Fresh Alternative Painting & Decorating

National Labor Relations Board - Board Decisions

Jan 30, 1995

316 N.L.R.B. 172 (N.L.R.B. 1995)

172
316 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 3, 1995, the General Counsel filed a supplemental
pleading further submitting that the administrative hearing originally
scheduled for December 16, 1994, had been postponed, and that its
original motion was timely filed.
Dureya Gibson, d/b/a Fresh Alternative Painting &
Decorating Company, and its alter ego, Sur-
face’s Paint & Decorating and International
Brotherhood of Painters and Allied Trades,
Local Union No. 1396, AFL–CIO. Case 7–CA–
36155
January 30, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
Upon a charge and an amended charge filed by
International Brotherhood of Painters and Allied
Trades, Local Union No. 1396, AFL–CIO (the Union)
on July 14 and August 8, 1994, respectively, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint and amendment to complaint on
August 30 and September 19, 1994, respectively, alleg-
ing that Dureya Gibson, d/b/a Fresh Alternative Paint-
ing & Decorating Company, and its alter ego, Sur-
face’s Paint & Decorating, the Respondent, has vio-
lated Section 8(a)(1) and (5) of the National Labor Re-
lations Act. Although properly served copies of the
charge, amended charge, complaint and amendment to
complaint, the Respondent failed to file an answer.
On December 28, 1994, the General Counsel filed a
Motion for Default Summary Judgment on the plead-
ings with the Board. On December 30, 1994, 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.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Default 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 complaint
and amendment to complaint affirmatively note that
unless an answer is filed within 14 days of service, all
the allegations in the complaint and amendment to
complaint will be considered admitted. Further, the un-
disputed allegations in the Motion for Default Sum-
mary Judgment disclose that the Region, by letter
dated October 20, 1994, notified the Respondent that
unless an answer were received by October 28, 1994,
a Motion for Default Summary Judgment would be
filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Default Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Dureya Gibson, an individual,
has owned and has done business as Fresh Alternative
Painting & Decorating Company, a sole proprietorship.
At all material times since about May 23, 1994, Antoi-
nette Gibson, an individual and wife of Dureya Gib-
son, has owned and has done business as Surface’s
Paint & Decorating, a sole proprietorship. About May
23, 1994, Surface’s Paint & Decorating was estab-
lished by Dureya Gibson and Antoinette Gibson as a
disguised continuance of Fresh Alternative Painting &
Decorating Company.
Based on the conduct described above, Fresh Alter-
native Painting & Decorating Company and Surface’s
Paint & Decorating are, and have been at all material
times since about May 23, 1994, alter egos and a sin-
gle employer.
At all material times prior to about March 28, 1994,
the Respondent maintained an office and place of busi-
ness at 300 Kalamazoo Street, South Haven, Michigan.
At all material times since March 28, 1994, the Re-
spondent has maintained an office and place of busi-
ness at 34233 M-140 Highway, Covert, Michigan. At
both locations, the Respondent has been engaged in the
construction industry as a commercial and industrial
painting contractor.
During the 12-month period ending March 15, 1993,
the Respondent provided painting services valued in
excess of $40,000 directly to the Covert, Michigan
Public Schools, a political subdivision of the State of
Michigan, and painting services valued in excess of
$17,000 directly to Pullman Industries, Inc., an enter-
prise located within the State of Michigan, each of
which enterprises are directly engaged in interstate
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 the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About November 5, 1992, the Respondent, an em-
ployer engaged in the building and construction indus-
try, entered into a collective-bargaining agreement with
the Union effective for the period May 17, 1992, to
May 17, 1995.
173FRESH ALTERNATIVE PAINTING & DECORATING
2 The September 19, 1994 amendment to the complaint deleted the
allegations in the original complaint that the Union was recognized
as the exclusive bargaining representative without regard to its ma-
jority status, and that it has been the limited exclusive bargaining
representative of the unit employees. Nevertheless, the complaint’s
commerce data indicates that the Respondent is a construction indus-
try employer subject to the provisions of Sec. 8(f) of the Act. Ac-
cordingly, in the absence of an allegation that the bargaining rela-
tionship was actually based on 9(a) majority support, we find that
the relationship was entered into pursuant to Sec. 8(f), and that the
Union is therefore the limited 9(a) representative of the unit employ-
ees for the period covered by the contract. See, e.g., Electri-Tech,
Inc., 306 NLRB 707 fn. 2 (1992) (citing John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB,
843 F.2d 770 (3d Cir. 1988).
3 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
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that Respondent
otherwise owes the fund.
The collective-bargaining unit (the unit) set forth in
the collective-bargaining agreement is appropriate for
purposes of collective bargaining.
Since about November 5, 1992, and at all material
times, the Union has been recognized by the Respond-
ent as the exclusive collective-bargaining representa-
tive of the unit. Such recognition has been embodied
in the 1992-1995 collective-bargaining agreement.
At all times since November 5, 1992, based on Sec-
tion 9(a) of the Act, the Union has been the limited
exclusive collective-bargaining representative of the
unit.2
Since about March 7, 1994, the Respondent has
failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of the unit.
Since about March 7, 1994, the Respondent failed to
continue in effect its collective-bargaining agreement
with the Union, and ceased to make the following con-
tractually required deductions and contributions on be-
half of employees employed in the unit:
(a) Administrative dues
(b) Vacation fund
(c) Insurance fund
(d) Michigan State Building Trade Fund
