Schultz Painting & Decorating Co.

National Labor Relations Board - Board Decisions

Aug 10, 1979

244 N.L.R.B. 133 (N.L.R.B. 1979)

SCHILTZ PAINTING & DECORATING CO,
Edward E. Schultz d/b/a Schultz Painting & Decorat-
ing Co., and its alter ego Rampart Painting Co.,
Inc.: and Lavonda Schultz d/b/a L.V.J. Schultz
Painting Co., and Painters Local Union No. 171.
affiliated with International Brotherhood of Painters
& Allied Trades. Case 27 CA-3604
August 10. 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEII.O
ANi) TRUESI)AIE
On April 5 1979, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Supplemental
Decision in this proceeding.' Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Edward E. Schultz d/b/a
Schultz Painting & Decorating Co., and its alter ego
Rampart Painting Co., Inc; and Lavonda Schultz d/
b/a L.V.J. Schultz Painting Co., Farmington. New
Mexico, their officers, agents, successors, and assigns.
shall take the action set forth in the said recommend-
ed Order.
The Board's original Decision is reported at 202 NLRB 111 (1973).
SUPPLEMENTAL DECISION
EARLDEAN V.S. ROBBINS, Administrative Law Judge: On
March 2, 1973. the Board entered its Decision and Order'
in this matter in which it directed Edward E. Schultz d/b/a
Schultz Painting and Decorating Co.. and its alter ego Ram-
part Painting Co.. Inc. (herein jointly called Schultz Paint-
ing), to bargain collectively with Painters Local Union No.
171. Affiliated with International Brotherhood of Painters
& Allied Trades (herein called the Union). by acknowledg-
ing that they were bound by the terms of the collective-
'202 NLRB 111 (1973).
bargaining agreement executed by the Union and the Paint-
ing and Decorating Contractors of America, Colorado
Springs Chapter (herein called the PDCA. eftfective from
June 1. 1972. to June I. 1974.
On February 26. 1974. the United States Court of Ap-
peals for the Tenth Circuit entered its decree enforcing in
full the Board's Order. Schultz Painting refused to comply.
and thereafter the Board filed with the court a petition for
adjudication in civil contempt of the court's decree. By Or-
der entered September 23. 1974. the court designed a spe-
cial master to determine the issues of law and faict raised bh
the petition. affidavits, and pleadings in the contempt pro-
ceedings. On May 13, 1975. the court approved the findings
of fact and Conclusions of Law proposed bh the special
master, which included a conclusion that Lasonda Schultz
d/b/a L.V.J. Schultz Painting Co. is an alter ego of Edward
E. Schultz d/b/a Schultz Painting and Decorating Co., cre-
ated solely to avoid the decision of the court granting the
Board's petition for enforcement of its order finding that
Rampart Painting Co., Inc., was and is an alter ego of Ed-
ward E. Schultz d/b/a Schultz Painting and Decorating
Co. Accordingly it was ordered and adjudged by the court
that Schultz Painting and Lavonda Schultz d/b/a L.V.J.
Schultz Painting Company (herein collectively called Re-
spondent), were in civil contempt for disobeying and failing
and refusing to comply with the judgment of the court
which was entered on February 26. 1974. On July 25. 1975,
the court partially remanded this matter to the Board for
such further action as it determined proper under the cir-
cumstances.
Controversy having arisen over the amount of hackpay
due employees employed by Respondent and moneys due
the union funds under the collective-bargaining agreement.
the Regional Director of Region 27 of the National Labor
Relations Board issued a backpay specification and notice
of hearing on November 25. 1975. to which Respondent
duly filed an answer which was further clarified by a bill of
particulars dated July 21. 1976. The matter was heard be-
fore me in Denver. Colorado. on January 23 and 24. 1979.
A post-trial brief was filed by the General Counsel.
