Painters Local 669

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1181 (N.L.R.B. 1977)

PAINTERS LOCAL 669
Painters Local 669, a/w International Brotherhood of
Painters and Allied Trades, AFL-CIO and Adam
H. Newell and Jim and Bud Painting and Drywall,
Inc., Party in Interest. Case 25-CB-3000
October 13, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on May 2, 1977, by Adam H.
Newell and duly served on Painters Local 669, a/w
International Brotherhood of Painters and Allied
Trades, AFL-CIO, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 25,
issued a complaint and notice of hearing on June 25.
1977, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(1)(A) and (2) and 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 all parties to this proceeding includ-
ing Respondent. Respondent failed to file an answer
to the complaint.
On August 1, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 5,
1977, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent did not file a response to the Notice To Show
Cause and therefore the allegations in the complaint
and Motion for Summary Judgment stand uncontro-
verted.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides:
The respondent shall, within 10 days 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 complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
232 NLRB No. 180
the complaint, if no answer is filed, or any
allegation in the complaint not specifically 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
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on
Respondent herein specifically states that unless an
answer to the complaint is filed within 10 days of
service thereof "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true and
may be so found by the Board." Further, according
to the uncontroverted allegations of the Motion for
Summary Judgment, counsel for General Counsel
advised Respondent by registered mail, dated July
22, 1977, that unless an answer was filed, a Motion
for Summary Judgment would be filed on July 29.
1977. As noted above, Respondent failed to file an
answer to the complaint, and now has failed to
respond to the Notice To Show Cause.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to file a
timely answer, the allegations of the complaint are
deemed admitted and are found to be true, and we
shall grant the General Counsel's Motion for
Summary Judgment. On the basis of the entire
record, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Jim and Bud Painting and Drywall, Inc., herein
called the Employer, is now and has been at all times
material herein a corporation duly organized under
the laws of the State of Indiana, with its principal
office and place of business in Muncie, Indiana,
where it is engaged in the business of performing
painting and drywall services for commercial cus-
tomers. During the past year, in the course and
conduct of its business operations, the Employer
purchased, transferred, and delivered to its facility
goods and materials valued in excess of $50,000,
which were transported to its facility from, and
received from, other enterprises in the State of
Indiana, which had received those goods and
materials directly from States other than Indiana.
The Employer is a member of the North Central
Chapter of Painting and Decorating Contractors of
America, herein called the Association, which is now,
and has been at all times material herein, an
organization that represents its member employers,
including the Employer, in collective bargaining with
Respondent and enters into and services collective-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreements with Respondent. Each of the
member employers annually, in the course and
conduct of their respective business operations as
painting contractors in Indiana, purchases, transfers,
and delivers to their respective places of business in
Indiana goods and materials valued in excess of
$50,000, which are transported directly from States
other than Indiana.
We find, on the basis of the foregoing, that the
Employer, the member employers of the Association,
and the Association are now and have been at all
times material herein, each individually and all
collectively, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Painters Local 669, a/w International Brotherhood
of Painters and Allied Trades, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(b)(2) Charge
Commencing on or about early April 1977 and
until on or about April 20, 1977, Respondent
attempted to cause and, on or about April 20, 1977,
did cause the Employer to discharge Adam H.
Newell because he instigated union activities directed
against the leadership of William E. Weaver, and
against Weaver's attempts to retroactively require
members to pay larger initiation fees.
Accordingly, we find that, by the conduct de-
scribed above, Respondent has engaged in and is
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b)(2) and
Section 2(6) and (7) of the Act.
B. The 8(b)(1)(A) Charge
In addition to the conduct described above in
section III, A, Respondent, through its agent,
William E. Weaver, committed the following acts:
1. On or about early April 1977, Respondent, by
its agent, William E. Weaver, at Muncie, Indiana,
threatened employees of the Employer that Respon-
dent could have employees killed for a price and
implied that such would be done if Adam H. Newell
continued to work.
2. On or about early April 1977, Respondent, by
its agent, William E. Weaver, at Muncie, Indiana,
threatened to file internal union charges against
employees of the Employer if they worked with
Adam H. Newell.
3. On or about April 4 and 18, 1977, at Chester-
field, Indiana, Respondent, by its agent, William E.
Weaver, filed internal union charges against employ-
ees of the Employer because they worked with Adam
H. Newell.
4. On or about April 8, 1977, Respondent, by its
agent, William E. Weaver, at Muncie, Indiana,
threatened Adam H. Newell that Respondent would
attempt to cause and cause him to lose his job,
because he refused to pay discriminatory and greater
initiation fees than required of others.
5. On or about mid-April 1977, at Muncie,
Indiana, Respondent, by its agent, William E.
Weaver, threatened to file charges against officers of
the Employer if the Employer continued to employ
Adam H. Newell, with the purpose of attempting to
cause the Employer to discharge Adam H. Newell.
6. At all times from May 9 to June 6, 1977,
Respondent, by its agent, William E. Weaver, has
adamantly refused to permit Adam H. Newell to pay
the same initiation fee as required of other members,
because Adam H. Newell filed charges with the
Board.
7. On or about May 9, 1977, at Chesterfield,
Indiana, Respondent, by its agent, William E.
