Trim Systems Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1997

322 N.L.R.B. 152 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Trim Systems, Inc., and Jenkins Design Systems,
Inc. and Local 1234, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO.
Case 7–CA–36837 (1)(2)
January 17, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon charges filed by the Union on February 13,
1995, the General Counsel of the National Labor Rela­
tions Board issued a consolidated complaint (com­
plaint) on March 30, 1995, against Trim Systems, Inc.
(Respondent TS) and Jenkins Design Systems Incor­
porated (Respondent JD), alter egos, collectively (the
Respondents), alleging that they have violated Section
8(a)(5) and (1) of the National Labor Relations Act.
Thereafter, on March 14, 1996, the Regional Direc­
tor for Region 7 approved a settlement agreement that
provided that ‘‘Approval of this Agreement by the Re­
gional Director shall constitute withdrawal of any
Complaint(s) and Notice of Hearing heretofore issued
in this case, as well as any answer(s) filed in re­
sponse.’’ On August 30, 1996, the Regional Director
issued an Order Setting Aside Settlement Agreement
and Reissuing Consolidated Complaint and Notice of
Hearing. Although properly served copies of the
charges and the reissued complaint, the Respondents
failed to file an answer.
On December 6, 1996, the General Counsel filed a
Motion for Default Summary Judgment with the
Board. On December 10, 1996, 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 Respondents filed no response. The alle­
gations 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 Default Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un­
less good cause is shown. In addition, the complaint
reissued on August 30, 1996, affirmatively notes that
unless an answer is filed within 14 days of service, all
the allegations in the complaint will be considered ad­
mitted. Further, the undisputed allegations in the Mo­
tion for Default Summary Judgment disclose that the
Region, by letter dated September 27, 1996, notified
the Respondents that unless an answer were received
by October 11, 1996, a Motion for Default Summary
Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Default Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times until about December 31, 1994,
Respondent Trim Systems, Inc., a corporation, oper­
ated an office and place of business at 2643 East
Michigan Avenue, Ypsilanti, Michigan and, at all ma­
terial times, between January 1, 1994, and December
31, 1994, was engaged in the construction business,
providing trim carpentry services to various customers
and to general contractors at various jobsites within the
State of Michigan. At all material times, Respondent
Jenkins Design Systems, Inc., a corporation with an of­
fice and place of business at 2643 East Michigan Ave­
nue, Ypsilanti, Michigan, has been engaged in the con­
struction business, providing trim carpentry and gen­
eral contracting services to various customers and to
contractors at various jobsites within the State of
Michigan.
During the 1994 calendar year, Respondent TS, in
conducting its business operations, performed services
valued in excess of $50,000 for various enterprises lo­
cated within the State of Michigan including Pumford
Construction Company (Pumford). At all material
times Pumford operated an office and place of business
in Saginaw, Michigan, and has been engaged in the
residential construction business and retail sale of resi­
dential units to various customers. During the 1994
calendar year, Pumford had gross revenues in excess
of $500,000 and purchased goods and materials valued
in excess of $50,000, and caused said goods and mate-
rials to be shipped directly to its Michigan facility
and/or its Michigan jobsites from points located out-
side the State of Michigan.
At all material times, Respondent JD, in conducting
its business operations, had gross revenues in excess of
$300,000 and provided services valued in excess of
$50,000 to Rodney Lockwood & Company
(Lockwood). At all material times, Lockwood operated
an office and place of business in Birmingham, Michi­
gan, and has been engaged in residential construction
for various customers. During the 1994 calendar year,
Lockwood had gross revenues in excess of $500,000,
and purchased goods and materials valued in excess of
$50,000, and caused said goods and materials to be
shipped directly to its Michigan facility and/or Michi­
gan jobsites from points located outside the State of
Michigan.
322 NLRB No. 152
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At all material times since 1993, Respondent JD and
Respondent TS have been affiliated business enter­
prises with common management and supervision,
have formulated and administered a common labor
policy, have shared common premises and facilities,
have provided services for and/or made sales to each
other, have interchanged personnel with each other,
and have utilized common phones, job bidding proce­
dures, payroll services, and attorney services, and have
otherwise demonstrated that they are a single-inte­
grated business enterprise. Based on its operations, Re­
spondent TS and Respondent JD constitute a single-in­
tegrated business enterprise and alter egos within the
meaning of the Act.