Upon the entire record. including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the General Counsel and the oral argu-
ment of counsel for Respondent. I make the following:
FINDINGS OF FA(CI
I. THE BA(KPAY ONWED INDIVIDUAL. EMPI.O()YIS
Respondent does not dispute the allegations of the back-
pay specification as to the wage rate paid or the backpay
period for, or the number of regular and overtime hours
worked by. various individual employees. Nor does Re-
spondent dispute the allegation that an appropriate mea-
sure of the amounts due those individuals employed in job
classifications covered by the collective-bargaining agree-
ment is the difference between the amount they were actu-
ally paid per hour and the hourly rate specified in the agree-
ment. or that the mathematical computation therein is
correct to the extent that the appropriate wage rate was
employed. However. Respondent does argue that certain
individuals named in the backpav specification were not
244 NLRB No. 27
133
I)E('ISI()NS ()1 NATIONAI I.ABO()R RlHAII()ONS BOARI)
enlplo!ed in cl;lssifications covetred bh the collective-bar-
gainine agreement and that certain other individuals al-
leged as ourne,men were not qualified as journeymen and
should ha;e been alleged as apprentices.
The work involved here. accordinL to dward Schultz.
was principally at one construction project, a housing de-
%elopment. Schultz testilied, and the parties stipulated in
the contenlpt proceeding, that Respondent's contract was
to perform the painting of the houses in this project and
also to perform cleaning services. Schultz testified without
contradiction that the cleaning services included sweeping
out the houses at four different stages of construction
once after the framework, and plumbing. and electrical
rough-in, but before the installation of sheetrock. once after
the installation of the sheetrock, hut prior to drywall taping
once after texturing, but prior to painting, and again after
painting, just prior to carpet installation. Part-time student
employees and other casual laborers were generally used
for this cleaning. The final cleaning in preparation for occu-
pancy by the owner was generally done by Schultz' wife.
Lavonda. and a cleaning woman.
Schultz further testified, without contradiction, that
James Cianci. David Denton. John Parrish. Robert Safford.
Douglas Sego. Stanley Walker, and Mark Wilmerding did
cleaning only and never did any painting. Inasmuch as
some of the General Counsel's witnesses worked at the
same time as these employees but were not called to rebut
this testimony and since the hours worked by these employ-
ees are not clearly inconsistent with Schultz' testimony. I
credit Schultz' testimony and conclude that these employ-
ees did not work in any classifications with wage rates es-
tablished by the collective-bargaining agreement. In reach-
ing this conclusion I have thoroughly considered, and reject
the General Counsel's argument that these employees did
work in such classifications since, at times. they cleaned
buckets. ladders, and other equipment. and moved equip-
ment used by painters from one house to another, all tasks
incident to painting which painters would otherwise do
themselves. In view of this conclusion. I find that James
Cianci. David Denton, John Parrish, Robert Safford. Doug-
las Sego. Stanley Walker, and Mark Wilmerding are not
entitled to backpay.
Schultz also testified that David Lynch and Vaughn Rees
worked as cleaners but also did some priming.2 Lynch spent
most of his time doing puttying, sanding, caulking. and
priming. All of these tasks are admittedly work covered by
the collective-bargaining agreement. Schultz gave no details
as to what portion of' the work performed by Rees was
painting. Since Rees did perform work covered by the col-
lective bargaining agreement. it is incumbent upon Respon-
dent to establish whether by reason of the performance of
other duties Rees is not entitled to backpay for some por-
tion of the alleged backpay period. Respondent has not met
this burden.
Schultz also testified that Jeffrey Earheart was a cleaner
who did no painting. However. Earheart testified that he
2 Priming is the first coat of paint, which Schultz claims requires no skill.
However, he admits that it is work covered by the collective-bargaining
agreement.
was employed to. and did, paint. I found Earheart to he an
honest. reliable witness whom I credit in this regard.
