Schultz Painting & Decorating Co.

National Labor Relations Board - Board Decisions

Mar 2, 1973

202 N.L.R.B. 111 (N.L.R.B. 1973)

SCHULTZ PAINTING & DECORATING CO.
Edward E. Schultz d/b/a Schultz Painting & Decorat-
ing Co. and Painters Local Union No. 171, affiliat-
ed with International Brotherhood of Painters &
Allied Trades. Case 27-CA-3604
March 2, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 28, 1972, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
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 Respondent's
exceptions and brief and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
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 and
hereby orders that Respondent Edward E. Schultz
d/b/a Schultz Painting & Decorating Co., and its
alter ego, Rampart Painting Co., Inc., their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 In adopting the Administrative Law Judge' s Decision , we note that his
In 2 indicates that the Board's Decision in Charles T Reynolds, Sr, d/b/a
Charles T Reynolds Box Company appears in Volume 135, whereas the
correct citation is 139 NLRB 519
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This
proceeding was heard before me in Colorado Springs,
Colorado, on October 3 and 4 , 1972, pursuant to due
notice . The complaint , which was issued August 18, 1972,
pursuant to a charge filed July 7, 1972, alleges violations of
Sections 8(a) (1) and (5) of the National Labor Relations
Act, as amended , herein called the Act.
All parties were afforded full opportunity to appear, to
introduce evidence , to examine and cross-examine witness-
es, to argue orally on the record , and to file briefs. A brief
was filed by the General Counsel . Upon the entire record
in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
111
Prior to June 1, 1972, Edward E. Schultz d/b/a Schultz
Painting & Decorating Co., herein called Respondent, was
engaged in business as a painting contractor in the
Colorado Springs, Colorado, area. Respondent operated
said business from his residence which was located at Box
145, Lytle Star Route, Colorado Springs. In 1970, Schultz
became a member of the Painting and Decorating
Contractors of America, Colorado Springs Chapter, herein
called PDCA, an association of employers engaged in
painting and decorating. The PDCA exists, in substantial
part, for the purpose of representing its employer-members
in collective bargaining, and participating in the negotia-
tion, execution, and administration of collective-bargaining
agreements on behalf of its employer-members with the
Union herein. The employer-members of PDCA, on whose
behalf PDCA has bargained with the Union, annually
purchase and receive goods and materials valued in excess
of $50,000 which are shipped to such employer-members
from points located outside the State of Colorado.
Accordingly , it is found that at all times material to this
proceeding, PDCA and its employer-members, including
Respondent, have been employers engaged in a business
which affects commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that the assertion of
jurisdiction is warranted.
Rampart Painting Co., Inc., herein called Rampart, was
incorporated under the laws of Colorado on April 14, 1971,
for the purpose of executing painting contracts, and,
during April 1971, commenced performing work pursuant
to a painting subcontract, which work was not yet
completed at the time of the hearing in this matter. In view
of the finding herein below that Rampart is the alter ego of
Respondent, it appears that, for the purposes of this
proceeding, it is appropriate to find that Rampart is
engaged in commerce within the meaning of the Act. In
substance, I find below that Respondent's business has
been continued as a corporation instead of a sole
proprietorship.
II. THE LABOR ORGANIZATION INVOLVED
Painters Local Union No. 171, affiliated with Interna-
tional Brotherhood of Painters & Allied Trades, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent constitutes
a part of a multiemployer unit; that the Union is the
statutory representative of employees in such unit; that on
or about April 15, 1972, PDCA and the Union became
parties to a collective-bargaining agreement covering
employees in such unit; that since on or about June 1,
1972, Respondent has refused to bargain with the Union
by failing and refusing to accept and conform with the
terms and conditions of said agreement; and that Respon-
dent has attempted to evade its obligations under said
agreement by continuing its business operations under its
202 NLRB No. 23
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alter ego, Rampart . Respondent contends , in effect, that
since he has terminated all PDCA activity and ceased
operating as a painting contractor , he is not a party to a
collective -bargaining agreement with the Union . Contend-
ing that his status with Rampart is that of an employee,
Respondent denies that he has continued business under
the name of Rampart as an alter ego. Thus, the main issues
are whether Respondent made a timely withdrawal from
multiemployer bargaining and, if not , whether Rampart is
the alter ego of Respondent.
