Walldesign, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 2013

359 N.L.R.B. 524 (N.L.R.B. 2013)

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 52
Walldesign, Inc. and International Union of Painters
and Allied Trades District Council 15, Local
159, affiliated with International Union of Paint-
ers and Allied Trades of the United States and
Canada (IUPAT), AFL–CIO. Cases 28–CA–
071847 and 28–CA–078200
January 10, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The Acting General Counsel seeks summary judgment
in this case on the ground that the Respondent’s answer
admits all of the allegations of the consolidated com-
plaint. Upon charges and an amended charge filed by
International Union of Painters and Allied Trades Dis-
trict Council 15, Local 159, affiliated with International
Union of Painters and Allied Trades of the United States
and Canada (IUPAT), AFL–CIO (the Union), the Acting
General Counsel issued the consolidated complaint on
May 31, 2012, against Walldesign, Inc. (the Respond-
ent), alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act. The Respondent filed an an-
swer on November 1, 2012, admitting all of the allega-
tions of the consolidated complaint.
1

On November 7, 2012, the Acting General Counsel
filed with the Board a Motion for Summary Judgment.
Thereafter, on November 9, 2012, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Union filed a joinder supporting the Acting
General Counsel’s motion and requesting additional
remedies. The Respondent filed no response. The alle-
gations in the motion are therefore undisputed.
Ruling on Motion for Summary Judgment
As stated above, the Respondent’s answer admits all of
the allegations in the consolidated complaint. The Re-
spondent has not raised any defenses and has not re-
sponded to the notice to show cause. Accordingly, we
find that the allegations of the complaint are true and we
grant the Acting General Counsel’s Motion for Summary
Judgment.
2

On the entire record, the National Labor Relations
Board makes the following

1 The Respondent’s answer stated that the Respondent was with-
drawing an earlier answer, filed June 14, 2012.
2 Black Bear Mining, 325 NLRB 960 (1998).
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent has been a corpo-
ration with an office and place of business in Las Vegas,
Nevada, and has been engaged as a drywall contractor in
the construction industry doing residential construction.
In conducting its operations during the 12-month peri-
od ending January 4, 2012, the Respondent performed
services valued in excess of $50,000 in States other than
the State of Nevada.
The Respondent admits, and we find that the Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:

Michael Bello — Chief Executive Officer
Steve Huntington — President
David Grogg — Vice President of Operations

At all material times the Respondent’s attorney has
been an agent of the Respondent within the meaning of
Section 2(13) of the Act.
The following employees of the Respondent constitute
a unit (the 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 Light Commercial
Journeymen, Residential/Multi Family Construction
Journeymen, Apprentices, and Light Commercial and
Residential Helpers/Pre-Apprentices employed by Re-
spondent and performing work in Clark County, Neva-
da, as described by the Memorandum of Understanding
between Respondent and the Union dated December
10, 2009 (the Agreement), EXCLUDING office cleri-
cal employees, professional employees, guards and su-
pervisors as defined by the Act.

About December 10, 2009, the Respondent, an em-
ployer engaged in the construction industry, entered into
the Agreement whereby it agreed to be bound by the
Painters & Decorators Master Agreement (the Master
Agreement) between the Union and the Painting and
Decorating Contractors of America, Southern Nevada
WALLDESIGN, INC. 525

Chapter, effective from December 10, 2009, through
June 30, 2012.
About December 10, 2009, the Respondent entered in-
to the Master Agreement between the Union and the
Painting and Decorating Contractors of America, South-
ern Nevada Chapter, effective from December 10, 2009,
through June 30, 2011.
About July 1, 2011, the Master Agreement was auto-
matically extended between the Respondent and the Un-
ion by the terms of the Master Agreement, and was effec-
tive from July 1, 2011, through June 30, 2012.
By entering into the Agreement and the Master
Agreement, described above, the Respondent recognized
the Union as the exclusive collective-bargaining repre-
sentative of the unit without regard to whether the Un-
ion’s majority had been established under Section 9(a) of
the Act.
From about December 10, 2009, to at least June 30,
2012, based on Section 9(a) of the Act, the Union has
been the limited exclusive collective-bargaining repre-
sentative of the unit.
3