Respondent contends that of those employees who per-
formed work covered by the collective-bargaining agree-
ment. only Volz was qualified as a journeyman, that some
of the others are not even qualified as apprentices, and that,
furthermore. Respondent participated in no apprenticeship
program. I find no merit in these arguments. Respondent
cannot refuse to honor the collective-hargaining agreement
and then use its failure to require apprentices to enter into
an apprenticeship agreement, as required by the contract.
to avoid its contractual obligations as to payment of' wages
and benefits. Nor am I persuaded by any subjective evalu-
ation of an employees' competency made at the hearing.
particularly where, as here. Respondent retained some of
these individuals in its employ.
Respondent does raise, however, a more serious issue
that employees alleged as journeymen in the backpay speci-
fication do not meet basic objective criteria for journeymen
set forth in the collective-bargaining ageement. Pertinent
portions of the agreement read:
JOURNEYMAN A journeyman is defined as one
who is proficient in the painting, decorating and dry-
wall finishing trade, and has follovwed said trade for at
least (3) three years (painting) (2) two years (drywall-
ing), and who does not contract.
APPRENTICE An apprentice is defined as one who
is learning the painting and decorating trade, and has
not yet become a journeyman under a written appren-
ticeship agreement.
IMPROVER An improver is a painter who has had
some experience at painting, but is not yet qualified as
a journeyman. He is not registered with a bona fide
apprenticeship program.
* * *
The employer shall be entitled to one (I) apprentice to
every four (4) journeymen ....
All apprentices must sign an agreement with the union.
this agreement to be furnished by this Local. Appren-
ticeship agreements must be approved by the Local
and Apprenticeship Committee.
IMPROVER CLASSIFICATION
An improver is a painter who has had at least one year
proven experience at painting, but is not yet qualified
as a journeyman and is not registered with a bonafide
apprenticeship program.
Local Union 171 signatory Employers may employ
Improvers on new housing work only. The ratio of im-
provers will be 2 improvers to 5 journeymen, and the
Employer will hold the ratio of apprentices at all times.
Pay scale and subsequent increases will be the same as
a starting painter apprentice.
It is well settled that the finding of an unfair labor prac-
tice is presumptive proof that some backpay is owed.
N. L. R. B. v. Mastro Plastics Corporation and French Amrneri-
can Reeds Manulctfiuring Company. 345 F.2d 170, 178 (2d
134
SCHULTZ PAINTINCi & D)ECORATIN(i CO.
Cir. 1965)}. cert. denied 384 U.S. 972 (1966,1. and that in a
backpay proceeding the sole burden on the General C(oun-
sel is to show the gross amounts of hackpay due the
amount the employee would have received but for the em-
ployer's illegal conduct. Virginia Electric and Power (onl-
pany v. N.L.R.B., 319 U.S. 533, 544 (1943). Once that has
been established. "the burden is upon the employer to es-
tablish facts which would . . . mitigate that liabilits."
N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447. 454 (8th Cir.
1963).
Even if General Counsel does not have the initial burden
of affirmatively establishing that the appropriate rate of pay
was used in computing backpay, based on the contractual
definition of journeymen and apprentices and the evidence
that many of these employees do not meet the basic experi-
ence criteria for a journeyman. Respondent has certainly
shifted to the General Counsel the burden of establishing
that the rate of pay used was appropriate. Essentiall. this
means whether backpay claimants were appropriately con-
sidered as journeymen or apprentices.
Counsel for the General Counsel admits that the General
Counsel assigned the classification of journeymen or ap-
prentices to individual employees for purposes of hackpas
computation and, that in so doing, no consideration was
given to the experience requirement set forth in the con-
tract. Rather, the General Counsel's theory is that since
Respondent did not honor the collective-bargaining agree-
ment and thus did not participate in a apprenticeship pro-
gram, its employees should be considered as journey men on
the contractural ratio of four journeymen to one apprentice
without regard to their years of experience. or lack of expe-
rience.
Although not entirely clear, it appears that in selecting
who should receive backpay at the apprentice rate. those
who were paid less than $2.50 an hour were considered
apprentices. Those employees who received in excess of
$2.50 an hour were considered journeymen and those who
were paid $2.50 an hour might be placed in either category.