A. The PDCA and its Representation of Respondent
Respondent commenced doing business as a painting
contractor in approximately June 1970. The operation was
conducted from his residence at Box 145, Lytle Star Route,
Colorado Springs, Colorado. Respondent's wife, LaVonda
Schultz, and their two children, ages 5 and 3, also occupied
the residence which was ownedjointly by Respondent and
his wife. Within a few months after commencing business,
Respondent became a member of PDCA, and, by virtue of
such membership, a party to the multiemployer collective-
bargaining agreement then in effect between PDCA and
the Union. In December 1970, Respondent was elected
secretary-treasurer of PDCA, a position which he, occupied
until sometime in June 1972 when he surrendered the
records of the association to its president. The first
collective-bargaining agreement to which Respondent was
party expired May 31, 1972. Sometime in February 1972,
Respondent was appointed by the president of PDCA as a
member of the committee to negotiate a new collective-
bargaining agreement which was to succeed the one due to
expire at the end of May. While there is a dispute as to
whether Respondent attended one or two negotiating
meetings, Respondent admits he attended one meeting
which he believed to be the second. Those negotiations
culminated in an agreement between PDCA and the
Union, which became effective June 1, 1972. Respondent
testified that he did not resign from PDCA, but that he did
not pay dues to the association for 1972 and has ceased to
participate in it. Respondent does not dispute the appropri-
ateness of the multiemployer unit, which I find to be
appropriate, and admits he was covered by the terms of the
collective-bargaining agreement between PDCA and the
Union which expired May 31, 1972. Respondent has
declined to execute the most recent agreement on the
ground he terminated all PDCA activity on or about April
15, 1972, and has not engaged in business as a painting
contractor since that date. Respondent does not contend
that he informed the Union that he was going to cease his
painting contracting business, or that he did not intend to
be bound by the multiemployer bargaining between PDCA
and the Union.
Section 8(d) of the Act expressly defines the duty "to
bargain collectively" to include "the execution of a written
contract incorporating any agreement reached if requested
by either party." See also H. J. Heinz Company v. N.L.R.B.,
311 U.S. 514, 526. The same requirement applies to a
multiemployer agreement reached with a union by an
authorized representative of the employer, acting on its
behalf. N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245,
247 (C.A. 2), cert. denied 385 U.S. 1005; N.L.R.B. v.
Jeffries Banknote Company, 281 F.2d 893, 896 (C.A. 9). The
circumstances under which an employer may withdraw
from a multiemployer unit are clearly enunciated in Retail
Associates, Inc., 120 NLRB 388, where the Board stated:
Among other things, the timing of an attempted
withdrawal from a multiemployer bargaining unit, as
Board cases show, is an important lever of control in
the sound discretion of the Board to insure stability of
such bargaining relationship. We would accordingly
refuse to permit the withdrawal of an employer or a
union from a duly established multiemployer bargain-
ing unit, except upon adequate written notice given
prior to the date set by the contract for modification, or
to the agreed-upon date to begin the multiemployer
negotiations. Where actual bargaining negotiations
based upon the existing multiemployer unit had begun,
we would not permit, except on mutual consent, an
abandonment of the unit upon which each side has
committed itself to the other, absent unusual circum-
stances.
Thus, whether or not Respondent had a duty to bargain
with the Union, and is bound by the negotiations between
PDCA and the Union, depends on the timeliness of his
attempt to withdraw from the multiemployer bargaining
unit.
I have found Respondent to be a part of the multiem-
ployer unit and covered by the terms of the collective-
bargaining agreement between PDCA and the Union
which expired May 31, 1972. Respondent was the secretary-
treasurer of PDCA until he relinquished that job
sometime in June 1972, after the new agreement was in
effect. He was a member of the PDCA committee to
negotiate the new agreement with the Union, and in fact
participated in at least one negotiation meeting. The
evidence fails to disclose any affirmative attempt by
Respondent to either withdraw from PDCA or to repudiate
the authority that he had apparently vested in the PDCA,
until he relinquished the secretary-treasurer's records after
the new agreement was in effect. Even then Respondent
did not notify the Union that he was withdrawing from the
multiemployer unit , nor is there any indication that the
Union either consented to or acquiesced in Respondent's
withdrawal. Accordingly , it is clear under settled Board
law that Respondent remained a part of the multiemployer
unit and bound by the June 1; 1972, agreement in the
absence of unusual circumstances. While Respondent does
not specifically plead "unusual circumstances," the answer
to the complaint denies that Respondent has been engaged
as a painting contractor since April 1972 or that he has any
affiliation with Rampart other than as an employee of that
corporation. The General Counsel, on the other hand,
contends that Respondent has not in fact ceased doing
business, but has attempted to evade its obligations under
the June 1, 1972, agreement by continuing business under
its alter ego, Rampart. For reasons set forth hereafter, I
find that Respondent's purported "going out of business"
is not the "unusual circumstance" contemplated by the
Board in the Retail Associates case.
