Pittore

National Labor Relations Board - Board Decisions

Feb 4, 2003

338 N.L.R.B. 101 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mary Beth Panetta, d/b/a Pittore and its alter ego
Gerardo Panetta, d/b/a Pittore and Local Union
201, District Council 9, International Brother-
hood of Painters and Allied Trades, AFL–CIO.
Case 3–CA–23778
February 4, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on August 20, 2002, the General Counsel issued
the complaint on September 30, 2002, against Mary Beth
Panetta, doing business as Pittore (Pittore I) and its alter
ego Gerardo Panetta, also doing business as Pittore (Pit-
tore II), collectively the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act. The Respon­
dent failed to file an answer.
On November 13, 2002, the Ge neral Counsel filed a
Motion for Summary Judgment with the Board. On No­
vember 15, 2002, 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 Summary 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 states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo­
tion for Summary Judgment disclose that the Region, by
letter dated October 18, 2002, notified the Respondent
that unless an answer was received by October 28, 2002,
a Motion for Summary Judgment would be filed.1
1 The complaint and letter, which were sent by certified mail, were
returned marked “unclaimed.” Respondent’s failure or refusal to claim
certified mail or to provide for receiving appropriate service cannot
serve to defeat the purposes of the Act. A.S.B. Cloture, Ltd., 313 NLRB
1012 fn.1 (1994); Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986). The letter was also sent by regular mail and was never re-
turned. The failure of the Postal Service to return documents sent by
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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Pittore I has been
owned by Mary Beth Panetta, a sole proprietorship, do­
ing business as Pittore, with its principal place of busi­
ness located at 3 Lisa Court, Albany, New York, and at
various jobsites, and has been engaged in the building
and construction industry as a painting contractor.
At all material times since on or about June 4, 2001,
Respondent Pittore II has been owned by Gerardo Pa­
netta, a sole proprietorship, also doing business as Pit-
tore, with its principal place of business located at 3 Lisa
Court, Albany, New York, and at various jobsites, and
has been engaged in the building and construction indus­
try as a painting contractor.
Since on or about June 4, 2001, Respondent Pittore II
has been engaged in the same business operations as
those engaged in by Respondent Pittore I, and has been
operating under the same name, with the same manage­
ment, location, business purpose, equipment, and super-
visors as Respondent Pittore I.
On or about June 4, 2001, Respondent Pittore II was
established by Gerardo Panetta as a disguised continua­
tion of Respondent Pittore I.
Based on the operations and conduct described above,
Respondents Pittore I and Pittore II are, and have been at
all material times, alter egos and a single employer
within the meaning of the Act.
During the 12-month period preceding the issuance of
the complaint, Respondent Pittore II, in conducting its
business operations as described above, performed ser­
vices valued in excess of $50,000 for Zandri Construc­
tion Corp., an enterprise 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 organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Gerardo Panetta has been a su­
pervisor of Respondent within the meaning of Section
2(11) of the Act and an agent of Respondent within the
meaning of Section 2(13) of the Act.
regular mail establishes actual receipt. Lite Flight, 285 NLRB 647, 650
(1987).
338 NLRB No. 101
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The following employees of Respondent constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All journeypersons and apprentice painters, wall cover­
ers, drywall finishers, wood finishers, sandblasters,
skim coaters and lead abatement workers employed by
Respondent, excluding guards and supervisors as de-
fined in the Act and all other employees.
On or about July 19, 2000, Respondent Pittore I, an
employer engaged in the building and construction in­
dustry as described above, granted recognition to the
Union as the exclusive collective-bargaining representa­
tive of the unit, by executing a collective-bargaining
agreement by and between the Union and Eastern Con-
tractors Association, Inc., without regard to whether the
majority status of the Union was ever established under
the provisions of Section 9(a) of the Act. The collective-
bargaining agreement is effective by its terms from May
1, 2000 to April 30, 2003. At all material times, based
on Section 9(a) of the Act, the Union has been the lim­
ited exclusive representative of the unit.2
Since about February 20, 2002, and continuing to date,
Respondent has ceased to continue in force and effect the
collective bargaining agreement and has unilaterally ab­
rogated, rescinded and repudiated said collective-
bargaining agreement.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been failing and refusing to bargain collectively
with the limited exclusive collective-bargaining represen­
tative of the employees in the unit in violation of Section
8(a)(5) and (1) of the Act, and has thereby engaged in
