Tettaton Sign Co

National Labor Relations Board - Board Decisions

Mar 19, 1990

297 N.L.R.B. 922 (N.L.R.B. 1990)

922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lonnie Tettaton d/b/a Tettaton Sign Co and Sign
8z Pictorial Painters Local Union 774 Case 14-
CA-20226
March 19, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Union on July 31,
1989, the General Counsel of the National Labor
Relations Board issued a complaint on November
1, 1989, against the Company, the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act
The complaint alleges, in substance, that at all
times material, the Union has been the designated
collective-bargaining representative of the Re-
spondent s employees in an appropriate unit and
has been recognized as such by the Respondent,
that such recognition has been embodied in succes
sive collective-bargaining agreements, the most
recent of which was effective by its terms from
June 20, 1986, to June 19, 1989, that the Union, by
virtue of Section 9(a) of the Act, has been and is
the exclusive representative of the unit employees
for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment,
and other terms and conditions of employment
The complaint also alleges, in substance, that since
on or about January 31, 1989, the Respondent has
failed and refused to (1) pay the contractually re
quired wage rate to unit employees, and (2) make
the contractually required contributions to the
Union's welfare and pension funds The complaint
further alleges that, on or about June 28, 1989, the
Respondent withdrew its recognition of the Union
as the exclusive collective bargaining representative
of the unit employees The complaint further al
leges that by the foregoing conduct the Respond-
ent has refused to engage in good-faith bargaining
with the representative of its employees, in viola
tion of Section 8(a)(5) of the Act The Respondent
filed an answer and, following a letter from counsel
for the General Counsel informing it that the
answer was deficient under Section 102 20 of the
Board s Rules and Regulations, an amended
answer On December 12, 1989, the Respondent
filed a second amended answer admitting in part
and denying in part the allegations in the complaint
and raising certain affirmative defenses
On January 2, 1990, the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached, submitting that, in effect, the Respondent's
second amended answer raises no genuine issue of
fact that requires a hearing Subsequently, on Janu-
ary 4, 1990, 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 for Summary Judgment are therefore
undisputed
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Ruling on Motion for Summary Judgment
In its second amended answer to the complaint,
the Respondent admits, inter aim that the unit de-
scribed in the collective bargaining agreement is
appropriate for collective bargaining under the
Act, that the Union is the exclusive representative
of that unit, that the Respondent's refusal to adhere
to the wage and benefit fund requirements of the
contract after January 31, 1989, was without notice
to the Union and without its approval, and that it
withdrew recognition from the Union on June 28,
1989
The Respondent neither admits nor denies the
specific allegation that it had recognized the Union
pursuant to the 1986-1989 collective bargaining
agreement but states, essentially as an affirmative
defense, that the Respondent's president and sole
owner had not personally negotiated it Further,
the Respondent neither admits nor denies the alle
gations that the contract set out certain required
wage rates and benefit fund contributions and that
it failed to pay them to the unit employees and the
benefit funds, respectively The Respondent states,
again essentially as an affirmative defense, that with
respect to the former allegation it did not have a
copy of the contract and as to the latter allegation
that the wages actually paid were negotiated and
acceptable by employees and myself"
All factual allegations in the complaint are thus
either admitted or not specifically denied in the Re-
spondent's second amended answer Under Section
102 20 of the Board s Rules and Regulations, "any
allegation in the complaint not specifically denied
or explained shall be deemed to be admitted to
be true" The Respondent s purported explanations
with respect to the collective bargaining agree-
ment, supra, are not acceptable since the signed
contract that the Respondent admits to having
signed (attached to the Motion for Summary Judg-
ment) is sufficient evidence that the Respondent
was party to the contract, that the contract con
tamed the specific terms concerning wage rates and
benefit fund contributions, and that the Respondent
was aware of such provisions Further, the Re
spondent's assertion that the employees agreed to
the wages paid after January 31, 1989, is unavailing
297 NLRB No 155
TETTATON SIGN CO 923
because it is clear ,under Section 8(d). of the Act
that a party to, an existing collective-bargaining
agreement is prohibited from modifying the terms.
of such agreement without obtaining she consent of
the other party to the contract
Accordingly, since we find that all of the corn:
plaint allegations have been,. admitted, " or are
deemed to be true, and since the Respondent's af-
firmative defenses do not raise issues warranting a
hearing, we grant the Motion for Summary Judg-
ment •
On the basis. of the entire record, the Board
makes the following • -
FINDINGS OF FACT
• 'I