B. The Formation of Rampart
Sometime in January 1971, Respondent advised Robert
SCHULTZ PAINTING & DECORATING CO. 113
Elliott, the Union's business manager and financial
secretary, that work was slow, and discussed with him the
use of the "improver classification" of painter on the
Gates-Brock housing project which was up for bidding.'
Mrs. Schultz also knew about the Gates-Brock project, and
in February or March informed her husband that she
intended to bid on the job and asked him to bid on it also.
Respondent informed her that most housing projects were
done by union contractors, to which she replied: "I'm
going to bid on the job anyway." Mrs. Schultz submitted a
bid in her own name which was on the basis of using
nonunion labor. While it is not clear whether Respondent
actually submitted a separate bid, the evidence discloses he
was observed by Elliott in March or April doing work on
the Gates-Brock model homes. In the meantime, Mrs.
Schultz was awarded the painting contract and proceeded
to arrange with Raymond S. Duitch, her attorney, for
Rampart's incorporation.
On April 14, 1971, the articles of incorporation of
Rampart were filed with the secretary of state of Colorado.
They recite the corporation's purpose to be "execution of
painting contracts." Mrs. Schultz is listed as the registered
agent, and the registered office is shown as Lytle Star
Route, Box 145, Colorado Springs, Colorado, that address
being, as before noted, the Schultz' residence and the
principal office and place of business of Respondent. The
three incorporators are listed as Mr. and Mrs. Schultz and
Mr. Duitch, all three of whom are also listed as the
corporation's three directors. Of the five shares of Rampart
stock issued, two are held by Mrs. Schultz and three by Mr.
Duitch, as trustee for the benefit of the two Schultz
children. Thereafter, the contract for the Gates-Brock
project was made in Rampart's name.
The initial capitalization for Rampart was furnished
entirely by Respondent in the form of a loan. No note was
given for the loan, nor did the loan draw interest.
Whenever Rampart needed additional capital to meet a
payroll, Respondent would loan the corporation more
money and Mrs. Schultz, who did the bookkeeping and
performed other duties for Respondent, wrote a check on
Respondent's bank account. Sometime in April 1971,
Respondent sold a 1961 Ford van to Rampart for $150 for
on-the-job storage use. This amount was added to the
amount of Respondent's loan to Rampart. On June 9,
1971, Respondent loaned another $150 to Rampart. Again,
no note was given in return. On June 9, 1972, Respondent
loaned Rampart another $150 from his business account.
Respondent testified that about December 1971, he sold all
of his painting equipment to Rampart with the exception
of a pickup truck. Mrs. Schultz testified that Rampart
purchased the equipment after June 1, 1972. I am
convinced, however, and find, that the sale of the
equipment occurred prior to June 1, 1972, and probably in
December 1971, for the following reason. Charging Party's
Exhibit 3, the check register summary for Rampart
covering the period from January 1 to April 18, 1972,
contains a number of adjustments to reclassify the
I The "improver classification" had recently been added to the
collective-bargaining agreement by way of an addendum. Apparently, to
enter the Union's apprenticeship program, an individual was required to be
a high school graduate and to pass a test. The "improver classification" was
distribution that Mrs. Schultz had made of the check
register. The first of such adjustments discloses the
establishment of an account payable to Respondent in the
amount of $2,092 "to record purchase from Ed Schultz of
equipment and tools on Mar. 1, 1972." Thus, it would
appear the transfer of Respondent's painting equipment
and tools to Rampart took place several months prior to
June 1 as testified to by Mrs. Schultz, and prior to the most
recent contract negotiations between PDCA and the
Union.