I find no merit in the General Counsel's argument. Al-
though Respondent has clearly failed to comply with its
contract with the Union as to the ratio of journeymen to
apprentices, the appropriate remedy therefore is a cease-
and-desist order. not payment ofjourneymen wages to em-
ployees who fail to meet even the basic contractual require-
ment as to the number of years of experience.
Accordingly, I conclude that only those employees with 3
years experience are entitled to the journeyman rate of pay.
Of those whose claims Respondent disputes, only Joseph
Theriault has the requisite years of experience. Respondent
argues that his experience as an industrial painter does not
qualify him as a house painter. However, I note that The-
riault received a journeyman's card in 1974. shortly after
being employed on a union job. Furthermore, since the un-
certainty as to Theriault's qualifications would not exist but
for Respondent's unlawful conduct, the uncertainty must
be resolved against Respondent rather than against the
backpay claimant. Southern Household Products Conmpanv.
Inc., 203 NLRB 881 (1973). Accordingly, I find that the
appropriate wage rate for computing his backpay is the
journeyman's rate.
Respondent does not dispute the allegation that Authur
Volz should be paid at the journe\ man's rate. Since The-
riault and Volz are alleged in the backpa5 specification as
journeymen and their backpa? computed accordingly I
find that they are entitled to backpa in the amount set
forth in the backpay specification.
As indicated above. I reject Respondent's argument that
some of the other employees were not qualified as appren-
tices. They all performed work covered by the collectise-
bargaining agreement. Any uncertainly as to their conmpe-
tency is caused by Respondent's unfair labor practices and.
accordingly, must be resolved against Respondent rather
than against the backpay claimants. I therelore find that the
appropriate rate of pay to be used in computing their hack-
pay is the apprentice wage rate set forth in the contract.'
Since Jeffre5 Earheart. David l.snch. and Daniel Ohmer
are alleged in the backpay specification as apprentices and
their hackpa_ computed accordingly. I ind that the5 are
entitled to hackpa in the amount set forth in the hackpay
specification.
'Ted Brumley. [)anny Burt, Wayne Burns. Richard
French. James Pickel. George Ramsey, Vaughn Rees. and
Jens Zimmerman are alleged as journes men in the hackpay
specification. (However I have found aboLe that the ap-
prentice rate is the appropriate rate of pas of' them. ihere-
fore, the amount of backpay to which thex are entitled must
be recomputed using the apprentice rate. Since French.
Pickel, Rees. and Zimmerman worked for Respondent for
less than 6 months and had no preyious painting experi-
ence. the rate ot pay applicable to them is that set tfrth in
the collectie--bargaining agreement for apprentices in the
first 6 months of their apprenticeship.
French's backpa period begins with the pa) period be-
ginning April 12. 1974. and ends May 16. 1974, the date of
the last pal roll on which he ippears. French was paid $3.05
per hour. The contractual pay rate which he should have
received is $3.28 per hour. ie worked a total of 150 hours
during the backpay period.
Pickel's backpay period extends from the payroll period
beginning November 13. 1973. through December 5. 1973.
the date of the last payroll on which he appears. He worked
a total of' 72 hours. The contractual pay rate was $3.18 per
hour up to December 1, 1973. when the rate increased to
$3.28. Pickel was paid $3.50 per hour. Accordingly no back-
pay is owed him.
I The collective-bargaining agreement provides that apprentices be paid as
follows: The minimum scale for starting painter apprentices shall be no less
than 50 percent of the journeyman scale and the periodic increases as fll-
lows:
Ist 6 months or 1.000 hours 50 percent
2nd 6 months or 1.000 hours-60 percent
3rd 6 months or 1.000 hours-70 percent
6 months or 1.000 hours 80 percent
5th 6 months or 1.000 hours -90 percent
6th 6 months or 1.000 hours 95 percent
The journeyman wage rate set forth in the collective-hargaining agreement is
S6.10 per hour for brush and roller painters and $6.60 per hour for spray
painters until June I, 1973, when the wage rate increased to $6.35 per hour
for brush and roller painters and $6.85 per hour fr spray painters, and
continued at those rates until December I. 1973. when the wage rate in-
creased to $6 55 per hour for brush and roller painters and $7.05 per hour lir
spray painters The contract also provides for oertime at I-I /2 times the
regular rate for all hours in excess of 8 hours a day or 40 hours a week.
