Frans Joseph, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 35 (N.L.R.B. 2004)

342 NLRB No. 35
1
Frans Joseph, Inc. and De Colores, Inc., Alter Egos
and International Union of Painters and Allied
Trades, District Council 57 of Western Pennsyl-
vania, AFL–CIO, CLC. Cases 6–CA–33771 and
6–CA–33911
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondents have failed to
file an answer to the consolidated complaint. Upon a
charge, first amended charge, and second amended
charge filed by the Union in Case 6–CA–33771 on No-
vember 13, 2003, and January 26 and February 25, 2004,
respectively, and a charge and first amended charge filed
by the Union in Case 6–CA–33911 on January 26, 2004
and February 25, 2004, respectively, the General Counsel
issued the consolidated complaint on February 27, 2004,
against Frans Joseph, Inc. and De Colores, Inc., alter
egos, the Respondent, alleging that it has violated Sec-
tion 8(a)(5), (3), and (1) of the Act. The Respondent
failed to file an answer.
On April 5, 2004, the General Counsel filed a Motion
for Default Judgment with the Board. On April 8, 2004,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
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 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. In addition, the complaint affirmatively stated
that unless an answer was filed by March 12, 2004, all
the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated March 23, 2004, notified the Respondent that
unless an answer was received by the close of business
on the third business day following receipt of the letter, a
motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel's Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
On a date unknown to the General Counsel but particu-
larly within the knowledge of the Respondent, Respon-
dent De Colores was established by Respondent Frans
Joseph and the Respondent as a disguised continuance of
Respondent Frans Joseph, with substantially identical
ownership, management, business purpose, operations,
customers, and supervision.
Based on the conduct described above, Respondent
Frans Joseph and Respondent De Colores have been, at
all material times, alter egos and a single employer
within the meaning of the Act.
At all material times, Respondent Frans Joseph, a
Pennsylvania corporation with an office and place of
business located in Manor, Pennsylvania, herein called
Respondent Frans Joseph’s facility, has been engaged in
business as a painting and wallcovering contractor in the
construction industry.
At all material times, Respondent De Colores, a Penn-
sylvania corporation with an office and place of business
located in Murrysville, Pennsylvania, herein called Re-
spondent De Colores’ facility, has been engaged in busi-
ness as a painting and wallcovering contractor in the
construction industry.
During the 12-month period ending October 31, 2003,
Respondent Frans Joseph, in conducting its operations
described above, provided services valued in excess of
$50,000 to various customers, including Continental
Building Systems, Inc. and Shawmut Design and Con-
struction, Inc., Pennsylvania corporations, which are
themselves directly engaged in interstate commerce.
During the 12-month period ending October 31, 2003,
Respondent De Colores, in conducting its operations
described above, provided services in excess of $50,000
to various customers, including Continental Building
Systems, Inc. and Shawmut Design and Construction,
Inc., enterprises within the Commonwealth of Pennsyl-
vania, which are themselves directly engaged in inter-
state commerce.
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 International Union of Painters
and Allied Trades, District Council 57 of Western Penn-
sylvania, AFL–CIO, CLC 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 named persons oc-
cupied 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
agents of the Respondent within the meaning of Section
2(13) of the Act:

Frank Blazetic Co-Owner and President, Re-
spondent Frans Joseph until De-
cember 31, 2002;
Co-Owner and President, Re-
spondent, until December 31, 2002

Carl Good Co-Owner and Vice President,
Respondent Frans Joseph;
Co-Owner and Vice President,
Respondent;
Member, Board of Directors, Re-
spondent De Colores;
Member, Board of Directors, Re-
spondent;
Manager, Respondent Frans Jo-
seph, Respondent De Colores, and
Respondent

In about mid-July 2003, the Respondent constructively
discharged Bill Denelsbeck, Mark Smith, Don Kalina,
Joseph Kovac, Bob Evans, and other employees of Re-
spondent Frans Joseph, whose identities are unknown to
the General Counsel but whose identities are particularly
within the knowledge of the Respondent. The Union did
not become aware of the constructive discharges until on
or about October 1, 2003.
Since about mid-July 2003, Respondent De Colores
failed and refused to continue to employ Bill Denels-
beck, Mark Smith, Don Kalina, Joseph Kovac, Bob Ev-
ans, and other employees of Respondent Frans Joseph.
The Union did not become aware of the failures and re-
fusals to continue to employ until on or about October 1,
2003.
The Respondent engaged in the conduct described
above because the named employees formed, joined, and
assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these ac-
tivities, and to avoid the obligations of the collective-
bargaining agreement in effect between Respondent
Frans Joseph and the Respondent and the Union, de-
scribed below.
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
certain employees of Respondent Frans Joseph and the
Respondent (the unit), and has been recognized as such
by Respondent Frans Joseph and the Respondent. Such
recognition has been embodied in a collective-bargaining
agreement, the effective dates of which are June 1, 2002
through May 31, 2005.
The unit, as set forth in the collective-bargaining
agreement, constitutes a unit appropriate for the purpose
of collective bargaining within the meaning of Section
9(b) of the Act.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
Article XXIV of the collective-bargaining agreement,
entitled “Preservation of Work/Evasion of Standards,”
provides, in pertinent part:

If the Employer performs on-site construction
work of the type covered by this Agreement, under
its own name or the name of another, as a corpora-
tion, company, partnership, or other business entity,
including a joint venture, wherein the Employer,
through its officers, directors, partners, owners, or
stockholders, exercises directly or indirectly
(through family members or otherwise), manage-
ment, control, or majority ownership, the terms and
conditions of this agreement shall be applicable to
all such work.