3 7C• 31 I I•
I JURISDICTION
The Company, a sole proprietorship with an
office and place of business in St Louis, Missouri,
is engaged in the business of sign painting and re-
lated services buring . the Year ending September
30, 1989, the Respondent, in the caurse and con-
duct of its busuiess operations, purchased and re-
ceived at ith 'St Ldtlis,' Missouri facility products,
goods, and matenals valued in excess of $50,000
from bther ehterpnses iodated within the State of
Missouri, each -of whichcother enterpnses had re-.
ceived the 'products, goods, and materials directly
from ,pomts,outside the ,State of Missouri We find
that thepompany: is an employer within the =Fill
mg of, Section ,2(6) and (7) of the-Act and that the-
Union is ai labor organization within the eaning'of
Section 2(5) of the Act -
.1,
I • II ALLEGE? ,UNFAIR LABOR PRACTICES
At all tithes- mitenaPthe Union has been recog-
nized as the excluswe, collective-bargaimng repre-
sentative ,of. the Responifent"'s,employees in a unit
of all Journeyman, sign, painters, journeyman sketch,
artists,-add apprentiCes,-excludmg all other employ-
ees, guards and supeivisors at the Respondent's St
Louis facility Such recognition has been embodied
in a series of collective-' bargaining agreements, the
most recerie of which was effective from June 20,
1986, 'to June 19, 1989 2 The Union continues to,be
the exclusive representative under Section 9(a) of'
the Act
On or abdut January 31 1989,1the Respondent.
Ceased paying the contractually required wage
rates to unit employees and ceased making its con-
tractually , required contributions to the Union's
In its answer, the Respondent admits some, and denies some, of the
paragraphs in the complaint that describe the Respondent s business oper-
ations for Junsdictional purposes Those allegations admitted are suffi-
cient for us to assert Junschction
,‘2 We have added-the statutory exclusions to the language of art 2, sec
2 of the collective-bargaining agreement
.•
welfare and pension funds These actions were
taken without notice to, and the consent of, the
Union; and tfius the Union was not afforded an op-
portunity to bargain with the Respondent as the
exclusive representative of the unit employees with
respect to these acts Further, on or about June-28,
1989, the Respondent wIthdrew its recognition of
die Union as the exclusive collective-bargaining
representative of the unit employees
Accordingly, we find that the Respondent, as
specified in the conclusions of law below, has re-
fused to bargain in good faith with the representa-,
tive of its employees in violation of Section 8(a)(5)
and (1) of the Act
CONCLUSION OF LAW
By unilaterally _departing froni its contractual ob-
ligations with 'respect to wages arid benefit contri-
butions" and by'-withdrawing tecognition from the
Union, the Respondent has refused to bargain with
the Union in violation of Section 8(a)(5) and (1) of
the Act

,REMEDY
).
Having found that the Respondent has engaged
in certain 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 r I V .
We, shall order the Respondent to bargain in
goOd faith , with the Union, if requested to do so,
and, if an understanding is reached, to embody the
understanding in a signed agreement With respect
tO the unilateral refusals to par the contractually
required wage rates and to make the cohtractually
required benefit fund contributions, we shall order
the Respbnaent to reestablish those wage rates arid
contributions and pay the employees the contrac-
tual 'rhtei Ind make the required contributions In
m'alunk the employees whole' for their lost wages,
the appropriate method of determining backpay
specified in Ogle Protectioh Service, 183 NLRB 682,
683 (1970) In addition, the Respondent shall make
its employees -whole for any losses resulting from
the RespOndent's failure to make contractual wel:
fare-ähepeiiiion fund payments in the manner pre-
sdibed in' Kraft Plumbing & Heating, 252 NLRB'
891' fr? ,2 (1980), enfd mem f 661 F 2d 940 (9th Cir
1-981) i- Interest on any money 'die and owing em-
ployees shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283
NLRB' 1173 (1987) The method of determining the
additional amounts, if any, owed to the benefit
finids is specified in Meriyweather Optical Go, 240
NLRB 1213 (1979)