On or about January 8, 1972, Respondent resigned as a
director of Rampart, and was replaced by his father, Frank
B. Schultz, who resides in Albuquerque, New Mexico, and
is not active in the corporation. Respondent testified that
he resigned as a director because he was operating on a
union basis and Rampart was operating on a nonunion
basis, and he felt there was a conflict of interests. It is clear,
therefore, that the decision that Rampart would be
nonunion was made prior to its incorporation,'or, if after,
at a time when Respondent was in fact one of the directors.
C. Relationship Between Respondent and Rampart
The record discloses that Rampart obtained three jobs as
a painting contractor: the Gates-Brock project, which was
commenced in the spring of 1971; the Harloff Building in
August 1971; and a residence on North Tejon Street in
Colorado Springs in September 1972. The date the Gates-
Brock job commenced is not clear. Elliott testified that he
observed Respondent working on the model houses in
March or April 1971, and that he stated to Respondent at
that time, "it looks like you got the show houses," and that
Respondent replied affirmatively. Elliott testified, without
contradiction, that sometime later Respondent called him
and advised: "I lost the Gates-Brock project . . . . A
nonunion outfit got it. . . . Rampart Painting, or Ram-
page." Elliott replied that he had never heard of Rampart
before, and Respondent replied, "Neither have I." Both
Respondent and Mrs. Schultz affirmed the fact that prior
to June 1972, Respondent performed some work on the
Gates-Brock project as a subcontractor to Rampart, and
that there was no written agreement.
In August 1971, Rampart successfully bid a repainting
job on the Harloff Building. At the time the job was to
commence, Rampart's painting crew was busy on the
Gates-Brock job. Respondent testified that his wife asked
him if he wanted to do the job at a certain price, to which
he agreed. Mrs. Schultz testified that her husband asked if
he could do the job; that she asked him to give her a price,
which he did, and which she accepted. Regardless of which
version is true, the fact remains that Rampart subcontract-
ed the repainting of the Harloff Building to Respondent
without obtaining a competitive bid. Moreover, the
evidence discloses that Respondent was the only firm
Rampart subcontracted any business to.
In October 1971, Respondent had a contract to paint the
new gatehouses at Fort Carson. As Elliott drove by one of
the gatehouses, he noticed two men painting the interior
created to help those individuals with some painting experience , who could
not otherwise qualify for entry into the apprenticeship program, obtain
journeyman status after 2 years' training.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom he did not recognize. Upon inquiring, the men
informed him they were employees of Rampart and did
not belong to a union. Later that day, Elliott talked to
Respondent regarding the use of nonunion men on the job
and was informed by Respondent that he had "subbed"
thejob out to Rampart. Thereafter, Elliott filed a grievance
or complaint against Respondent pursuant to the collec-
tive-bargaining agreement , alleging that Respondent had
sublet the Fort Carson gatehouse job to Rampart and that
Respondent was "operating as a union and nonunion
contractor, with Mrs. Schultz as owner of the nonunion
company as a subterfuge to avoid compliance with" the
Union's contract. The PDCA filed a related grievance
against Respondent, and, accordingly, a joint committee
composed of PDCA and union representatives was
convened to consider the grievances . As a result of the
joint committee's conclusion that Respondent was operat-
ing Rampart as a "backdoor" operation, Respondent
advised the committee that "he would try his best to
absorb Rampart into Schultz Painting and Decorating."
The committee granted Respondent 30 days, and later an
additional 90 days, within which to do so. Instead,
according to Respondent's testimony, in December 1971,
he sold all of his equipment to Rampart, and, on January
8, 1972, resigned from the Rampart board of directors.
Although the record does not set forth the jobs which
Respondent may have had from October 1971 on,
Respondent testified that when he ceased operations at the
end of May 1972, he was in the completion stage of a job
painting the Evergreen Funeral Home. As Rampart owed
him money, he let Rampart finish the job. The amount of
the work done by Rampart, approximately $500, was
applied to Rampart's debt to Respondent.
-Commencing on June 1, 1972, Mr. Schultz became
Rampart's foreman in charge of the painting crew at a
salary of $250 per week. The foreman preceding Mr.
Schultz was paid $200 per week.
Rampart's only otherjob has consisted of the painting of
a residence in Colorado Springs in September 1972, shortly
before the hearing in this matter
Although Respondent admitted that Rampart was
organized for the purpose of providing a tax shelter and
building an inheritance for his minor children, at the
hearing he contended that he had lost interest in Rampart
and that his only interest now is in drawing his salary.