(e) B.A. Assessment
(f) Benton Harbor J.A.T.C. Apprenticeship
Fund
Although the subjects set forth above relate to
wages, hours, and other terms and conditions of em-
ployment of the unit, and are mandatory subjects for
the purposes of collective bargaining, the Respondent
engaged in the conduct described above without the
Union’s consent and without affording the Union an
opportunity to bargain with the Respondent with re-
spect to this conduct.
Since about March 7, 1994, the Respondent, through
Dureya Gibson, has bypassed the Union and dealt di-
rectly with its employees in the unit by soliciting em-
ployees to enter individual employment agreements, in-
cluding deferred payment, barter, and nonwage em-
ployment agreements for unit work.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the limited exclusive
collective-bargaining representative of its employees,
and has thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) and (5) and Section 8(d) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, we shall order the Respondent to recognize and
bargain with the Union as the limited exclusive bar-
gaining representative of the unit employees, to com-
ply with the 1992–1995 agreement, and to make whole
the unit employees for any loss of wages or earnings
they may have suffered as a result of the Respondent’s
failure to do so since March 7, 1994, in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 52 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, we shall order the Re-
spondent to make all contractually required deductions
and to reimburse the Union and/or the Funds for its
failure to do so since March 7, 1994, with interest as
prescribed in New Horizons for the Retarded, supra.
Finally, we shall order the Respondent to make whole
the unit employees by making all required contribu-
tions that have not been made since March 7, 1994, in-
cluding any additional amounts due on behalf of the
unit employees in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 fn. 7 (1979), and by
reimbursing them 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. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.3
ORDER
The National Labor Relations Board orders that the
Respondent, Dureya Gibson, d/b/a Fresh Alternative
Painting & Decorating Company, and its alter ego,
Surface’s Paint & Decorating, Covert, Michigan, its of-
ficers, agents, successors, and assigns, shall
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
with the International Brotherhood of Painters and Al-
lied Trades, Local Union No. 1396, AFL–CIO, as the
limited exclusive collective-bargaining representative
of the employees in the unit.
(b) Failing and refusing to comply with the 1992–
1995 collective-bargaining agreement with the Union
and ceasing to make contractually required deductions
and contributions on behalf of unit employees for ad-
ministrative dues, Vacation fund, Insurance fund,
Michigan State Building Trade Fund, B.A. Assess-
ment, Benton Harbor J.A.T.C. Apprenticeship Fund.
(c) Bypassing the Union and dealing directly with
the employees in the unit by soliciting the employees
to enter into individual employment agreements, in-
cluding deferred payment, barter, and nonwage em-
ployment agreements for unit work.
(d) In any like or related manner interfering with,
restraining, 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 with the Union as the
limited exclusive bargaining representative of the em-
ployees in the unit set forth in the 1992–1995 collec-
tive-bargaining agreement and comply with the terms
and conditions of that agreement.
(b) Make whole the unit employees for any loss of
wages or earnings they may have suffered as a result
of its unlawful conduct and by making all required
contributions that have not been made since March 7,
1994, and by reimbursing them for any expenses ensu-
ing from its failure to make the required contributions,
as set forth in the remedy section of this decision.
(c) Make all contractually required deductions and
reimburse the Union and/or the Funds for its failure to
do so since March 7, 1994, as set forth in the remedy
section of this decision.
(d) Make whole the unit employees by making all
required contributions that have not been made since
March 7, 1994, and by reimbursing them for any ex-
penses ensuing from its failure to make the required
contributions, as set forth in the remedy section of this
decision.
(e) 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.
(f) Post at its facility in Covert, Michigan, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to recognize and bar-
gain with the International Brotherhood of Painters and
Allied Trades, Local Union No. 1396, AFL–CIO, as
the limited exclusive collective-bargaining representa-
tive of the employees in the unit.
WE WILL NOT fail and refuse to comply with the
1992–1995 collective-bargaining agreement with the
Union and cease to make contractually required deduc-
tions and contributions on behalf of unit employees for
administrative dues, Vacation fund, Insurance fund,
Michigan State Building Trade Fund, B.A. Assess-
ment, Benton Harbor J.A.T.C. Apprenticeship Fund.
WE WILL NOT bypass the Union and deal directly
with employees in the unit by soliciting the employees
to enter into individual employment agreements, in-
cluding deferred payment, barter, and nonwage em-
ployment agreements for unit work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL recognize and bargain with the Union as
the limited exclusive bargaining representative of the
employees in the unit set forth in the 1992–1995 col-
lective-bargaining agreement and comply with the
terms and conditions of that agreement.
WE WILL make whole the unit employees for any
loss of wages or earnings resulting from our failure to
comply with the terms and conditions of the 1992–
1995 agreement, with interest.
175FRESH ALTERNATIVE PAINTING & DECORATING
WE WILL make all contractually required deductions
and reimburse the Union and/or the Funds for our fail-
ure to do so since March 7, 1994, with interest.
WE WILL make whole the unit employees by making
all required contributions that have not been made
since March 7, 1994, and by reimbursing them for any
expenses ensuing from our failure to make the required
contributions, with interest.
DUREYA GIBSON, D/B/A FRESH ALTER-
NATIVE PAINTING & DECORATING COM-
PANY, AND ITS ALTER EGO, SURFACE’S
PAINT & DECORATING