In about mid-July 2003, the Respondent ceased opera-
tion of Respondent Frans Joseph’s business, construc-
tively discharged employees Denelsbeck, Smith, Kalina,
Kovac, Evans, and other employees of Respondent Frans
Joseph, and transferred all of its business operations to
Respondent De Colores.
At all times since about mid-July 2003, Respondent De
Colores and the Respondent failed and refused to con-
tinue to recognize and bargain collectively and in good
faith with the Union as the exclusive collective-
bargaining representative of the unit, to continue in effect
all of the provisions of the collective-bargaining agree-
ment, and to continue to employ the employees referred
to above.
The subjects described above relate to wages, hours,
and other terms and conditions of employment of the unit
and are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and the effects
of this conduct.
In the alternative, at all times since about mid-July
2003, the Respondent, by the conduct described above,
failed to continue in effect all the terms and conditions of
the collective-bargaining agreement, and specifically
failed to adhere to article XXIV of the collective-
bargaining agreement.
FRANS JOSEPH, INC. AND DE COLORES, INC. 3
The Respondent engaged in the conduct described
above without the Union’s consent.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining.
CONCLUSIONS OF LAW
By constructively discharging and failing to continue
to employ employees Bill Denelsbeck, Mark Smith, Don
Kalina, Joseph Kovac, Bob Evans, and other employees
of Respondent Frans Joseph, the Respondent has dis-
criminated in regard to the hire or tenure, or terms and
conditions of employment, of its employees, thereby
discouraging membership in a labor organization in vio-
lation of Section 8(a)(3) and (1) of the Act.
By ceasing operation of Respondent Frans Joseph’s
business, constructively discharging the employees re-
ferred to above, and transferring all of its business opera-
tions to Respondent De Colores; by failing and refusing
to continue to recognize the Union as the exclusive col-
lective-bargaining representative of the unit, to continue
in effect all of the provisions of the collective-bargaining
agreement, to continue to employ the employees referred
to above, and specifically by failing to adhere to article
XXIV of the collective-bargaining agreement, the Re-
spondent has failed and refused to bargain collectively
with the exclusive collective-bargaining representative of
its employees, and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act.
The Respondent’s unfair labor practices affect com-
merce 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)(3)
and (1) by constructively discharging and failing and
refusing to continue to employ employees Bill Denels-
beck, Mark Smith, Don Kalina, Joseph Kovac, Bob Ev-
ans, and other employees of the Respondent, we shall
order the Respondent to offer these employees full rein-
statement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed, and to make them whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them. Backpay shall be
computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 173 (1987).
The Respondent shall also be required to expunge
from its files any references to the unlawful constructive
discharges and failures to continue to employ, and to
notify the discriminatees in writing that this has been
done and that the discharges will not be used against
them in any way.
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) by since mid-July 2003 ceasing
operation of Respondent Frans Joseph’s business, con-
structively discharging the employees referred to above,
and transferring all of its business operations to Respon-
dent De Colores; by failing and refusing to recognize the
Union as the exclusive collective-bargaining representa-
tive of the unit; by failing to continue in effect all of the
terms and conditions set forth in the collective-
bargaining agreement, failing to continue to employ the
employees referred to above, and specifically by failing
to adhere to Article XXIV of the collective-bargaining
agreement, we shall order the Respondent to recognize
and bargain with the Union, and to abide by the terms of
the agreement. We shall also order the Respondent to
make whole its unit employees for any loss of earnings
and other benefits they have suffered as a result of the
Respondent’s failure to comply with the agreement since
mid-July 2003, 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, supra.
Further, in the event that the agreement provides for
contributions to pension and benefit funds, we shall order
the Respondent to make all contractually-required con-
tributions to these funds that have not been made since
mid-July, 2003, 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 employees for any expenses
ensuing from its failure to make the required contribu-
tions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981).1
ORDER
The National Labor Relations Board orders that the
Respondent, Frans Joseph, Inc. and De Colores, Inc.,