135
DECISIONS OF NATIONAL LABOR REL ATIONS BOARD
Rees' backpay period begins with the pay period begin-
ning October 19, 1973, and ends January 10, 1974, the date
of the last payroll on which he appears. Rees worked a total
of 156-1/4 adjusted hours 4 during the period beginning Oc-
tober 18 and ending November 29: 150 adjusted hours dur-
ing the period beginning November 30 and ending Decem-
ber 27: and 68 hours during the period beginning
December 28 and ending January 10. The contractual wage
rate was $3.18 per hour up to December 1, 1973, when the
rate increased to $3.28 per hour. fie was paid $3.50 per
hour. Accordingly no backpay is owed him.
Zimmerman's backpay period begins with the pay period
beginning October 19. 1973, and ends April 4. 1974, tle
date of the last payroll on which he appears. Zimmerman
worked a total of 856.63 adjusted hours during the backpay
period. The contractual wage rate to which he was entitled
was $3.18 per hour up to December 1. 1973. when the rate
increased to $3.28 per hour. He was paid $3.50 per hour.
Accordingly, no backpay is owned him.
Wayne Burns, who worked for Respondent olr less than
6 months had I year of previous painting experience. Thus
the rate of pay to be used in computing his hackpay is the
contractual rate for apprentices in the third 6 months of
their apprenticeship. Burns' backpay period begins with the
pay period June 2, 1972, and ends June 15, 1972, the date of
the last payroll on which he appears. Burns was paid $3 per
hour. The contractual wage rate which he should have been
paid was $4.27 per hour, 70 percent of the journeyman rate.
Burns worked a total of 34-1/2 hours during the backpay
period.
Ted Brumley's backpay period extends from the payroll
period beginning July 7. 1972, through July 26, 1973. the
date of the last payroll on which he appears. He had no
previous painting experience. At the beginning of the back-
pay period he was paid $2.50 per hour. Beginning July 21,
1972, he was paid $3.50 per hour until the pay period begin-
ning November 10. 1972. when his wage rate was raised to
$3.75 per hour. On December 22, 1972. his wage rate was
raised to $4 per hour.
The contractual wage rate to which he was entitled was
$3.05 per hour through the payroll period ending January
11, 1973, when it increased to $3.66 per hour, the contrac-
tual rate for apprentices in the second 6 months of the ap-
prenticeship. On June 1, 1973, the contract provided for a
general wage increase. As of this date, the contractual wage
rate to which he was entitled was increased to $3.81 per
hour. Brumley entered into his third 6-months period in
Respondent's employ during the payroll period beginning
July 13, 1973. At that time the contract required that his
wage rate be increased to $4.44 per hour. Thus he is owed
backpay only for the final quarter of his employment. Dur-
ing the payroll period ending July 12 he worked 24 adjusted
hours. Thereafter, during the quarter, he worked 79-1/2
hours.
Danny Burt's backpay period extends from the payroll
period beginning June 2, 1972, through May 30, 1974, the
date the collective-bargaining agreement terminated. The
record does not establish when he first began his employ-
4The term "adjusted hours" includes overtime hours which have been
converted to their straight-time equivalent at the rate of I to I-I/2.
ment with Respondent. He had no painting experience
prior thereto. Burt was paid $3 per hour from the beginning
of the backpay period to July 21, 1972, when his pay rate
was increased to $3.25 per hour. On January 26, 1973, his
pay rate was increased to $3.50 per hour. On July 27, 1973,
his pay rate was increased to $4 per hour and on December
13. 1973, his pay rate was increased to $4.10 per hour.
