Michigan Drywall Corp.

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 120 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan Drywall Corporation, M & D Drywall, Inc.,
and James F. Mullins and Painters District
Council No. 22 of the International Brotherhood of
Painters and Allied Trades, AFL-CIO and Car-
penters District Council of Detroit, Wayne, Oak-
land and Macomb Counties and Vicinity, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Cases 7-CA-13366 and 7-CA-13613
September 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 29, 1977, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a brief and the General Counsel and
Charging Party, Painters District Council No. 22,
filed cross-exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge, to modify his remedy,2 and to adopt
his recommended Order,3 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dents, Michigan Drywall Corporation, M & D
Drywall, Inc., and James F. Mullins, Southfield,
Michigan, their officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete the words "earned on overtime" from
paragraphs !(b) and 2(b) of the recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
We find merit in the General Counsel's exception to the inadvertent
failure of the Administrative Law Judge to include as part of his
jurisdictional findings facts which were alleged and admitted in the
pleadings. Accordingly, we hereby correct this oversight by making the
following jurisdictional finding of fact:
During the fiscal year ending August 31. 1976. S & S Homes, Inc., in
the course and conduct of its business operations constructed and sold
residential homes and property within the State of Michigan to
individual homeowners, the gross value of which exceeded $500.000.
2 In accordance with our decision in Florida Steel Corporation, 231
N LRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25., 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
I We agree with Charging Party Painters District Council No. 22's
exceptions to the Administrative Law Judge's recommended Order which
limits recovery for fringe benefit contnbutions to those which were earned
on the basis of overtime work. Clearly, the only proper reimbursement
remedy in these circumstances is one which provides for the full restoration
of all fringe benefit contributions earned pursuant to the collective-
bargaining agreements. Accordingly, we shall modify the recommended
Order and notice by deletion of the words "earned on overtime," to permit
the Charging Parties to recover all fringe benefit contributions owed them
on the basis of straight time or overtime earnings, in conformity with the
parties' collective-bargaining agreements.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
the Painters District Council No. 22 of the
International Brotherhood of Painters and Allied
Trades, AFL-CIO, and Carpenters District
Council of Detroit, Wayne, Oakland and Ma-
comb Counties and Vicinity, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
as the exclusive representatives of our employees
within the appropriate units covered by our
contracts with these Unions by refusing to furnish
them or their agents information concerning the
payment of fringe benefits to our employees in
conformity with the agreements. The appropriate
units are:
All journeymen and apprentice tapers
employed by Michigan Drywall Corporation
including foremen supervising employees
directly on the job, but excluding other
supervisors and guards as defined in the Act.
All journeymen and apprentice carpen-
ters and joiners employed by Michigan
Drywall Corporation including foremen
supervising employees directly on the job,
but excluding other supervisors and guards
as defined in the Act.
WE WILL NOT refuse to bargain collectively with
the above-named Unions as required by law by
refusing to make fringe benefit contributions for
the employees covered by the above-mentioned
contracts.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the Act.
232 NLRB No. 36
120
MICHIGAN DRYWALL CORPORATION
WE WILL make any fringe benefit contributions
which we have failed to make on behalf of our
employees in conformity with our contracts with
the above-named Unions.
WE WILL furnish the above-named Unions or
their agents information concerning the payment
of fringe benefits to our employees.
MICHIGAN DRYWALL
CORPORATION
M & D DRYWALL, INC.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed in Case 7-CA-13366 on September 24, 1976,
by Painters District Council No. 22 of the International
Brotherhood of Painters and Allied Trades, AFL-CIO,
herein referred to as the Painters, was served on Michigan
Drywall Corporation, M & D Drywall, Inc., and James F.
Mullins, the Respondents herein, by registered mail on or
about September 27, 1976. The charge filed in Case 7-CA-
13613 on December 21, 1976, by Carpenters District
Council of Detroit, Wayne, Oakland and Macomb Coun-
ties and Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein referred to as the
Carpenters, was served on the Respondents Michigan
Drywall Corporation and James F. Mullins on or about
December 22, 1976. An amended charge was filed on
January 14, 1977, and served on said Respondents by
registered mail on or about January 17, 1977.
An order consolidating the cases was entered on
February 3, 1977.
The complaints charged that the Respondents had
violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein referred to as the Act,
by their refusal to furnish the Unions with information
necessary for the administration of their contracts with the
Michigan Drywall Corporation and by the Respondents'
refusal to bargain collectively in that they unilaterally
modified the terms of the contracts between Michigan
Drywall Corporation and each union.
