and Journeyman Training
Fund; and (4) Labor Management Cooperation Fund.

3 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) of the
Act and that the Union is therefore the limited 9(a) representative of the
unit employees for the period covered by the contract. See, e.g., A.S.B.
Cloture, Ltd., 313 NLRB 1012 fn. 2 (1994), citing Electri-Tech, Inc.,
306 NLRB 707 fn. 2 (1992), and John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F. 2d
770 (3d Cir. 1988).
Since about November 14, 2009, the Respondent ef-
fectively repudiated the 2005–2010 agreement by failing
to continue in effect the terms of that agreement includ-
ing, but not limited to:
(i) refusing to remit contribution reports to the Union;
(ii) cancelling a scheduled audit and refusing to re-
schedule an audit;
(iii) refusing to adhere to the union security clause;
(iv) refusing to withhold and/or remit dues;
(v) refusing to withhold and/or remit money to the Un-
ion’s vacation fund;
(vi) refusing to maintain a surety-bond;
(vii) refusing to make the following required fringe
benefit contributions: (1) Painters District Council No.
2 Welfare Plan; (2) Painters District Council No. 2
Pension Plan; (3) Painters District Council No. 2 Ap-
prenticeship and Journeyman Training Fund; and (4)
Labor Management Cooperation Fund; and
(viii) refusing to pay employees at the contractual wage
rates.
The Respondent engaged in the conduct described
above without the Union’s consent. The terms and con-
ditions of employment described above are mandatory
subjects for the purposes of collective bargaining.
On about December 1, 2009, the Respondent, by letter,
withdrew its recognition of the Union as the exclusive
collective-bargaining representative of the unit and stated
it was no longer signatory to the 2005–2010 agreement.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act in violation of Sec-
tion 8(a)(5) and (1) of the Act and affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by withdrawing recognition from the Union and
by failing to continue in effect and repudiating the
2005–2010 collective-bargaining agreement by, among
other things, failing to (1) pay unit employees for their
overtime work at the wage rates required by sections 17
ANTHONY’S PAINTING 3
and 18 of the collective-bargaining agreement; (2) delay-
ing and/or failing to withhold and/or remit dues as re-
quired; (3) delaying and/or failing to remit money to the
Union’s vacation fund; (4) failing to maintain a surety
bond; (5) refusing to remit contribution reports to the
Union; (6) cancelling a scheduled audit and refusing to
reschedule an audit; (7) refusing to adhere to the union-
security clause; (8) refusing to make required fringe
benefit contributions to the Union’s welfare plan, pen-
sion plan, apprenticeship and journeyman training fund,
and labor management cooperation fund; and (9) refus-
ing to pay employees at the contractual wage rates, we
shall order the Respondent to recognize the Union as the
limited exclusive bargaining representative of the unit
and to apply the terms and conditions of the 2005–2010
agreement during the term of that agreement. We shall
also order the Respondent to make whole the unit em-
ployees for any loss of earnings and other benefits they
may have suffered as a result of the Respondent’s failure
to continue in effect all the terms and conditions of the
agreement in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), and Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
In addition, we shall order the Respondent to make all
contractually required benefit fund contributions that
have not been made since October 14, 2009, including
any additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 6
(1979). The Respondent shall also reimburse unit em-
ployees for any expenses ensuing from its failure to
make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981).4 All payments to the
unit employees shall be computed in accordance with
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra, and
Kentucky River Medical Center, supra.
Finally, to remedy the Respondent’s refusal, since Oc-
tober 14, 2009, to remit dues to the Union, we shall order
the Respondent to remit all dues collected since October
14, 2009, and not previously submitted to the Union,
during the 2005–2010 collective-bargaining agreement.