At the beginning of the backpay period the contractual
wage rate was $3.05 per hour.' During the payroll period
ending )ecember 7. 1972. Burt entered into the second 6
months of his employment with Respondent and the con-
tractual wage rate to which he was entitled increased to
$3.66. During the payroll period ending June 7, 1973. Burt
entered into the third 6 months of his employment with
Respondent and the contract provided for a general wage
increase as of June 1, 1973. At this time the contractual
wage rate to which he was entitled increased to $4.45. Dur-
ing the payroll period ending December 6. 1973. Burt be-
gan the fourth 6 months of his employment with Respon-
dent and the contract provided for a general wage increase
as of December 1. 1973. At this time the contractual wage
rate to which he was entitled increased to $5.24 per hour.
Burt worked the following hours during the backpay pe-
riod:
1972
June I through June 29 194.0 hrs.
June 30 through July 20 97.0 adj. hrs.
July 21 through
September 28 398.25 adj. hrs.
Sept. 29 through Nov.
30 306.0 hrs.
D)ec. I through [)ec. 28 137.5 hrs.
1973
Dec. 28 through Jan. 25 125.0 hrs.
Jan. 26 through Mar. 29 354.0 hrs.
Mar. 30 through June 1 332.0 hrs.
June 2 through June 28 160.0 hrs.
June 29 through July 26 145.5 adj. hrs.
July 27 through Sept. 28 289.0 hrs.
Sept. 29 through No,.
29 289.5 adj. hrs.
Nov. 30 through Dec.
13 76.5 hrs.
Dec. 14 through Dec. 27 56.5 hrs.
1974
Dec. 28 through Mar.
28
Mar. 29 through May
30
501.0 hrs.
355.5 hrs.
George Ramsey began his employment with Respondent
in February 1972. 6 he had no previous painting experience.
'Since the record does not establish the date Burt's eniploment began.
the rate used is the rate for a beginning apprentice, commencing ith the
start of the backpay period.
T he record does not estahlish the exact date his employment began. For
purposes of hackpay computations, specifically the determining of the ap-
prentice rate to hich he is entitled, his emplo> ment will he deemed toi have
commenced on [:ehruary I, 1972
136
SCHULTZ PAINTING & DECORATING CO.
His backpay period begins with the pay period beginning
June 2, 1972, and ends May 30. 1974. the date the collec-
tive-bargaining agreement terminated. At the beginning of
the backpay period Ramsey was paid $3.50 per hour. Dur-
ing the pay period beginning July 21. 1972, his pay rate was
increased to $5 per hour. During the pay period beginning
on March 30, 1973. his pay rate was reduced to $4 per hour.
During the pay period beginning December 14. 1973, his
pay rate was raised to $4.10 per hour.
The contractual rate which Ramsey should have been
paid at the beginning of the backpay period was $3.05 per
hour. Ramsey entered into the second 6 months of his em-
ployment with Respondent during the payroll period end-
ing August 3, 1972. At that time the contractual wage rate
to which he was entitled increased to $3.66. He entered into
the third 6 months of his employment with Respondent
during the payroll period ending February 1, 1973. at
which time the contractual wage rate to which he was enti-
tled increased to $4.27. The collective-bargaining agree-
ment provides for a general wage increase as of June I.
1973. At that time the contractual wage rate to which Ram-
sey was entitled increased to $4.45 per hour.
Ramsey entered into the fourth 6 months of his employ-
ment with Respondent during the payroll period ending
August 2, 1973. At that time the contractual wage rate to
which he was entitled increased to $5.08 per hour. The col-
lective-bargaining agreement provides for a general wage
increase as of December , 1973. At that time, the contrac-
tual wage rate to which he was entitled increased to $5.24
per hour. Ramsey entered into the fifth 6 months of his
employment with Respondent during the payroll period
ending February 7, 1974. At that time the contractual wage
rate to which he was entitled increased to $5.90 per hour.
During the backpay period, Ramsey worked the follow-
ing number of hours:
1972
June I through June 29 247 adj. hrs.
June 30 through July 20 168 adj. hrs.