The Respondents filed timely answers denying that they
had committed any unfair labor practices alleged.
The consolidated cases came on for hearing on March 7,
1977, at Detroit, Michigan. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. The Respondents filed a brief which has been
carefully considered. Other parties argued orally.
The facts found herein are based on the record as a whole and the
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N. L. R. B. v. Walton Manufacturing (ompany & Loganville Pants
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
FINDINGS OF FACT,' CONCLUSIONS AND REASONS
THEREFOR
I. THE BUSINESS OF THE RESPONDENT
Michigan Drywall Corporation is, and has been at all
times material herein, a corporation duly organized under
and existing by virtue of the laws of the State of Michigan.
At all times material herein, Respondent Michigan
Drywall has maintained its principal office and place of
business at 22816 Thorncliff, Southfield, Michigan, herein
called Michigan Drywall place of business. Michigan
Drywall is, and has been at all times material herein,
engaged in providing drywall installation and related
services in the construction industry within the State of
Michigan.
During the fiscal year ending August 21, 1976, which
period is representative of its operations during all times
material herein, Respondent Michigan Drywall, in the
course and conduct of its business operations, provided
drywall and installation services emanating from its
Southfield, Michigan, place of business, valued in excess of
$100,000, of which services valued in excess of $75,000
were furnished to S & S Homes, Inc., a Michigan
corporation with its principal office and place of business
located at 23600 Van Born, Dearborn Heights, Michigan.
During the fiscal year ending August 31, 1976, S & S
Homes, Inc., received lumber which originated outside the
State of Michigan, valued in excess of $40,000, which was
transported to its place of business in interstate commerce,
directly from States of the United States other than the
State of Michigan.
M & D Drywall, Inc., was at all times material herein a
corporation duly organized under, and existing by virtue
of, the laws of the State of Alabama.
On or about December 31, 1973, Respondent M & D was
incorporated in the State of Alabama by Respondent
Mullins, J. Donald Eggert, and Marvin Pearson, with its
place of business listed as Route 2, Gadsden, Alabama. On
October 14, 1976, at the request of the above incorporators.
and same stockholders, Respondent M & D was dissolved
as an Alabama corporation.
At all times material herein, Respondent Mullins has
maintained a checking account at the First National Bank
of Ashford, Alabama, which account he has sometimes
utilized for the payment of wages to employees of
Respondent Michigan Drywall and Respondent M & D,
for the performance of work within the State of Michigan.
Respondent Mullins is, and has been at all times material
herein, the sole stockholder and controlling director and
officer of Respondent Michigan Drywall. From December
31, 1973, the date of its incorporation, through October 14,
1976, the date of its dissolution, he was the president and
controlling officer of Respondent M & D, and the sole
owner of 980 of its 1,000 outstanding shares of its common,
and only, stock. Respondent Mullins is the individual who
contradiction to the findings herein, their testimony has been discredited
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in light of the entire record. No
testimony has been pretermitted.
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed the alleged unfair labor practices set out in the
complaints.
Respondents Michigan Drywall, M & D, and Mullins are
now and have been at all times material herein collectively
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.2
I1 THE LABOR ORGANIZATIONS INVOLVED
The Carpenters and the Painters (herein sometimes
referred to as the Unions) at all times material herein have
been labor organizations within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
The Facts
All journeymen and apprentice tapers employed by
Michigan Drywall Corporation including foremen super-
vising employees directly on the job, but excluding other
supervisors and guards as defined in the Act, constitute a
unit of employees appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
At all times since 1969. by virtue of successive collective-
bargaining agreements between Respondent Michigan
Drywall Corporation and the Painters, and continuing to
date, the Painters has been the exclusive representative for
the purposes of collective bargaining of the employees in
the unit described in the paragraph above and, by virtue of
Section 9(a) of the Act, has been, and is now, the exclusive
representative of all the employees in said unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
The collective-bargaining agreements, above referred to,
provide, inter alia, for the payment by Respondent
Michigan Drywall Corporation of moneys into various
fringe benefit funds established for the benefit of employ-
ees of signatory employers to said agreements.
Commencing on or about August 13, 1976, and continu-
ing to date, and more particularly on or about August 13,
September 14, and October 11, 1976, the Painters, in order
to administer the contract, has requested, and continues to
request, that all Respondents supply to it all books,
records, accounts, ledgers, and records of original entry for
the period from October 1, 1973, through June 30, 1976,
showing wages paid to employees and hours of work of
employees under Respondent Michigan Drywall Corpora-
tion's collective-bargaining agreements with the Painters,
for purposes of an audit of said books and records by the
administrators of the fringe benefit funds.
