Mckissack Painting Co., Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1979

244 N.L.R.B. 543 (N.L.R.B. 1979)

M(KISSA('K PAINTING (().. IN(C.
McKissack Painting Co.. Inc. and Painters District
Council No. 22, International Brotherhood of Paint-
ers & Allied Trades, AFI,-CIO. ('ase 7 (CA 16123
August 22. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING( ANt) MEMBERS PENII.I.()
AN[) TRU;LSDAII
Upon a charge filed on February 28, 1979, by
Painters District Council No. 22, International Broth-
erhood of' Painters & Allied Trades. AFL-CIO,
herein called the Union. and duly served on McKis-
sack Painting Co.. Inc.. herein called Respondent. the
General Counsel of the National Labor Relations
Board. by the Regional Director for Region 7. issued
a complaint and notice of hearing on April 11. 1979.
against Respondent alleging that Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (I) Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge. complaint, and notice of hearing before an
administrative law judge were duly served on the par-
ties to this proceeding. Respondent failed to file an
answer to the complaint.
On June 5. 1979. counsel for the General Counsel
filed directly with the Board a motion to transfer the
case to and continue the proceedings before the
Board and a Motion for Default Summary Judgment
based on Respondent's failure to file an answer as
required by Sections 102.20 and 102.21 of the Na-
tional Labor Relations Board's Rules and Regula-
tions, Series 8, as amended. Subsequently, on June 8.
1979, the Board issued an order transferring proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Default Summary
Judgment should not be granted. Respondent did not
file a response to the Notice To Show Cause, and
accordingly the allegations of the complaint stand un-
controverted.
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:
Ruling on the Motion for Default Summary
Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall. within 10 da33s 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 specificall3
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 admit-
ted to be true and shall be so found by the
Board. unless good cause to the contrar is
shown.
The complaint and notice of hearing served on Re-
spondent on April II11. 1979. specifically stated that
unless an answer to the complaint was filed within 10
days from the service thereof "all of the allegations in
the Complaint shall be deemed to be admitted true
and may be so found bh the Board." Further. Re-
spondent was notified by letter dated May 7. 1979.
that an answer to the complaint had not been re-
ceived, and that summary judgment would be sought
unless an answer to the complaint was filed bh May
17. 1979. As noted above, Respondent has not filed
an answer to the complaint. nor did it respond to the
Notice To Show Cause. No good cause to the con-
trary having been shown, in accordance with the rules
set forth above the allegations of the complaint are
deemed to be admitted and are found to be true. Ac-
cordingly. we grant the General Counsel's Motion for
Default Summary Judgment.'
On the basis of the entire record the Board makes
the following:
FINDIN(iS OF FACT
I. THE BUSINESS OF RESPONDENI
At all times material herein, Respondent, a Michi-
gan corporation with its principal office and place of
business in Brighton, Michigan, has been engaged in
the business of painting apartment buildings. During
the past fiscal year, a representative period. Respon-
dent, in the course and conduct of its business opera-
tions, rendered services valued in excess of $90,000 to
Edward Rose & Sons Construction Company which,
during the same fiscal year period, purchased and
caused to be transported and delivered to its places of
business within the State of Michigan goods and ma-
terials valued in excess of $50.000 which were trans-
' Eagle Truck and Trailer Rental Divion of E T d T Leaving, Inc.. 21 1
NLRB 804 (19741.
244 NLRB No. 72
543
I)I:('ISIONS 0() NATIONAL, LABOR REL.ATIONS BOARI)
ported and de(lcliverd to said places of' business di-
rectx f'romi points located outside the State of
M ichiga n.
We final tn the basis of' the foregoing that Respon-
dent is andl has been at all times material herein an
employer engaged in commerce within the meaning
of, Section 2(61 and (7) of' the Act, and that it will
efltectuate the policies of' the Act to assert jurisdiction
herein.
11. III. ABR OR(iANI/.A'ION INVOIVEI)
Painters District Council No. 22. International
Brotherhood of Painters & Allied Trades. AFL CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
Ill. I'Ft Ut'NFAIR ABOR PRA('CiI('IS
The fIllowing employees of Respondent constitute
a unit appropriate fr collective-bargaining purposes
within the meaning of Section 9b) of' the Act:
All painters employed by Respondent at Brigh-
ton, Michigan; but excluding all office clerical
employees, guards. and supervisors as defined in
the Act, and all other employees.
At all times material herein, a majority of the em-
ployees in the above-described unit have designated
or selected the Union as their representative for the
purposes of collective bargaining with Respondent.
On or about October 28, 1976, Respondent and the
Union entered into a written agreement which pro-
vided among other things, that as part of the compen-
sation earned by the employees in the above-de-
scribed unit Respondent would contribute on a
monthly basis to the Painters Union deposit fund the
sum of $3.17 for each hour worked during that month
by all employees employed by Respondent to pay for
insurance, pension. and vacation benefits.
Since May I. 1978, and continuing to date Respon-
dent has unilaterally, and without notice to or discus-
sion with the Union, failed and refused to make the
contributions to the Painters Union deposit fund as
required by the written agreement entered into be-
tween the Union and Respondent on October 28,
1976.