July 21 through July 27 40 hrs.
July 28 through Sept. 14 280 hrs.
Sept. 30 through Dec.
28 520 hrs.
1973
Dec. 29 through Jan. 25 160 hrs.
Jan. 26 through Mar. 29 360 hrs.
Mar. 30 through May
31 357 hrs.
1973
June I through June 28
June 29 through July 26
July 27 through Sept. 27
Sept. 28 through Nov.
29
Nov. 30 through Dec.
160 hrs.
160 hrs.
353 hrs.
280 hrs.
14 80 hrs.
Dec. 15 through Dec. 28 80 hrs.
1974
Dec. 29 through Jan. 31 200 hrs.
Feb. I through Mar. 28 304 hrs.
Mar. 29 through May
30 392 hrs.
II. BA('KPAY OWl) TO HEL VAR(): S B-NEFIT t'NI)S
The backpay specification alleges that Respondent
should be required to pay into the various benefit funds the
amounts required by the collective-bargaining agreement
for each of the individuals alleged in the backpa, specifica-
tion as backpay claimant. The agreement provides for such
payments as follows:
In addition to wages shown above, the following three
contributions will be paid into the respective trust in
the amount specified in this wage scale for every man-
hour worked or fraction thereof.
1972
6/1 12/1
Health &
Welfare
Pens ion
Apprentice
& Journey-
men Training
6/1
1973
12/1
.20 .40 .04 .40
.20 .20 .20 .20
.02 .02 .02 .02
Schultz admits that no payments have been made into
the various benefit funds as required by the agreement.
However, Respondent contends that in the absence of any
medical, hospital, and disability insurance coverage under
the health benefit fund for any of these employees. and in
the absence of any claims for any kind of health and acci-
dent insurance coverage to any' of the employees, it should
not be required to make any back pay payment to the
health benefit fund. As to the pension fund. Respondent's
basic argument is that since, with the exception of Volz, the
employees are not covered by the collective-bargaining
agreement, they are not eligible for any pension fund bene-
fit and the fund should not be unjustly enriched by pay-
ment thereto. To the extent I have rejected Respondent's
argument on these same grounds as to backpay owed indi-
vidual employees. I must also reject the argument as to the
pension fund. However, the contributions to these funds are
set forth in the contract as part of the wage scale and is
clearly considered as such. Accordingly, no contributions to
these funds are required on behalf of those employees who
did not work in any classification whose wage rate is estab-
lished by the collective-bargaining agreement. I also find no
merit in Respondent's argument as to the health fund. Ac-
cordingly. I find that the amounts alleged in the backpa 5
specification as owing to the various funds are to be re-
duced by the amounts alleged as owned on behalf of the
employees I have heretofore found do not work in classifi-
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cations whose wage rate is established by the collective-
bargaining agreement.
Upon the foregoing findings of fact and the entire record
herein, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 7
The Respondents. Edward E. Schultz d/b/a Schultz
Painting and Decorating Co., and its alter ego Rampart
Painting Co.. Inc. and Lavonda Schultz d/b/a L.V.J.
Schultz Painting Co.. their officers, agents. successors, and
assigns, shall jointly and severally make the employees and
funds set forth below whole by payment to each of them of
the sum set forth opposite their respective names with inter-
est as prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). less tax withholding as required by law:
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.
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.
A. Individual Employeess
Ted Brumbly
Wayne Burns
Danny Burt
Jeffrey Earheart
Richard French
David Lynch
Daniel Ohmer
George Ramsey
Joseph Theriault
Arthur Volz
$30.15
43.82
1746.95
463.05
34.50
76.33
574.08
2595.23
3782.06
14.70
B. Benefit Funds9
Colorado Painters Health Benefit Fund $4595.80
I.B.P.A.T. Union and Industry National Pension
Fund 2740.40
Colorado Springs Painters and Drywall Finishers
Training Trust 274.12
i See Appendix A [omitted from publication].
I See Appendix B omitted from publication.
138