unfair labor practices affecting 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, we shall
order the Respondent to honor the terms and conditions
of the 2000–2003 agreement between the Union and the
Association, and any automatic renewal or extension of
it, and to make whole the unit employees for any loss of
2 The complaint alleges that the Respondent is a construction indus­
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, 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 em­
ployees for the period covered by the contract. See, e.g., A.S.B. Clo­
ture, Ltd., 313 NLRB 1012 (1994).
earnings and other benefits they may have suffered as a
result of the Respondent’s failure to abide by the agree­
ment since February 20, 2002. In addition, we shall or­
der the Respondent to make whole the unit employees by
making any contractually required fringe benefit fund
contributions that have not been made on behalf of em­
ployees since February 20, 2002, including any addi­
tional amounts applicable to such delinquent payments in
accordance with Merryweather Optical Co., 240 NLRB
1312, 1316 (1979).3 Further, the Respondent shall reim­
burse the unit employees for any expenses ensuing from
its failure to make the required contributions since Feb­
ruary 20, 2002, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). All payments to unit employees shall be
computed in the manner set forth in Ogle Protection Ser­
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Mary Beth Panetta, doing business as Pit-
tore and its alter ego Gerardo Panetta, also doing busi­
ness as Pittore, Albany, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to comply with its May 1,
2000–April 30, 2003 collective-bargaining agreement,
and any automatic renewal or extension of the agree­
ment, with Local Union 201, District Council 9, Interna­
tional Brotherhood of Painters and Allied Trades, AFL–
CIO, as the limited exclusive collective-bargaining rep­
resentative of the employees in the following unit, by
unilaterally abrogating, rescinding, and repudiating the
agreement. The unit is: All journeypersons and appren­
tice painters, wall coverers, drywall finishers, wood fin­
ishers, sandblasters, skim coaters and lead abatement
workers employed by Respondent, excluding guards and
supervisors as defined in the Act and all other employ­
ees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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.
3 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
PITTORE 3
(a) Honor the terms of its May 1, 2000–April 30, 2003
written agreement with the Union, and any automatic
renewal or extension of it.
(b) Make whole the unit employees for any loss of
earnings and benefits incurred as a result of its failure to
honor the written agreement with the Union, or any
automatic renewal or extension of it, since February 20,
2002, with interest, as described in the remedy section of
this decision.
(c) Make all the contractually required benefit fund
contributions, if any, that have not been made on behalf
of unit employees since February 20, 2002, and reim­
burse unit employees for any expenses ensuing from its
failure to make the require payments, in the manner set
forth in the remedy section of this decision.
(d) 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 elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Albany, New York, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 3,
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 February 20, 2002.
(f) 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.
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 Na­
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.
Dated, Washington, D.C., February 4, 2003
Wilma B. Liebman, Member
Peter C. Schaumber, Member
R. Alexander Acosta, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to comply with our May
1, 2000–April 30, 2003 collective-bargaining agreement,
and any automatic renewal or extension of the agree­
ment, with Local Union 201, District Council 9, Interna­
tional Brotherhood of Painters and Allied Trades, AFL–
CIO, as the limited exclusive collective-bargaining rep­
resentative of the employees in the following unit, by
unilaterally abrogating, rescinding, and repudiating the
agreement. The unit is: All journeypersons and appren­
tice painters, wall coverers, drywall finishers, wood fin­
ishers, sandblasters, skim coaters and lead abatement
workers employed by Respondent, excluding guards and
supervisors as defined in the Act and all other employ­
ees.
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.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL honor the terms of our May 1, 2000–April 30,
2003 written agreement with the Union, and any auto­
matic renewal or extension of it.
WE WILL make whole unit employees for any loss of
earnings and benefits incurred as a result of our failure to
honor the written agreement, and any automatic renewal
or extension of it, since February 20, 2002, with interest.
WE WILL make all the contractually required benefit
fund contributions, if any, that have not been made on
behalf of unit employees since February 20, 2002, and
reimburse unit employees for any expenses ensuing from
its failure to make the require payments, with interest.
MARY BETH PANETTA, D/B/A PITTORE AND ITS
ALTER EGO GERARDO PANETTA,D/B/A PITTORE