We find that Respondent TS and Respondent JD
have been employers 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 mean­
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of Respondent TS con­
stitute a unit (the TS unit) appropriate for the purposes
of collective bargaining within the meaning of the Act:
All full-time and regular part-time carpenter em­
ployees employed by Respondent TS in residen­
tial construction work at its various jobsites in­
volving residential construction in Wayne, Oak-
land, Macomb, Sanilac, St. Clair, Monroe,
Washtenaw, Livingston, Genesee, Lapeer,
Tuscola, and Huron counties; but excluding all of­
fice clerical employees, guards and supervisors as
defined in the Act.
The following employees of Respondent JD con­
stitute a unit (the JD unit) appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time carpenter em­
ployees employed by Respondent JD in residential
construction work at its various jobsites involving
residential construction in Wayne, Oakland,
Macomb, Sanilac, St. Clair, Monroe, Washtenaw,
Livingston, Genesee, Lapeer, Tuscola, and Huron
counties; but excluding all office clerical employ­
ees, guards and supervisors as defined in the Act.
At all material times, the Association of Carpentry
Contractors (the Association) has been an organization
composed of various employers engaged in the con­
struction industry, one purpose of which is to represent
its employer-members in negotiating and administering
collective-bargaining agreements with various labor or­
ganizations, including the Union.
About August 15, 1993, the Association and the
Union entered into a collective-bargaining agreement,
the Carpenter’s Residential Agreement, effective by its
terms from August 15, 1993, until August 15, 1994.
About May 18, 1994, Respondent TS entered into a
‘‘me too’’ agreement, by virtue of its being signatory
to the Association agreement as an individual em­
ployer, and thereby adopted the Carpenter’s Residential
Agreement. About August 15, 1994, this agreement
signed by Respondent TS automatically renewed itself
for an additional year, inasmuch as neither party gave
the other party sufficient notice to forestall the auto­
matic renewal clause. Respondent TS, an employer en-
gaged in the building and construction industry, grant­
ed recognition to the Union as the exclusive collective-
bargaining representative of the TS unit without regard
to whether the majority status of the Union had ever
been established under the provisions of Section 9(a)
of the Act. Such recognition has been embodied in a
continuation of the initial collective-bargaining agree­
ment described above. At all times between May 19,
1994, and about December 31, 1994, based on Section
9(a) of the Act, the Union has been the limited exclu­
sive collective-bargaining representative of the TS unit.
At all times since about December 31, 1994, based on
Section 9(a) of the Act the Union has been the limited
exclusive collective-bargaining representative of the JD
unit.
Since about August 13, 1994, Respondent TS has re-
fused to pay contractually mandated fringe benefits, in­
cluding vacation and holiday pay, insurance (health
and welfare), and pension benefits owing for TS unit
employees, to said employees and/or the appropriate
fringe benefits funds. Since about August 13, 1994,
Respondent TS has refused to submit monthly fringe
benefit reports for TS unit employees to the Union.1
About December 31, 1994, Respondent TS ceased
doing business and unilaterally transferred the unit em­
ployees to the employ of Respondent JD. Respondent
TS took such action without notice to and/or bargain­
ing with the Union with respect to the decision and/or
the effects of the closing.
Since about January 1, 1995, Respondent JD has uti­
lized substantially the same work crews, supervision,
and labor relations policies as that of Respondent TS
and performed work for the same contractors at the
same jobsites as that previously performed by Re­
spondent TS. Since about January 1, 1995, Respondent
JD has conducted its business operations in an essen­
tially unchanged manner from that of Respondent TS
with respect to the performance of residential carpentry
work, and has thereby been operating as an alter ego
of Respondent TS. Respondent TS and its alter ego
1 The complaint fails to allege that these reports are contractually
mandated. Accordingly, we are unable to find that the failure to sub­
mit these reports is a violation of the Act. In any event, the Re­
spondents are ordered to comply with the terms of the collective-bar-
gaining agreement which will include any updating requirements
contained therein.
TRIM SYSTEMS, INC. 3
Respondent JD took this action in order to evade its
contractual obligations under the collective-bargaining
agreement described above and in order to avoid deal­
ing with the Union.