Since about July 4, 2011, the Respondent has refused
to continue in effect all the terms and conditions of the
Agreement and the Master Agreement by failing to fol-
low the wage, benefit, hiring hall, and other terms of the
Agreement and the Master Agreement with respect to
projects covered by the Agreement and the Master
Agreement, including the Pacific Pines project and Col-
lege Villas project.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining.
The Respondent engaged in the conduct described
above without the Union’s consent.
Since about November 8, 2011, the Union has request-
ed in writing that the Respondent furnish the Union with
the following information:
From December 2009 to the current date, no later than
the close of business day of Friday, November 23, 2011:

1. A complete list of all projects in area jurisdiction.

3 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) of the
Act and that the Union is therefore the limited 9(a) representative of the
unit employees for the period covered by the contract. See, e.g., A.S.B.
Cloture, Ltd., 313 NLRB 1012, 1012 fn. 2 (1994) (citing Electri-Tech,
Inc., 306 NLRB 707 fn. 2 (1992)), enfd. 979 F.2d 851 (6th Cir. 1992),
and John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de-
nied 488 U.S. 889 (1988).
2. A complete list of employees who are currently em-
ployed or have been employed within the last calendar
year, the date of hire for each employee, date of termi-
nation (if applicable), classification of each employee
and the rate of wages being paid to each employee.

The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about November 8, 2011, the Respondent has
failed and refused to furnish the Union with the infor-
mation requested by it as described above.
Since about December 22, 2011, the Union has re-
quested in writing that the Respondent furnish the Union
with the following information:

1. Please provide a list of all jobs which your company
has performed in Nevada for the period December 10,
2009 to present. The list should include the name of
the job, the location, the period during which the job
was performed and the names of the employees who
performed bargaining unit work who worked on that
job. This should include all jobs which were in pro-
gress as of that date of December 10, 2009, as well as
all jobs which commenced after that date. The list
should be current and up to date.

2. Please provide a list of all employees who worked
doing bargaining unit work for the period December
10, 2009 to present. For each employee give the em-
ployee’s name, address, rates of pay, classifications and
dates of hire or termination including any reason why
they were terminated.

3. Please provide a copy of all company benefit plans
applicable to the employees in the bargaining unit.

The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about December 22, 2011, the Respondent has
failed and refused to furnish the Union with the infor-
mation requested by it as described above.
About December 29, 2011, the Respondent entered in-
to a contract with Imperial Building Group, Inc. (Imperi-
al) under which Imperial was to perform for the Re-
spondent drywall and other construction work located at
the Pacific Pines and College Villas projects.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and the effects
of this conduct and without first bargaining with the Un-
ion to a good-faith impasse.
Since about January 12, 2012, the Union has requested
in writing that the Respondent furnish it with the infor-
mation in the letter attached to the consolidated com-
plaint as Exhibit A.
4

The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about January 12, 2012, the Respondent has
failed and refused to furnish the Union with the infor-
mation requested by it as described above.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees within the meaning of Section
8(d) of the Act in violation of Section 8(a)(5) and (1) of
the Act. The Respondent’s unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to continue in effect all the
terms and conditions of the Agreement and the Master
Agreement by failing to follow the wage, benefit, hiring
hall, and other terms of those Agreements with respect to
projects covered by them, including the Pacific Pines
project and College Villas project, we shall order the
Respondent to honor and comply with all the terms and
conditions of the Agreement and the Master Agreement,
and any automatic renewal or extension of them, with
respect to projects covered by them, including the Pacific
Pines project and College Villas project. We shall also
order the Respondent to make the unit employees whole
for any loss of earnings and other benefits they may have
suffered as a result of the Respondent’s unlawful con-