Commencing on or about September 14, 1976, and
continuing to date, Respondents have refused to furnish
the Painters with the requested information set forth in the
above paragraph, except for certain Michigan Drywall
Corporation employee earnings records for the period of
January 1, 1975, through June 30, 1976.
All journeymen and apprentice carpenters and joiners
employed by Michigan Drywall Corporation including
2 The foregoing facts are allegations in the complaints which were
admitted by the Respondents in their answers.
foremen supervising employees directly on the job, but
excluding other supervisors and guards as defined in the
Act, constitute a unit of employees appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
At all times since 1969, by virtue of successive collective-
bargaining agreements, the current contract being by its
terms effective from June 1, 1976, until June 1, 1978,
between Respondent Michigan Drywall Corporation and
the Carpenters and continuing to date, the Carpenters has
been the exclusive representative for the purposes of
collective bargaining of the employees in the unit described
in the above paragraph and, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all the employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
The collective-bargaining agreements, above referred to,
all provide, inter alia, for the payment by Respondent
Michigan Drywall of moneys into various fringe benefit
funds established for the benefit of employees of Respon-
dent Michigan Drywall, and further provide in article VII,
section A:
... each employee shall be paid weekly, during
working hours, by means of a payroll check, which
shall be accompanied by a stub or memorandum
indicating the dates of the pay period, the gross amount
of the check, FICA, and income tax withheld, company
name, address, hours worked, and employee's
name ...
Commencing on or about December 9, 1976, and
continuing to date, and more particularly on or about
December 9 and 16, 1976, the Carpenters, in order to
administer the contract, has requested, and continues to
request, that all Respondents supply to it all canceled
checks and payroll records for the Ashford, Alabama,
checking account of Respondent Mullins described in
section I of this Decision, showing wages paid to employees
and hours of work of employees of Respondent Michigan
Drywall under Respondent Michigan Drywall's collective-
bargaining agreements with the Carpenters for purposes of
an audit of said books and records by the administrators of
the fringe benefit funds.
Commencing on or about December 20, 1976, and
continuing to date, Respondents have refused to furnish
the Carpenters with the requested information set forth in
the foregoing paragraph.3
The parties stipulated that at all material times herein
Respondent Mullins "on occasion paid to employees doing
work in Michigan under the jurisdiction of the Carpenters'
District Council, the Charging Party in one case, and the
Painters' District Council, the Charging Party in another
case, checks from an Alabama checking account and not
paid fringe benefits on the basis of those checks."
Respondent Mullins testified that the purpose of Re-
spondent M & D was "to use its books to pay Michigan
I The foregoing facts are allegations in the complaint which were
admitted by Respondents in their answers.
122
MICHIGAN DRYWALL CORPORATION
Drywall Corporation employees money for over 40 hours a
week worked" and that he "established the management
functions of M & D." The money used by Respondent M
& D to pay overtime for Michigan Drywall employees was
obtained from Michigan Drywall. It further appears that
all parties agree that fringe benefits are payable on
overtime earnings as well as straight time earnings; 4
nevertheless fringe benefits were not paid on Michigan
Drywall employees' overtime earnings in conformity with
the collective-bargaining agreements.
Based on the foregoing admitted facts and the entire
record in this case, it is found that since on or about
December 31, 1973, the date of its incorporation, until on
or about October 14, 1976, the date of its dissolution,
Respondent M & D became and continued to be an agent
of Respondent Michigan Drywall and Respondent Mullins
and that Respondent Mullins was and is the real employer,
the alter ego of Respondents Michigan Drywall and M &
D. See Local Union No. 103, International Association of
Bridge, Structural and Ornamental Iron Workers (Higdon
Contracting Company, Inc.), 216 NLRB 45 (1974), and cases
therein cited.
The foregoing detailed relevant information which the
Unions sought was needed by the Unions for the proper
performance of their duties as exclusive bargaining repre-
sentatives. The refusal of Respondents to allow the Unions
access to such information violated Section 8(aX5) and (1)
of the Act. See Murray Bagdasarian d/b/a Michael Rossi
Carpet Co., 208 NLRB 748 (1974); N.LR.B. v. Acme
Industrial Company, 385 U.S. 432, 435-436 (1967); Temple-
Eastex, Incorporated, 228 NLRB 203 (1977).
As noted under the terms of the agreements aforesaid
Michigan Drywall was required to pay fringe benefits
based on overtime worked as well as straight time. Indeed a
subterfuge was employed to conceal the nonpayment of the
fringe benefits which were required by the agreements.