Since about January 1, 1995, Respondent JD has re-
fused to pay contractually mandated fringe benefits, in­
cluding vacation and holiday pay, insurance (health
and welfare), and pension benefits owing for unit em­
ployees, to said employees and/or to the appropriate
fringe benefits funds. Respondent JD took this action
and has thereby repudiated its contractual obligations
under the collective-bargaining agreement. Since about
January 1, 1995, Respondent JD has refused to submit
monthly fringe benefits reports for said unit employees
to the Union.
CONCLUSION OF LAW
By the acts and conduct described above, Respond­
ent TS and Respondent JD have been failing and refus­
ing to bargain collectively and in good faith with the
limited exclusive collective-bargaining representative
of their employees, and have thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi­
cally, having found that the Respondents have violated
Section 8(a)(5) and (1) by repudiating the collective-
bargaining agreement and by, failing, since about Au-
gust 13, 1994, to pay contractually required fringe ben­
efits, including vacation and holiday pay, insurance
(health and welfare), and pension benefits owing for
unit employees, to said employees and/or to the appro­
priate fringe benefits funds, we shall order the Re­
spondents to give effect to the terms of the collective-
bargaining agreement and to make whole their unit
employees by paying the unit employees, with interest,
the amounts the Respondents have failed to pay and by
making all such delinquent contributions to the appro­
priate fringe benefits funds, including any additional
amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondents shall reimburse
unit employees for any expenses ensuing from their
failure to make the required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971). Interest is to be paid as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).2
In addition, having found that the Respondent TS,
about December 31, 1994, ceased doing business and
unilaterally transferred the TS unit employees to the
employ of Respondent JD without notice to or bargain­
ing with the Union with respect to the decision and/or
the effects of the closing and in order to evade its con­
tractual obligations under the collective-bargaining
agreement, we shall order the Respondents to restore
the operation as it existed prior to December 31, 1994,
including offering to reinstate to their same or substan­
tially equivalent positions of employment, all unit em­
ployees, if any, laid off as a consequence of the De­
cember 31, 1994 closure, displacing if necessary, any
persons hired since December 31, 1994, provided that
nothing in this order shall preclude Respondent TS,
after it has complied with the terms of this Order, from
changing its operation for lawful reasons, provided that
it has fulfilled any obligation to bargain with the
Union regarding such decision or its effects. Any such
laid-off employees shall be made whole for any loss
of earnings and other benefits suffered as a result of
the unlawful layoffs. Backpay shall be computed in ac­
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondents, Trim Systems, Inc. and Jenkins Design
Systems, Inc., alter egos, Ypsilanti, Michigan, their of­
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating their collective-bargaining agree­
ment with the Union and refusing to pay contractually
mandated fringe benefits, including vacation and holi­
day pay, insurance (health and welfare), and pension
benefits owing for the following unit employees, to
said employees and/or the appropriate fringe benefits
funds:
All full-time and regular part-time carpenter em­
ployees employed by Respondent Trim Systems,
Inc. in residential construction work at its various
jobsites involving residential construction in
Wayne, Oakland, Macomb, Sanilac, St. Clair,
Monroe, Washtenaw, Livingston, Genesee,
Lapeer, Tuscola, and Huron counties; but exclud­
ing all office clerical employees, guards and su­
pervisors as defined in the Act.
2 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondents’
delinquent contributions during the period of the delinquency, the
Respondents will reimburse the employee, but the amount of such
reimbursement will constitute a setoff to the amount that the Re­
spondents otherwise owe the fund.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time carpenter em­
ployees employed by Respondent Jenkins Design
Systems, Inc. in residential construction work at
its various jobsites involving residential construc­
tion in Wayne, Oakland, Macomb, Sanilac, St.
Clair, Monroe, Washtenaw, Livingston, Genesee,
Lapeer, Tuscola, and Huron counties; but exclud­
ing all office clerical employees, guards and su­
pervisors as defined in the Act.
(b) Ceasing doing business and unilaterally transfer-
ring unit employees without notice to and/or bargain­
ing with the Union with respect to the decision and/or
the effects of the closing and in order to evade its con­
tractual obligations under the collective-bargaining
agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise 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.