4 The Union’s January 12, 2012 letter is incorporated into this Deci-
sion and Order as “Appendix B.”
duct. Such amounts shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). In the
event that the Agreement and the Master Agreement pro-
vide for contributions to benefit funds with respect to
projects covered by those Agreements, including the Pa-
cific Pines project and College Villas project, we shall
order the Respondent to make all contractually-required
contributions to these funds that they have failed to make
since July 4, 2011, including any additional amounts due
the funds on behalf of unit employees in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
5
Additionally, the Respondent shall reimburse
the unit employees for any expenses ensuing from its
failure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such
amounts are to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra, and
Kentucky River Medical Center, supra.
Further, having found that the Respondent violated
Section 8(a)(5) and (1) by entering into a contract with
Imperial Building Group, Inc., for the performance of
drywall and other construction work located at the Pacif-
ic Pines and College Villas projects, without prior notice
to the Union and without affording the Union an oppor-
tunity to bargain with respect to the Respondent’s con-
duct or the effects of this conduct, we shall order the Re-
spondent to rescind this unilateral change and restore the
status quo until such time as the Respondent and the Un-
ion have bargained in good faith to an agreement or im-
passe on the terms and conditions of employment of the
unit employees. In addition, we shall order the Respond-
ent to make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of the unlawful change, in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra, com-
pounded daily as prescribed in Kentucky River Medical
Center, supra.
Additionally, in accordance with our recent decision in
Latino Express, Inc., 359 NLRB 518 (2012), we shall

5 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
WALLDESIGN, INC. 527

order the Respondent to compensate the unit employees
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards and to file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each unit
employee.
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing and refusing to furnish
the Union with necessary and relevant information it
requested on November 8 and December 22, 2011, and
January 12, 2012, we shall order the Respondent to pro-
vide the Union with the requested information.
6

ORDER
The National Labor Relations Board orders that the
Respondent, Walldesign, Inc., Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Union of Painters and Al-
lied Trades District Council 15, Local 159, affiliated with
International Union of Painters and Allied Trades of the
United States and Canada (IUPAT), AFL–CIO (the Un-
ion), as the exclusive collective-bargaining representative
of the employees in the following unit during the term of
the Agreement and the Master Agreement effective July
1, 2011, through June 30, 2012, and any automatic ex-
tension of the agreements. The unit is:

All full-time and regular part-time Light Commercial
Journeymen, Residential/Multi Family Construction
Journeymen, Apprentices, and Light Commercial and
Residential Helpers/Pre-Apprentices employed by the
Respondent and performing work in Clark County,
Nevada, as described by the Memorandum of Under-
standing between the Respondent and the Union dated
December 10, 2009 (the Agreement), EXCLUDING
office clerical employees, professional employees,
guards and supervisors as defined in the Act.

(b) Failing to continue in effect all of the terms and
conditions of the Agreement and the Master Agreement
effective July 1, 2011, through June 30, 2012, and any