1 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
Alter Egos, Manor and Murrysville, Pennsylvania, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Constructively discharging and failing and refus-
ing to continue to employ employees Bill Denelsbeck,
Mark Smith, Don Kalina, Joseph Kovac, Bob Evans, and
other employees of the Respondent because they formed,
joined, and assisted the Union and engaged in concerted
activities, to discourage employees from engaging in
these activities, and to avoid the obligations of the collec-
tive-bargaining agreement in effect between the Respon-
dent and the Union, effective from June 1, 2002 through
May 31, 2005.
(b) Failing and refusing to continue to recognize and
bargain with International Union of Painters and Allied
Trades, District Council 57 of Western Pennsylvania,
AFL-CIO, CLC, as the exclusive collective-bargaining
representative of its employees in the unit set forth in the
collective-bargaining agreement.
(c) Ceasing operation of Respondent Frans Joseph’s
business and transferring all of its business operations to
Respondent De Colores, and failing and refusing to con-
tinue in effect all of the terms and conditions set forth in
the collective-bargaining agreement, and specifically
failing to adhere to article XXIV of the agreement.
(d) 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) Within 14 days from the date of this Order, offer
Bill Denelsbeck, Mark Smith, Don Kalina, Joseph
Kovac, Bob Evans, and other employees of the Respon-
dent full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges previously enjoyed.
(b) Make Bill Denelsbeck, Mark Smith, Don Kalina,
Joseph Kovac, Bob Evans, and other employees of the
Respondent whole for any loss of earnings and other
benefits resulting from the unlawful constructive dis-
charges and failures to continue to employ, with interest,
in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove
from their records any references to the unlawful con-
structive discharges of, and failures to continue to em-
ploy, Bill Denelsbeck, Mark Smith, Don Kalina, Joseph
Kovac, Bob Evans, and other employees of the Respon-
dent, and within 3 days thereafter, notify them in writing
that this has been done and that the unlawful constructive
discharges and failures to continue to employ will not be
used against them in any way.
(d) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees on terms and conditions of employ-
ment.
(e) Continue in effect all of the terms and conditions of
the June 1, 2002 through May 31, 2005 collective-
bargaining agreement, and specifically adhere to article
XXIV of the agreement.
(f) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its refusal since mid-July 2003 to continue in
effect all of the terms and conditions of the collective-
bargaining agreement, with interest, as set forth in the
remedy section of this decision.
(g) Make all fund payments required by the collective-
bargaining agreement that have not been made since
mid-July 2003, and reimburse unit employees for any
expenses ensuing from its failure to make the require-
ment payments, in the manner set forth in the remedy
section of this decision.
(h) 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
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facilities in Manor and Murrysville, Pennsylvania,
copies of the attached notice marked "Appendix."2 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 6, after being signed by the Respon-
dent’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. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former

2If 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.”
FRANS JOSEPH, INC. AND DE COLORES, INC. 5
employees employed by the Respondent at any time
since mid—July 2003.
(j)Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent 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 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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT constructively discharge or fail and re-
fuse to continue to employ employees Bill Denelsbeck,
Mark Smith, Don Kalina, Joseph Kovac, Bob Evans, and
other employees, because they formed, joined and as-
sisted the Union and engaged in concerted activities, to
discourage employees from engaging in these activities,
and to avoid the obligations of the collective-bargaining
agreement in effect between us and the Union, effective
from June 1, 2002 through May 31, 2005.
WE WILL NOT fail and refuse to continue to recognize
and bargain with International Union of Painters and
Allied Trades, District Council 57 of Western Pennsyl-
vania, AFL-CIO, CLC, as the exclusive collective-
bargaining representative of our employees in the unit set
forth in the collective-bargaining agreement.
WE WILL NOT cease operation of Frans Joseph, Inc.’s
business and transfer all of its business operations to De
Colores, Inc., and fail to continue in effect all the terms
and conditions set forth in the collective-bargaining
agreement, and specifically fail to adhere to article XXIV
of the collective-bargaining agreement.
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, within 14 days from the date of the Board’s
Order, offer Bill Denelsbeck, Mark Smith, Don Kalina,
Joseph Kovac, Bob Evans, and other employees full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges
previously enjoyed.
WE WILL make Bill Denelsbeck, Mark Smith, Don Ka-
lina, Joseph Kovac, Bob Evans, and other employees
whole for any loss of earnings and other benefits result-
ing from the unlawful constructive discharges and fail-
ures to continue to employ, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful constructive discharges of, and failures to con-
tinue to employ, Bill Denelsbeck, Mark Smith, Don Ka-
lina, Joseph Kovac, Bob Evans, and other employees,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the unlawful
conduct will not be used against them in any way.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit employees on terms and conditions of
employment.
WE WILL continue in effect all of the terms and condi-
tions of the June 1, 2002 through May 31, 2005 collec-
tive-bargaining agreement, and specifically adhere to
article XXIV of the agreement.
WE WILL make whole the unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our refusal since mid-July 2003 to continue in
effect all of the terms and conditions of the collective-
bargaining agreement, with interest.
WE WILL make all fund payments required by the col-
lective-bargaining agreement that have not been made
since mid-July 2003, and reimburse unit employees for
any expenses ensuing from our failure to make the re-
quired payments.

FRANS JOSEPH, INC. AND DE COLORES, INC.,
ALTER EGOS