D. Concluding Findings
From its inception, Rampart was operated from Respon-
dent's business location which was also the Schultz'
residence. There was a single phone for both entities. For a
number of months, the phone bills were paid by Respon-
dent. Later, phone bills were debited to the loan payable
by Rampart to Respondent. The same is true of the house,
payments, payments on a truck, and utility bills. Neither
Rampart nor Respondent reimbursed the other for a
portion of such payments . Both entities were engaged in
the same type work , and the management remained
substantially the same. While Mrs. Schultz testified that
she does the estimating on all Rampart jobs, it is clear that
prior to Rampart's inception she helped figure the
estimates on Respondent's jobs. She also performed the
bookkeeping functions for both entities until sometime in
the fall of 1971 when they were turned over to an
accounting firm . Mrs. Schultz ordered supplies for Respon-
dent and delivered materials to Respondent 's jobs. She
performs the same functions for Rampart . Mrs. Schultz has
at all times had authority to sign checks , not only for
Rampart, but also for Respondent. When additional
money was needed to meet a Rampart payroll, Mrs.
Schultz wrote a check on Respondent's bank account. It is
clear from the evidence that , except for the estimating of
jobs which his wife now does, Mr. Schultz' duties with
Rampart are the same as when he operated under
Respondent 's name . In both instances he has worked as
leadman , assigned work to the crew , ordered supplies, and
delivered materials . The evidence further reveals that
Respondent was authorized to sign for Rampart 's supplies
prior to June 1, 1972, the date he went on Rampart's
payroll . The most significant difference in Mr . Schultz'
status as the leadman for Rampart and in conducting
business as Respondent , is his method of remuneration.
Under the old operation he received the profits. Under
Rampart he receives $250 per week , and the corporation,
which is under his wife 's control , receives the profits.
It is the position of Respondent that Rampart should be
treated as a separate and distinct entity without any
responsibility to recognize or bargain with the Union.
Respondent testified that Rampart was incorporated for
the purpose of providing a tax shelter and building an
inheritance for the Schultz' children . Its purpose , as stated
in the articles of incorporation , was the execution of
painting contracts . Thus, it was created for the purpose for
engaging in the same business as Respondent , albeit in a
different legal form. As hereinbefore stated , the Schultzes,
together with their attorney , were the incorporators;
initially, Mr. and Mrs . Schultz comprised two of the
corporation 's three directors ; and not until January 1972,
approximately a month after Respondent sold all of his
equipment to Rampart, did Mr . Schultz resign as a
director. Even then he was replaced by his father who lives
in another State and is not active in corporate affairs.
Respondent provided the original capitalization for Ram-
part and continued to loan money to the corporation as
needed. No notes were given in return for the loans, nor
was any interest charged . Of further significance is the fact
that Respondent was able to obtain work from Rampart on
the Gates-Brock job in order "to get the Union off my
[Respondent's] back." Mrs. Schultz did not attempt to hide
her dislike for the Union and testified that she had made
the decision that Rampart would be a nonunion contrac-
tor. While the Schultzes would have me believe that they
did not discuss the creation of Rampart and the ultimate
discontinuance of Mr . Schultz' business, in the light of all
the circumstances , I consider it highly improbable that the
entire course of action was not as they had planned. It is
my belief that the record supports the inference that the
decision that Rampart was to operate as a nonunion
contractor was made prior to the time Mrs. Schultz
submitted the bid on the Gates-Brock project, and that the
creation of the corporation was seized upon as a means of
avoiding Respondent's obligations under the contract with
the Union. It should be remembered that the parties
SCHULTZ PAINTING & DECORATING CO. 115
involved are not strangers , dealing at arm's length. The
entire matter has involved transactions between a husband
and wife occupying the same household.
While one of the factors the Board often considers in
determining successors or alter ego relationships is the
identity of the rank -and-file employees of the two entities
involved , the unfair labor practice alleged in this case,
which I find to have been sustained , caused the lack of
identity . Therefore , the lack of identity of employees does
not affect my finding of an alter ego relationship between
Respondent and Rampart . Rampart was formed by the
persons in control of Respondent , its capital was furnished
by Respondent, it has acquired all of Respondent's
equipment , and both Mr. and Mrs. Schultz perform
substantially the same functions for Rampart as they did
while operating under Respondent 's name.