To remedy the failure to withhold and/or remit to the
union dues beginning on November 14, 2009, we shall

4 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such delinquency
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
order Respondent to withhold and remit to the union
dues which should have been, but were not, deducted
from employee paychecks since November 14, 2009,
pursuant to valid dues-checkoff authorizations, with in-
terest as prescribed in New Horizons for the Retarded,
supra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Anthony’s Painting, LLC, St. Louis, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in
good faith with the Painters District Council No. 2, as the
limited exclusive collective-bargaining representative of
its unit employees during the term of the 2005–2010
agreement. The unit is:
All journeymen painters, tapers and drywall finishers,
paper and wall covering hangers, apprentices, pre-
apprentices, summer help and working foreman em-
ployed by the Employer.
(b) Repudiating and failing to continue in effect all the
terms and conditions of the 2005–2010 collective-
bargaining agreement with the Union during the term of
the contract.
(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) Recognize and bargain in good faith with Painters
District Council No. 2 as the limited exclusive collective-
bargaining representative of the unit employees and
honor and comply with the terms and conditions of the
2005–2010 collective-bargaining agreement during the
term of the agreement.
(b) Make whole the unit employees for any loss of
earnings or other benefits they may have suffered as a
result of its failure to comply with the provisions of the
2005–2010 agreement, with interest, in the manner set
forth in the remedy section of this decision.
(c) Pay unit employees for their overtime work at the
wage rates required by section 17 and 18 of the 2005–
2010 agreement.
(d) Make all contractually-required benefit fund con-
tributions that have not been made since October 14,
2009, and reimburse unit employees for any expenses
ensuing from its failure to make the required payments,
with interest, as set forth in the remedy section of this
decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(e) Remit dues that have not been remitted since Oc-
tober 14, 2009, and deduct and remit union dues pursuant
to valid dues-checkoff authorizations that have not been
deducted since November 14, 2009, with interest, in the
manner set forth in the remedy section of this decision.
(f) Maintain a surety bond.
(g) Remit contribution reports to the Union.
(h) Adhere to the union-security clause.
(i) Withhold and remit money to the Union’s vacation
fund.
(j) Schedule audits.
(k) Pay employees at contractual wage rates.
(l) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(m) Within 14 days after service by the Region, post
at its facility in St. Louis, Missouri, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
14, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means.6 Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 30, 2005.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
6 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
(n) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. August 25, 2011
Wilma B. Liebman, Chairman
Mark Gaston Pearce, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to recognize and bargain in
good faith with Painters District Council No. 2, by repu-
diating our 2005–2010 collective-bargaining agreement
with it and by withdrawing recognition from it as the
limited exclusive collective-bargaining representative of
our employees in the following unit:
All journeymen painters, tapers and drywall finishers,
paper and wall covering hangers, apprentices, pre-
apprentices, summer help and working foreman em-
ployed by us.
WE WILL NOT repudiate and fail to continue in effect
all the terms and conditions of the 2005–2010 collective-
bargaining agreement.
ANTHONY’S PAINTING 5
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.
WE WILL recognize and bargain with the Union as the
limited exclusive collective-bargaining representative of
our unit employees and comply with the terms of the
2005–2010 agreement.
WE WILL make whole our unit employees for any loss
of earnings and other benefits that they may have suf-
fered as a result of our failure to continue in effect the
terms and conditions of the 2005–2010 collective-
bargaining agreement, with interest.
WE WILL continue in effect the terms and conditions of
the 2005–2010 agreement including (1) paying unit em-
ployees for their overtime work at contractual wage rates,
(2) making all contractually-required benefit fund contri-
butions that have not been made since October 14, 2009,
and reimbursing our unit employees for any expenses
ensuing from our failure to make the required payments,
with interest; (3) remitting dues that have not been remit-
ted since October 14, 2009, and deducting and remitting
union dues pursuant to valid dues-checkoff authoriza-
tions that have not been deducted since November 14,
2009, with interest; (4) maintaining a surety bond; (5)
remitting contribution reports to the Union; (6) adhering
to the union-security clause; (7) withholding and remit-
ting money to the Union’s vacation fund; (8) scheduling
audits; and (9) paying employees at contractual wage
rates.
ANTHONY’S PAINTING, LLC