Obviously, this type of chicanery ought not to be
condoned. Moreover, the refusal to pay fringe benefits as
dictated by the bargaining agreements on employees'
overtime earnings resulted in a mid-term modification of
the agreements in violation of Section 8(d) of the Act and
warrants a finding that Respondents engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act. Papercraft Corporation, 212 NLRB 240, 241
(1974), see particularly fn. 3; Tony De Clue, an Individual
d/b/a Liberty Cleaners, etc., 227 NLRB 1296 (1977).
CONCLUSIONS OF LAW
i. The Respondents are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. The units set forth in section III, above, constitute
appropriate units for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Unions have been at all times material herein
the exclusive representatives of the employees in their
4 The Painters contract requires the employer's contribution to the
Painters' Union Deposit Fund for each hour worked.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National labor Relations Board. the findings.
respective appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to furnish the Unions with information
concerning the payment of fringe benefits on behalf of the
Michigan Drywall employees in the appropriate units set
forth above, Respondents have refused to bargain collec-
tively with the Unions in violation of Section 8(a)(5) of the
Act, and thereby engaged in and are engaging in unfair
labor practices proscribed by Section 8(aXl) of the Act.
6. Respondents' refusal to pay fringe benefits based on
overtime worked by Michigan Drywall employees resulted
in a midterm modification of the agreements with the
Unions in violation of Section 8(d) of the Act and
constitutes a violation of Section 8(a)(l) and (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of Section 8(aXI) and (5) of the
Act, it is recommended that they cease and desist
therefrom and that they take certain affirmative action
designed to effectuate the policies of the Act. Having found
that Respondents violated Section 8(a)(5) of the Act by
refusing to furnish to the Unions information concerning
fringe benefits, it is recommended that Respondents be
ordered to furnish to the Unions, respectively, or their
agents, in respect to the employees covered by their
contracts with the Michigan Drywall Corporation, all
payroll records, ledger cards, and all canceled checks
issued said employees employed by Michigan Drywall
Corporation, irrespective of whether said checks were
issued by Respondents Michigan Drywall Corporation, M
& D Drywall, Inc., or James F. Mullins or came from any
other checking account under the control of Respondents.
Since Respondents also unlawfully refused to pay Michi-
gan Drywall employees fringe benefits based on overtime
earnings in conformity with the contracts with the Unions,
it is recommended that Respondents be ordered to make
the fringe benefit contributions earned on overtime in
conformity with the contracts, together with interest
computed in conformity with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact.
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 5
The Respondents, Michigan Drywall Corporation, M &
D Drywall, Inc., and James F. Mullins, Southfield,
Michigan, their officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted bN the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Refusing to bargain collectively with the Unions
herein as the exclusive bargaining representatives of its
employees in the appropriate units set forth below by
refusing to furnish the Unions or their agents information
concerning the payment of fringe benefits to its employees
in the appropriate unit in conformity with the agreements
between the Unions and Michigan Drywall Corporation.
The appropriate units are:
All journeymen and apprentice tapers employed by
Michigan Drywall Corporation including foremen
supervising employees directly on the job, but exclud-
ing other supervisors and guards as defined in the Act.
All journeymen and apprentice carpenters and
joiners employed by Michigan Drywall Corporation
including foremen supervising employees directly on
the job, but excluding other supervisors and guards as
defined in the Act.
(b) Refusing to bargain collectively with the Unions as
the exclusive representative of the employees in the
appropriate unit set out above by refusing to make fringe
benefit contributions earned on overtime for the employees
in said units in conformity with the contracts between the
Union and Michigan Drywall Corporation.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the National Labor Relations Act,
as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish to the Unions, respectively, with respect to
employees covered by their contracts with Michigan
6 In the event that the Board's 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 l.abor Relations Board" shall read "Posted Pursuant
Drywall Corporation, all payroll records, ledger cards, and
all canceled checks issued the employees employed by
Michigan Drywall Corporation, irrespective of whether
said checks were issued by Michigan Drywall Corporation,
M & D Drywall, Inc., or James F. Mullins or came from
any other source under the control of Respondents.
(b) Make the fringe benefit contributions earned on
overtime in conformity with the contracts between the
Union and the Michigan Drywall Corporation, together
with interest computed in conformity with the formula
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of fringe benefits due
under the terms of this Order.
(d) Post at the Southfield, Michigan, establishment of the
Michigan Drywall Corporation, copies of the attached
notice marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region 7,
after being duly signed by Respondents' representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, 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.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
124