The foregoing factors convince me, and I find, that
Rampart is "merely a disguised continuance of the old
employer", Edward E. Schultz d/b/a Schultz Painting &
Decorating Co., and that it was created in an attempt to
evade and avoid contractual and statutory bargaining
rights .2 As I have previously found that Respondent did
not make a timely withdrawal from multiemployer bar-
gaining , it follows that Respondent and its alter ego,
Rampart, are bound by the terms of the April 15, 1972,
agreement between PDCA and the Union, and that refusal
to accept and conform with the terms of said collective-
bargaining agreement constitutes a refusal to bargain
within the meaning of Section 8 (a)(5) of the Act, and
interference , restraint, and coercion within the meaning of
Section 8(a)(1) of the Act, and I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Respondent, Rampart, and PDCA, and each of
them, are employers within the meaning of Section 2(2) of
the Act.
2. Rampart is the alter ego of Respondent.
3. The Union is a labor organization within the
meaning of the Act.
4. All journeymen and apprentice painters employed
by employer-members of PDCA, including employees of
Respondent and its alter ego, Rampart , but excluding
office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. At all times since January 1, 1969, the Union has
been , and now is , the exclusive representative of all the
employees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
6. By refusing on and after June 1, 1972, to acknowl-
edge that it was bound by the terms and conditions of the
collective-bargaining agreement negotiated between the
Union and PDCA, Respondent and its alter ego, Rampart,
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 3
The activities of Respondent and Rampart as set forth in
section III, above, occurring in connection with the
operation of Respondent, Rampart, and PDCA described
in section I, above, have a close , intimate , and substantial
relation to trade , traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in violations
of Section 8(a)(J) and (5) of the Act and that Rampart is its
alter ego, I shall recommend that Respondent and its alter
ego, Rampart, cease and desist therefrom, and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that Respondent and its alter
ego, Rampart, bargain collectively with the Union by
acknowledging that it is bound by the terms of the
collective-bargaining agreement between the Union and
the PDCA which was effective on and after June 1, 1972.
Upon the basis of the foregoing findings of fact and
2 See Charles T. Reynolds Box Company, 135 NLRB 519, enfd. 324 F.2d
833 (C.A. 6); Herman Brothers Pet Supply, Inc., 138 NLRB 1087, enfd. 325
F.2d 68 (C.A. 6); Scott Manufacturing Company, 133 NLRB 1012, enfd. 302
F.2d 280 (C.A. I).
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
ORDER
Edward E . Schultz d/b/a Schultz Painting & Decorating
Co., and its alter ego, Rampart Painting Co., Inc., their
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive representative of their employees in the appropri-
ate unit described above , with respect to wages , hours, and
other terms and conditions of employment.
(b) Refusing to acknowledge that they are bound by the
terms of the collective -bargaining agreement executed by
the Union and PDCA on or about April 15, 1972, which
agreement was effective on and after June 1, 1972.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Bargain collectively with the Union by acknowledg-
ing that they are bound by the terms of the collective-
bargaining agreement executed by the Union and PDCA
on or about April 15, 1972, which agreement was effective
on and after June 1, 1972.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at their usual places of business, including the
Ford van and any other vehicles or buildings used as "on
the job storage" facilities, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for Region 27, shall,
after being signed by Respondent and Rampart, be posted
by them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent and Rampart have taken to comply
therewith.
4 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 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."
multiemployer unit, and we acknowledge that we are
bound by the terms of . the collective -bargaining
agreement executed by that Union and the Painting
and Decorating Contractors of America, Colorado
Springs Chapter, effective on and after June 1, 1972.
WE WILL NOT in any other manner interfere with the
rights granted our employees by the National Labor
Relations Act to organize or bargain collectively.
Dated By
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
Painters Local Union No. 171, affiliated with Interna-
tional Brotherhood of Painters & Allied Trades, as the
exclusive representative of our employees as part of a
Dated By
This is
anyone.
EDWARD E. SCHULTZ
D/B/A SCHULTZ PAINTING
& DECORATING CO.
(Employer)
(Representative) (Title)
RAMPART PAINTING CO.,
INC.
(Employer)
(Representative) (Title)
an official notice and must not be defaced by
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, U. S. Custom House, Room
260, 721 19th Street, Denver, Colorado 80202, Telephone
303-837-3551.