(a) Give effect to the terms of the collective-bargain­
ing agreement with the Union, effective from August
15, 1993, until August 15, 1995, and make whole the
unit employees by paying them and/or the fringe bene­
fit funds all amounts the Respondents have failed to
pay, such as the contractually required fringe benefits,
including vacation and holiday pay, insurance (health
and welfare), and pension benefits, in the manner set
forth in the remedy section of this decision.
(b) Restore the Respondents’ operation as it existed
prior to December 31, 1994, including offering to rein-
state to their same or substantially equivalent positions
of employment, all unit employees, if any, laid off as
a consequence of the December 31, 1994 closure, dis­
placing if necessary, any persons hired since December
31, 1994, provided that nothing in this Order shall pre­
clude Respondent TS, after it has complied with the
terms of this Order, from changing its operation for
lawful reasons, provided that it has fulfilled any obli­
gation to bargain with the Union regarding such deci­
sion or its effects.
(c) Make whole any unit employee laid off as a re­
sult of the unilateral closure for any loss of earnings
and other benefits suffered as a result of the unlawful
layoffs, in the manner set forth in the remedy section
of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts
due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Ypsilanti, Michigan, copies of the at­
tached notice marked ‘‘Appendix.’’3 Copies of the no­
tice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no­
tices are not altered, defaced or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since February 13, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. January 17, 1997
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
3 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
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.’’
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
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT repudiate our collective-bargaining
agreement with the Union or refuse to pay contrac­
tually mandated fringe benefits, including vacation and
holiday, insurance (health and welfare), and pension
benefits owing for the following unit employees, to
TRIM SYSTEMS, INC. 5
said employees and/or the appropriate fringe benefits
funds:
All full-time and regular part-time carpenter em­
ployees employed by Trim Systems, Inc. in resi­
dential construction work at its various jobsites
involving residential construction in Wayne, Oak-
land, Macomb, Sanilac, St. Clair, Monroe,
Washtenaw, Livingston, Genesee, Lapeer,
Tuscola, and Huron counties; but excluding all of­
fice clerical employees, guards and supervisors as
defined in the Act.
All full-time and regular part-time carpenter em­
ployees employed by Jenkins Design Systems,
Inc. in residential construction work at its various
jobsites involving residential construction in
Wayne, Oakland, Macomb, Sanilac, St. Clair,
Monroe, Washtenaw, Livingston, Genesee,
Lapeer, Tuscola, and Huron counties; but exclud­
ing all office clerical employees, guards and su­
pervisors as defined in the Act.
WE WILL NOT cease doing business and unilaterally
transferring unit employee(s) without notice to and/or
bargaining with the Local 1234, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO with re­
spect to the decision and/or the effects of the closing
of Trim Systems, Inc. and in order to evade our con­
tractual obligations under the collective-bargaining
agreement.
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.
WE WILL give effect to the terms of the collective-
bargaining agreement with the Union, effective from
August 15, 1993, until August 15, 1995, and make
whole the unit employees by paying them and/or the
fringe benefit funds all amounts we have failed to pay,
such as the contractually required fringe benefits, in­
cluding vacation and holiday pay, insurance (health
and welfare), and pension benefits, in the manner set
forth in a decision of the National Labor Relations
Board.
WE WILL restore the operations of Trim Systems,
Inc. as they existed prior to December 31, 1994, in­
cluding offering to reinstate to their same or substan­
tially equivalent positions of employment, all unit em­
ployees, if any, laid off as a consequence of the De­
cember 31, 1994 closure, displacing if necessary, any
persons hired since December 31, 1994, provided that
nothing in this order shall preclude Trim Systems, Inc.,
after we have complied with the terms of this order,
from changing our operation for lawful reasons, pro­
vided that we have fulfilled any obligation to bargain
with the Union regarding such decision or its effects.
WE WILL make whole any unit employee laid off as
a result of the unilateral closure for any loss of earn­
ings and other benefits suffered as a result of the un­
lawful layoffs, in the manner set forth in a decision of
the National Labor Relations Board.
TRIM SYSTEMS, INC. AND JENKINS DE-
SIGN SYSTEMS, INC.