Paint America Services

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 41 (N.L.R.B. 2004)

343 NLRB No. 41
Paint America Services, Inc. and District Council
22, International Union of Painters and Allied
Trades, AFL–CIO, CLC. Case 7–CA–47564
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
WALSH AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charge filed by the Union on June 7 and July 1,
2004, respectively, the General Counsel issued the com-
plaint on August 9, 2004, against Paint America Ser-
vices, Inc., the Respondent, alleging that it has violated
Section 8(a)(1), (3), and (5) of the Act. The Respondent
failed to file an answer.
On September 10, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On Sep-
tember 14, 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 response. 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 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 August 23, 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 August 25, 2004, notified the Respondent that
unless an answer was received by September 3, 2004, 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
At all material times, the Respondent, a corporation
with an office and place of business in Saline, Michigan,
has been engaged in the construction industry as a paint-
ing contractor.
During calendar year 2003, a representative period, the
Respondent, in conducting its painting operations de-
scribed above, purchased and received at its Saline,
Michigan facility, goods and materials valued in excess
of $50,000 directly from other enterprises, including The
Sherwin-Williams Company, located within the State of
Michigan, each of which other enterprises had received
those goods directly from points outside the State of
Michigan.
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 District Council 22, International
Union of Painters and Allied Trades, AFL–CIO, CLC,
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since at least 1998 and at all material times, the Union
has been the limited exclusive collective-bargaining rep-
resentative of various employees employed by the Re-
spondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which was effective from June 1, 1998 through May
31, 2004, and which contains a grievance-arbitration
procedure.
The employees described in article 1, section 3 of the
collective-bargaining agreement constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
At all material times since at least 1998, based on Sec-
tion 8(f) of the Act, the Union has been the limited ex-
clusive representative of the unit.
At all material times, the following individuals held
the positions set forth opposite their 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:
Jamile Randazzo President
Sal Randazzo Manager
About May 10, 2004, the Respondent discharged its
employee George Lancaster.
The Respondent discharged Lancaster because he en-
gaged in activities on behalf of the Union and in con-
certed activities, and to discourage employees from en-
gaging in such activities.
About May 20, 2004, the Union, in writing, requested
that the Respondent furnish it with the following:
(1) A list of past and present employees for the
past 12 months, including names, addresses, and
phone numbers.
(2) A list of all of the Respondent’s jobsites
within the Union’s jurisdiction as described by the
collective-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the limited exclusive collective-bargaining representa-
tive of the unit employees.
Since about May 20, 2004, the Respondent has failed
and refused to furnish the Union with the information
requested by it.
CONCLUSIONS OF LAW
1. By discharging employee George Lancaster, the Re-
spondent has discriminated in regard to the hire or tenure
or terms and conditions of employment of its employees,
thereby discouraging membership in a labor organiza-
tion, in violation of Section 8(a)(3) and (1) of the Act.
2. By failing and refusing to furnish the Union with the
information requested by it on about May 20, 2004, the
Respondent has failed and refused to bargain collectively
and in good faith with the limited exclusive collective-
bargaining representative of its unit employees, in viola-
tion of Section 8(a)(5) and (1) of the Act.
3. The Respondent’s unfair labor practices affect
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)(3)
and (1) of the Act by discharging George Lancaster, we
shall order the Respondent to offer him full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously
enjoyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to remove from
its files all references to the unlawful discharge of
George Lancaster, and to notify him in writing that this
has been done and that the discharge will not be used
against him in any way.
Further, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing and refusing to furnish
the Union with information that is necessary and relevant
to its role as the limited exclusive bargaining representa-
tive of the unit employees, we shall order the Respondent
to furnish the Union with the information it requested on
about May 20, 2004.
ORDER
The National Labor Relations Board orders that the
Respondent, Paint America Services, Inc., Saline, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in ac-
tivities on behalf of District Council 22, International
Union of Painters and Allied Trades, AFL–CIO, CLC, or
any other labor organization, or because they engage in
concerted activities.
(b) Failing and refusing to furnish the Union with in-
formation that is relevant and necessary to the perform-
ance of its duties as the limited exclusive collective-
bargaining representative of the employees described in
article 1, section 3 of the parties’ June 1, 1998—May 31,
2004 collective-bargaining agreement.
(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) Within 14 days from the date of this Order, offer
George Lancaster full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
(b) Make whole George Lancaster for any loss of earn-
ings and other benefits suffered as a result of his unlaw-
ful discharge, with interest, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files all references to the unlawful discharge of
George Lancaster, and within 3 days thereafter, notify
him in writing that this has been done and that the unlaw-
ful discharge will not be used against him in any way.
(d) Furnish the Union with the information it requested
on about May 20, 2004.
(e) 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.
(f) Within 14 days after service by the Region, post at
its facility in Saline, Michigan, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on

1 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-
PAINT AMERICA SERVICES 3
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 10, 2004.
(g) 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.
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 vio-
lated 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

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.”
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge employees because they en-
gage in activities on behalf of District Council 22, Inter-
national Union of Painters and Allied Trades, AFL–CIO,
CLC, or any other labor organization, or because they
engage in concerted activities.
WE WILL NOT fail and refuse to furnish the Union with
information that is relevant and necessary to the per-
formance of its duties as the limited exclusive collective-
bargaining representative of the employees described in
article 1, section 3 of our June 1, 1998—May 31, 2004
collective-bargaining agreement with the Union.
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 George Lancaster full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make whole George Lancaster for any loss of
earnings and other benefits suffered as a result of his
unlawful discharge, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful discharge of George Lancaster, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done, and that the unlawful discharge will not be used
against him in any way.
WE WILL furnish the Union with the information it re-
quested on about May 20, 2004.
PAINT AMERICA SERVICES, INC.