6 The Union has requested that the Board additionally order the Re-
spondent to post the appropriate Board notices for the time period be-
tween the issuance of the complaint and the date the notices are actually
posted; to mail the notices to the last known address of all employees
employed by the employer from 6 months of the filing of the charge
until the notices are mailed; and to post, at its own expense, the find-
ings in the Board’s decision along with notices. We deny the request
because the Union has not shown that the Board’s traditional remedies
are insufficient to remedy the Respondent’s violations. See Bruce
Packing Co., 357 NLRB 1084, 1084 1 fn. 4 (2011); First Legal Support
Services, 342 NLRB 350, 350 fn. 6 (2004).
automatic renewal or extension of them, including by
failing to follow the wage, benefit, hiring hall, and other
terms of those Agreements with respect to projects cov-
ered by them, including the Pacific Pines project and
College Villas project.
(c) Unilaterally entering into a contract for the perfor-
mance of drywall and other construction work without
affording the Union notice and an opportunity to bargain
with respect to such conduct and the effects of such con-
duct and without first bargaining with the Union to a
good-faith impasse.
(d) Failing and refusing to furnish the Union with re-
quested information that is necessary and relevant to the
performance of its duties as exclusive collective-
bargaining representative of the employees in the unit.
(e) 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) Honor and abide by the terms and conditions of the
Agreement and the Master Agreement effective July 1,
2011, through June 30, 2012, and any automatic exten-
sions of them, including by following the wage, benefit,
hiring hall, and other terms of those Agreements with
respect to projects covered by them, including the Pacific
Pines project and College Villas project.
(b) Rescind the unilateral contract with Imperial Build-
ing Group, Inc. for the performance of drywall and other
construction work located at the Pacific Pines and Col-
lege Villas projects, and restore the status quo until such
time as the Respondent and the Union have bargained in
good faith to an agreement or impasse on the terms and
conditions of employment of the unit employees.
(c) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s unlawful conduct, with inter-
est, in the manner set forth in the remedy section of this
decision.
(d) Compensate the unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each unit employee.
(e) Furnish the Union with the information it requested
by letters dated November 8 and December 22, 2011,
and January 12, 2012.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ords and reports, and all other records, including any
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix A.”
7
Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentatives, shall be posted and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense,
copies of the notice to all current employees and former
employees employed by the Respondent at any time
since about July 4, 2011.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX A
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
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT fail and refuse to bargain collectively
and in good faith with International Union of Painters
and Allied Trades District Council 15, Local 159, affili-
ated with International Union of Painters and Allied
Trades of the United States and Canada (IUPAT), AFL–
CIO (the Union), as the exclusive collective-bargaining
representative of the employees in the following unit
during the term of the Agreement and the Master
Agreement effective July 1, 2011, through June 30, 2012,
and any automatic extension of the agreements. The unit
is:

All full-time and regular part-time Light Commercial
Journeymen, Residential/Multi Family Construction
Journeymen, Apprentices, and Light Commercial and
Residential Helpers/Pre-Apprentices employed by us
and performing work in Clark County, Nevada, as de-
scribed by the Memorandum of Understanding be-
tween us and the Union dated December 10, 2009 (the
Agreement), EXCLUDING office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.

WE WILL NOT fail to continue in effect all of the terms
and conditions of the Agreement and the Master Agree-
ment effective July 1, 2011, through June 30, 2012, and
any automatic renewal or extension of them, including
by failing to follow the wage, benefit, hiring hall, and
other terms of those Agreements with respect to projects
covered by them, including the Pacific Pines project and
College Villas project.
WE WILL NOT unilaterally enter into a contract for the
performance of drywall and other construction work
without affording the Union notice and an opportunity to
bargain with us with respect to such conduct and the ef-
fects of such conduct and without first bargaining with
the Union to a good-faith impasse.
WE WILL NOT fail and refuse to furnish the Union with
requested information that is necessary and relevant to
the performance of its duties as exclusive collective-
bargaining representative of the employees in the unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL honor and abide by the terms and conditions
of the Agreement and Master Agreement, effective July
1, 2011, through June 30, 2012, and any automatic re-
newal or extension of them, including by following the
wage, benefit, hiring hall, and other terms of those
Agreements with respect to projects covered by them,
including the Pacific Pines project and College Villas
project.
WALLDESIGN, INC. 529

WE WILL rescind the unilateral contract with Imperial
Building Group, Inc. for the performance of drywall and
other construction work located at the Pacific Pines and
College Villas projects, and restore the status quo until
such time as we have bargained in good faith with the
Union to an agreement or impasse on the terms and con-
ditions of employment of the unit employees.
WE WILL make our unit employees whole for any loss
of earnings and other benefits they may have suffered as
a result of our unlawful conduct, with interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each unit
employee.
WE WILL furnish the Union with the information it re-
quested by letters dated November 8 and December 22,
2011, and January 12, 2012.

WALLDESIGN, INC.

530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 52

APPENDIX B
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532

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536

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537

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538

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539

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540

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541