Yates Drywall, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1981

256 N.L.R.B. 591 (N.L.R.B. 1981)

YATES DRYWALL, INC. 591
Yates Drywall, Inc. and Painters District Council
No. 22, International Brotherhood of Painters
and Allied Trades, AFL-CIO. Case 7-CA-
18480
June 16, 1981
DECISION AND ORDER
Upon a charge filed on November 5, 1980, by
Painters District Council No. 22, International
Brotherhood of Painters and Allied Trades, AFL-
CIO, herein called the Union, and duly served on
Yates Drywall, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7,
issued a complaint and notice of hearing on De-
cember 30, 1980, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, complaint, and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding. Respondent failed to file an answer to the
complaint.
On February 25, 1981, counsel for the General
Counsel filed directly with the Board a motion to
transfer the case to and continue the proceedings
before the Board and a Motion for Summary Judg-
ment based on Respondent's failure to file an
answer as required by Sections 102.20 and 102.21
of the National Labor Relations Board's Rules and
Regulations, Series 8, as amended. Subsequently,
on March 3, 1981, the Board issued an order trans-
ferring proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. Re-
spondent did not file a response to the Notice To
Show Cause and, accordingly, the allegations of
the complaint stand uncontroverted.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the Respondent
shall so state, such statement operating as a
denial. All allegations in the complaint, if no
answer is filed, or any allegation in in the com-
256 NLRB No. 87
plaint not specifically denied or explained in
an answer filed, unless the respondent shall
state in the answer that he is without knowl-
edge, shall be deemed to be admitted to be
true and shall be so found by the Board, unless
good cause to the contrary is shown.
The complaint and notice of hearing served on
Respondent on April 11, 1979, specifically stated
that unless an answer to the complaint was filed
within 10 days from the service thereof "all of the
allegations in the Complaint shall be deemed to be
admitted true and may be so found by the Board."
Further, Respondent was notified by letter dated
January 30, 1981, that an answer to the complaint
had not been received, and that summary judgment
would be sought unless an answer to the complaint
was filed by February 12, 1981. As noted above,
Respondent has not filed an answer to the com-
plaint, nor did it respond to the Notice To Show
Cause. No good cause to the contrary having been
shown, in accordance with the rules set forth
above, the allegations of the complaint are deemed
to be admitted and are found to be true. Accord-
ingly, we grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a
Michigan corporation with its office and place of
business at 1215 Shady Oaks, in the city of Ann
Arbor, Michigan, has been engaged in the con-
struction industry as an installer of interior drywall.
During the 12 months ending November 30, 1980,
Respondent, in the course and conduct of its busi-
ness operations, provided services valued in excess
of $50,000 to Oxford Development Corporation as
a subcontractor on F.H.A. project No. 047-35121-
PM-PAH-L8. Oxford Development Corporation is
located in Okemos, Michigan, and is a subsidiary of
the Oxford group which has offices located in In-
dianapolis, Indiana, and Washington, D.C. During
the period mentioned above, Oxford Development
Corporation purchased supplies and materials
valued in excess of $50,000 from suppliers located
outside the State of Michigan and caused such sup-
plies and materials to be transported directly from
said out-of-state sources directly to its construction
sites located within the State of Michigan.
i Eagle lruck and Trader Rental Divistion of E. r & 7. L tasng. Inc,
211 N.RB 8)4 (1974)
YATES DRYWALL, INC
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Painters District Council No. 22, International
Brotherhood of Painters and Allied Trades, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All drywall and taping journeymen, appren-
tices, foremen, and acting foremen employed
by the Respondent at its various construction
projects; but excluding guards and supervisors
as defined in the Act.
At all times material herein, the Union has been
the designated exclusive collective-bargaining rep-
resentative of the above-described employees. Such
recognition has been embodied in successive collec-
tive-bargaining agreements, with the most recent
agreement effective by its terms from June 1, 1978,
to May 31, 1980. This most recent agreement pro-
vides, inter alia, that it will remain in effect for said
term and from year to year thereafter unless either
party desires a change, in which case it is to notify
the opposite party in writing at least 60 days prior
to May 31, 1980, or 60 days prior to the anniversa-
ry date of any extension thereof. Neither Respond-
ent nor the Union served on the other any notice
of modification prior to May 31, 1980. This most
recent agreement further provides, in pertinent
part, that Respondent shall maintain accurate and
complete payroll records for all employees covered
by the agreement, that Respondent shall make reg-
ular monthly or weekly contributions to the trust-
ees of the Painters Union Deposit Fund on behalf
of its unit employees covered by the agreement for
purposes of certain insurance, vacation, and other
benefits, and that accountants selected by the trust-
ees of the Deposit Fund may make regular audits
of Respondent's payroll records to ascertain com-
pliance with construction requirements of the
agreements.