Accordingly, we find that by the aforesaid conduct
Respondent has, since on or about August 28. 1978.2
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that by such refusal Respondent
has engaged in and is engaging in unfair by labor
2 See Sec. 10(b) of the Act.
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. Illl :FI::('l )F I Ili t'NIAIR ABOR PRA(' I S
UPON ('O()MMIR('I
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section i. above. have a close. intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. 1IL RML:)Y
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () of the Act. we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
We have found that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally, and without
notice to or discussion with the Union, failing and
refusing to make the contributions to the Painters
Union deposit fund as required by the written agree-
ment entered into between the Union and Respon-
dent on October 28, 1976. In order to dissipate the
effect of these unfair labor practices we shall order
Respondent to make whole its employees by paying
to the Painters Union deposit fund the contributions
which should have been made pursuant to the terms
of the above-described written agreement, retroactive
to August 28, 1978.3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CON(CLUSIONS OF LAWV
I. McKissack Painting Co., Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Painters District Council No. 22, International
Brotherhood of Painters & Allied Trades, AFL-CIO,
I Because the provisions of employees benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage of a
proceeding for the addition of interest at a fixed rate on unlawfull) withheld
fund payments. We leave to the compliance stage the question whether Re-
spondent McKissack Painting Co.. Inc., must pa) any additional amounts
into the benefit funds in order to satisf( our "make whole" remedy. These
additional amounts may be determined, depending on the circumstances of
each case. b) reference to pros isions in the documents governing the funds at
issue and where there are no governing provisions to evidence of any loss
directly attributable to the unla ful withholding action. hich might include
the loss of return on investment of the portion of funds withheld, additional
administrative costs, etc.. but not collateral losses. 3fernrwearher Oplical
(Conpun. 240 NLRB 1213 (1979).
544
MCKISSACK PAINTING CO.. INC.
is a labor organization within the meaning of Section
2(5) of the Act.
3. All painters employed by Respondent at Brigh-
ton, Michigan: but excluding all office clerical em-
ployees, guards, and supervisors as defined in the Act,
and all other employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been
the exclusive representative of all the employees in
the aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(a)
of the Act.
5. By unilaterally, and without notice to or discus-
sion with the Union, failing and refusing since on or
about August 28, 1978, to contribute to the Painters
Union deposit fund the sums of money required pur-
suant to the written agreement entered into between
the Union and Respondent on October 28, 1976. Re-
spondent has refused to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate bargaining unit described
above and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (I) 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent.
McKissack Painting Co., Inc., Brighton, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Painters
District Council No. 22, International Brotherhood of
Painters & Allied Trades, AFL-CIO, by unilaterally
and without notice to or discussion with the aforesaid
Union, failing and refusing to contribute to the Paint-
ers Union deposit fund the sums of money required
pursuant to the written agreement entered into be-
tween the Union and Respondent on October 28,
1976.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
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) Upon request, bargain collectively with Paint-
ers & Allied Trades, AFL CIO, with respect to rates
of pay, wages, hours, and other terms and conditions
of employment. The appropriate unit tor the purposes
of collective bargaining is:
All painters employed by McKissack Painting
Co., Inc., at Brighton. Michigan: but excluding
all office clerical employees. guards and supervi-
sors as defined in the Act, and all other employ-
ees.
(b) Make whole its employees by making contribu-
tions into the Painters Union deposit fund in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) Preserve and, upon request. make aviJilable to
the Board or its agents, for examination and cops ing.
all payroll records, social security panyment records,
timecards, personnel records and reports. and all
other records necessary or useful in checking compli-
ance with this Order.
(d) Post at its flcility in Brighton. Michigan, copies
of the attached notice marked "Appendix. T4 Copies
of said notice, on forms provided bh the Regional
Director for Regional 7. after being dul signed bv
Respondent's representative, shall be postedl hb Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter. in
conspicuous places, including all places wIhere notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered bh an!
other material.
(e) Notify the Regional I)irector tfr Region 7. in
writing. within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
4 In the event Ihatl hi, Order is entrced h a Judgment oft a I nited States
(Court o1 Appeal's. the ord, in the notlce reading "Posled h ()rder o the
National Labor Relatont B ard" ,hall reald "I'lled Pursiuanl to .1 Judgment
of the I'nited State, ('ourl t Appeals rnfo.rcing an ()rler of he Ntlonal
t.abor Relations Board"
APPIN I)lX
Nori(ci 1) EMPI.O)Yl :S
Pos I I) BY ORI)KR ()F II;11
NAIIIONAI. LABOR RI.AII1ONS B()ARI)
An Agency of the United States Government
WE Wll., Nor) refuse to bargain collectively
with Painters District Council No. 22. Interna-
tional Brotherhood of Painters & Allied 'Irades.
AFL.CIO, by unilaterally and without notice to
or discussion with that Union failing or reftusing
to contribute to the Painters Union deposit fund
the sums of mone 3 required under the terms of
the written agreement entered into between our-
selves and the above-named Llnion on October
28, 1976.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILI. in any like or related manner inter-
fere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WIL., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment. The bargaining unit is:
All painters employed by McKissack Painting
Co., Inc., at Brighton, Michigan; but exclud-
ing all office clerical employees, guards and su-
pervisors as defined in the National Labor Re-
lations Act, and all other employees.
WE WILL make our employees whole by pay-
ing to the Painters Union deposit fund the con-
tributions which should have been made pursu-
ant to the terms of our written agreement with
the above-named Union.
MCKISSACK PAIN IING CO., INC.
546