Weaver, threatened employees of the employer that
internal union charges against them would be
reinstituted if they worked with Adam H. Newell,
threatened to bring conspiracy charges against Adam
H. Newell, and threatened other unspecified reprisals
because he filed charges with, and gave testimony to,
the Board.
Accordingly, we find that, by the conduct de-
scribed above, Respondent did restrain and coerce,
and is restraining and coercing, employees in the
exercise of the rights guaranteed in Section 7 of the
Act, and thereby did engage in, and is engaging in,
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and Section 2(6) and
(7) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) we shall order
it to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Respondent discriminated against Newell by caus-
ing the Employer to terminate him on or about April
20, 1977. Therefore, it will be ordered that Respon-
dent notify the Employer, in writing, and furnish a
copy of said notice to Newell, that it has withdrawn
its objection to Newell's employment without preju-
dice to his seniority and other rights and privileges,
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PAINTERS LOCAL 669
and that it recommends such unconditional rein-
statement. In addition, Respondent shall make
Newell whole for any loss of pay or other benefits he
may have suffered by reason of the unlawful
discrimination against him, by paying to him a sum
of money equal to that which he would have earned
from the date of his termination on or about April
20, 1977, to 5 days after the date Respondent notifies
the Employer and Newell, in writing, that it has no
objections to the employment of Newell, and that it
recommends his unconditional reinstatement, less his
net earnings elsewhere during said period. Such loss
of earnings and the interest thereon shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).'
Further, because the unfair labor practices commit-
ted by Respondent go to the very core of employee
rights protected by the Act, we order Respondent to
cease and desist in any other manner from restrain-
ing and coercing its members in the exercise of rights
guaranteed them by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Jim and Bud Painting and Drywall, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Painters Local 669, a/w International Brother-
hood of Painters and Allied Trades, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By the acts described in section III, A, above,
Respondent attempted to cause and did cause the
Employer to discriminate against Adam H. Newell in
violation of 8(a)(3) of the Act and thereby did engage
in and is engaging in unfair labor practices within the
meaning of Section 8(b)(2) of the Act.
4. By the acts described in section II, B, above,
Respondent did restrain and coerce, and is restrain-
ing and coercing the employees of the Employer in
the exercise of the rights guaranteed in Section 7 of
the Act, and thereby did engage in and is engaging in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
5. 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
Relations Board hereby orders that the Respondent,
See, generally. Isis Plumbing & Heating Co., 138 N LRB 716(1962).
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
Painters Local 669, a/w International Brotherhood
of Painters and Allied Trades, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to cause the discharge of Adam H.
Newell or any other employee for nonpayment of
discriminatory initiation fees greater than those
normally required of members.
(b) Attempting to cause or causing the Employer to
discriminate against Adam H. Newell or any other
employee in violation of Section 8(aX3) of the Act.
(c) Refusing to permit Adam H. Newell to pay the
same initiation fee as required of other members or
threatening to bring conspiracy charges or take other
reprisals against him because he filed charges with
and gave testimony to the Board.
(d) Threatening the employees of the Employer
with violence or the filing of internal union charges
because they worked with Adam H. Newell.
(e) In any other manner restraining or coercing the
employees of the Employer in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds necessary to effectuate the purposes
of the Act:
(a) Make whole Adam H. Newell for any loss of
pay he may have suffered by reason of the discrimi-
nation practiced against him in the manner set forth
in the "Remedy" section of this Decision.
(b) Notify Jim and Bud Painting and Drywall, Inc.,
in writing, with a copy to Adam H. Newell, that it
has no objection to the hiring or employment of
Newell, and recommends that he be unconditionally
reinstated to his former job or, if it no longer exists,
to a substantially equivalent position, without loss of
benefits of seniority.
(c) Post at all places where notices to members are
posted, copies of the attached notice marked "Ap-
pendix." 2 Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by the Union's representative, shall be
posted by the Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Union
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Forthwith mail to the Regional Director for
Region 25 signed copies of said notices for posting by
Jim and Bud Painting and Drywall, Inc., if it be
willing, in places where notices to its employees are
customarily posted.
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."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to cause the discharge of
Adam H. Newell or any other employee for
nonpayment of discriminatory initiation fees
greater than those normally required of members.
WE WILL NOT attempt to cause or cause the
Employer, Jim and Bud Painting and Drywall,
Inc., to discriminate against Adam H. Newell or
any other employee in violation of Section 8(a)(3)
of the Act.
WE WILL NOT refuse to permit Adam H. Newell
to pay the same initiation fee as required of other
members, or threaten to bring conspiracy charges
against him, or take other reprisals, because he
filed charges with and gave testimony to the
Board.
WE WILL NOT threaten the employees of the
Employer with violence or the filing of internal
union charges because they worked with Adam
H. Newell.
WE WILL NOT in any other manner restrain or
coerce the employees of the Employer in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL make whole Adam H. Newell for any loss
of pay, with interest, suffered by him by reason of the
discrimination practiced against him.
WE WILL notify Jim and Bud Painting and
Drywall, Inc., in writing, with a copy to Adam H.
Newell, that we have no objection to the hiring or
employment of Adam H. Newell and will recom-
mend his unconditional reinstatement to his
former job or, if it no longer exists, to a
substantially equivalent position without loss of
benefits or seniority.
PAINTERS LOCAL 669,
A/W INTERNATIONAL
BROTHERHOOD OF
PAINTERS AND ALLIED
TRADES, AFL-CIO
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