Since December 1979, and continuing to date,
Respondent has failed and refused, despite continu-
ing requests by administrators of the fringe benefit
funds to submit the contractually required monthly
fringe benefit reports and contributions on behalf
of the unit employees to the trustees of the fringe
benefit funds. Since June 26, 1980, agents of the
fringe benefit funds described in the contract have
requested that Respondent furnish them payroll
and other records to determine Respondent's com-
pliance with the benefit contribution provisions of
the applicable agreement. Respondent, by its agent,
Loren Yates, has failed and refused to comply with
the foregoing requests.
We find that by the aforesaid conduct Respond-
ent has refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit and that such con-
duct violated Section 8(a)(5) and (I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We have found that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally, and with-
out notice to or discussion with the Union, failing
and refusing to make monthly fringe benefit reports
and contributions on behalf of unit employees to
the trustees of the fringe benefit funds as required
by the applicable agreement in effect between the
Union and Respondent. In order to dissipate the
effect of these unfair labor practices, we shall order
Respondent to furnish payroll and other records to
the administrators of the fringe benefit fund as pro-
vided in the applicable agreement and to make
whole its employees by paying to the Union's
fringe benefit funds the contributions which should
have been made pursuant to the applicable agree-
ment, retroactive to December 1979.2
i Because thile provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rateon unlawfully
withheld fund payments We leave to the compliance stage the question
whether Respondenll Yates Drywall Inc,. must pay any additional
Continued
YATES DRYIXALL, INC. 593
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Yates Drywall, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Painters District Council No. 22, International
Brotherhood of Painters and Allied Trades, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All drywall and taping journeymen, appren-
tices, foremen, and acting foremen employed by
Respondent at its various construction projects, but
excluding guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all the employ-
ees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By unilaterally, and without notice to or dis-
cussion with the Union, failing and refusing since
on or about December 1979, to contribute to the
Union's fringe benefit fund the sums of money re-
quired by the written agreement entered into be-
tween the Union and Respondent and by failing
and refusing to furnish payroll and other records in
accordance with the applicable agreement, Re-
spondent has refused to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate bargaining unit
described above, and thereby has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Yates Drywall, Inc., Ann Arbor, Michigan, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
amounts into the benefit funds in order to satisfy our "make whole"
remedy These additional amounts may be determined, depending on the
circumstances of each case, by reference to provisions ill the documents
governing the funds at issue and, where there are no governing proi-
sions, to evidence of any loss directly attributable to the unla ful '.ith-
holding action, which might include the loss of return on inxestmcill f
the portion of funds withheld, additional administrative cost.. etc., but
not collateral losses Merryweather Optical Company, 240 N.RB 121
(1979).
(a) Refusing to bargain collectively with Painters
District Council No. 22, International Brotherhood
of Painters and Allied Trades, AFL-CIO, by uni-
laterally, and without notice to or discussion with
the aforesaid Union, failing and refusing to submit
monthly fringe benefits reports and contributions
on behalf of unit employees as required pursuant to
the applicable written agreement between the
Union and Respondent.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with
Painters District Council No. 22, International
Brotherhood of Painters & Allied Trades, AFL-
CIO, with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
The appropriate unit for the purposes of collective
bargaining is:
All drywall and taping journeymen, appren-
tices, foremen, and acting foremen at its var-
ious construction projects, but excluding
guards and supervisors as defined in the Act.
(b) Make whole its employees by making contri-
butions into the Union's fringe benefit funds and
furnish delinquent fringe benefit contribution re-
ports in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary or useful in check-
ing compliance with this Order.
(d) Post at its facility in Ann Arbor, Michigan,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
:' In the event that this ()rder is enforced b' a Judgment of a Jlliled
Stater Court (of Appea;l,. the fiords in the ntice reading 'PT-ltcd by
Order of the National ahbor Relaions oard" shall read "'postd 'urlu-
ant to) a Judgnlenl of the rrUnited SllaS C'ourt of Appeals Fnforcinig an
Order (of the N.aitiol I ashor Relations Hoard
The Board, upon the basis of the foregoing facts
YATES DRYWALL, INC
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Painters District Council No. 22, Interna-
tional Brotherhood of Painters and Allied
Trades, AFL-CIO, by unilaterally making
fringe benefit reports and contributions as re-
quired by the terms of the applicable agree-
ment between the Union and ourselves.
WE WILl. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment. The bargaining unit is:
All drywall journeymen, apprentices, fore-
men, and acting foremen, employed by the
Employer at its various construction proj-
ects; but excluding guards and supervisors as
defined in the Act.
WE WILL make our employees whole by
paying to the Union's fringe benefit funds the
contributions which should have been made
pursuant to the terms of our written agreement
with the above-named Union. WE WILL fur-
nish delinquent fringe benefit reports as re-
quired by our agreement with the Union.
YATES DRYWALL, INC.