R. & H. Cabinet & Building Co.

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. E. Droese, d/b/a R. & H. Cabinet & Building Company and Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 8-CA-5495 corrections described below, adopts the findings of fact, conclusions of law, and recommendations of the Trial Examiner.2 ORDER May 19, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On September 19, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above -entitled pro- ceeding in which he : ( 1) granted the General Counsel's motion for summary judgment on the ground that Respondent had neither filed an answer to the complaint, nor a response to the motion for summary judgment; (2) found , on the basis of the allegations of the complaint which he accordingly deemed to be admitted, that Respondent had engaged and was engaging in the unfair labor practices alleged in the complaint ; and (3) recom- mended that Respondent cease and desist from such unfair labor practices and take certain affirmative action, all as set forth in the attached Trial Examiner's Decision. Thereafter , Respondent filed a motion to dismiss or in the alternative , motion for a rehearing and exceptions to Trial Examiner's Decision , and a supporting brief. General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs, and briefs in opposition to Respondent 's motion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in con- nection with this case to a three -member panel. The Board having reviewed the Trial Examiner 's Deci- sion , the motions , exceptions, and briefs referred to above , and the entire record in this case , hereby (1) denies Respondent's motion to dismiss, or in the alterna- tive, motion for rehearing;' and (2) subject to certain i Respondent, by its motions, alternatively requests dismissal of the complaint or resubmission of the case to the Trial Examiner, with leave to file an answer and be provided an opportunity for a hearing General Counsel and the Charging Party oppose these motions Dismissal is sought solely on the asserted ground that Respondent is engaged in an intrastate retail business, and that the complaint does not allege nor does the record otherwise establish that Respondent's annual gross volume of business meets the $500,000 discretionary stand- ard normally applied by the Board for assertion of jurisdiction over employers in a retail business Respondent represents that, in fact, its gross volume of business for the calendar year ending January 31, 1969, was less than $350,000 00. Respondent's motion for a "rehear- ing" sets forth no basis for reversing the Trial Examiner's findings and conclusions other than the one stated in its motion to dismiss This is confirmed by Respondent's exceptions to the Trial Examiner's Decision and its supporting brief. These documents reveal that-except for one minor particular which is conceded by the other parties to be inaccurate, and which we correct below-Respondent does not affirma- tively challenge the accuracy of any of the Trial Examiner's specific findings save as they are related to its basic contentions that its operations are retail in nature and do not meet the Board's $500,000 jurisdiction standard for retail interprises We reject Respondent's motions for the following reasons First, we find that Respondent has not shown good cause for failing to Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, as herein modified, and hereby orders that the Respondent, H. E. Droese, d/b/a R. & H. Cabinet & Building Company, Rome, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order with the following modification. Delete paragraph 2(a) of the Trial Examiner's recom- mended Order, and substitute therefor: file an answer to the complaint, even though it was on notice that it was required to do so-a failure which was subsequently compounded by its failure to file any response to the General Counsel's motion for summary judgment or to the Trial Examiner's Order to Show Cause why such summary judgment should not be granted. Respondent's belated explanation , that it had "never used an attorney" and did not retain one in this case until after summary judgment was granted, does not impress us as adequate excuse Secondly , Respondent's conten- tion that the Board lacks jurisidiction over its operations is without merit Respondent does not even now affirmatively challenge the accuracy of the facts alleged in the complaint relating to the indirect inflow of material to Respondent's construction sites from out-of-state sources It is thus clear that the Board has statutory jurisdiction over Respondent. Finally, even if it be assumed that Respondent's gross volume of business does not satisy the Board's retail industry standards, this would not control our disposition of this case in any event, as the Board has indicated in earlier cases that it will assert jurisdiction over employers who, like the Respondent, are engaged in the "building and construction industry" if either the retail or nonretail jurisdictional standard is satisfied See, e g , Harry Tancredi, 137 NLRB 743, 745, Hod Carriers' Local No 652, General Laborers' Union AFL-CIO (Earl C Worley), 147 NLRB 380, 381, Charles E. Lake Construction Co , 136 NLRB 1207. S In their respective exceptions, each of the parties asserts that the effective term of the collective-bargaining agreement described in the complaint as commencing on January 1, 1969, was orally changed to February 1, 1969 As all parties thus agree that the effective date of the contract was February I, 1969, we shall correct the Trial Examin- er's Decision and the Board's Order accordingly The exceptions of the General Counsel and the Charging Party also assert that the contract's double time pay provisions-which Respondent unilaterally modified-are inaccurately described in all the formal docu- ments herein as requiring double time for hours worked over 40 They request that the record be corrected to relate Respondent's unlawful unilateral action to the terms of the contract and that the recommended order be revised accordingly. We grant this request since we perceive no prejudice to the Respondent in the circumstances. We deny, however, the further request of General Counsel and the Charging Party that the remedial order recommended by the Trial Examiner be expanded to provide that Respondent pay into the Cuyaho- ga, Lake, Geauga and Ashtabula Counties Carpenters District Council Pension Fund, its Hospitalization Fund, and the Carpenters' Joint Apprenticeship and Training Program Trust, contributions allegedly required by the terms of the contract. The complaint dyes not specifically allege as an unfair labor practice Respondent's failure to make such contributions into these funds nor was any reference thereto or to the contract's requirements concerning them made in the General Coun- sel's motion for summary judgment. Since Respondent was not put on timely notice that Respondent's alleged default in this respect was involved in the complaint and it was not afforded an opportunity for a hearing thereon, we believe it would be a denial of procedural due process for us at this time to expand the remedy in the manner requested 182 NLRB No. 76 R. & H. CABINET & BUILDING CO. "(a) Make its employees whole for any loss of pay suffered by them since February 1, 1969, as a result of the Respondent's refusal and failure to pay double time for hourly work in accordance with provisions for double time hourly pay which are set forth in said collective-bargaining agreement between Respondent and the Union, with interest at 6 percent per annum on any amounts due." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge of unfair labor practices filed on June 5, 1969, by Cuyahoga , Lake, Geauga and Ashtabula Counties Carpenters ' District Council , United Brother- hood of Carpenters and Joiners of America , AFL-CIO, and duly served , the General Counsel of the Board, on July 24, 1969, by the Acting Regional Director for Region 8 (Cleveland , Ohio), issued and duly served a Complaint and Notice of Hearing alleging that H. E. Droese , d/b/a R . & H. Cabinet & Building Company, Rome , Ohio , the Respondent , had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act (29 U.S.C.A. 141, et seq.). Inter alia the complaint contained the following noti- fication to the Respondent: You are further notified that pursuant to Sections 102.20 and 102.21 of the Board 's Rules and Regula- tions , the Respondent shall file with the undersigned Acting Regional Director , acting in this matter ,as agent of the National Labor Relations Board, and original and four (4) copies of an answer to said Complaint within ten ( 10) days from the service thereof, and that unless it does so all of the allega- tions in the Complaint shall be deemed to be admit- ted to be true and may be so found by the Board. Under date of August 27, 1969, Counsel for the Gener- al Counsel filed a motion for summary judgment alleging as ground therefor that Respondent had not filed an answer to the complaint . In part , the motion for summary judgment stated that: Respondent has not filed any answer in the man- ner required by Section 102.20 to the Complaint and Notice of Hearing within 10 days from the date of service thereof , nor at any time to the present date of August 27, 1969, even though this matter has been brought to Respondent 's attention by several telephone conversations with him point- ing out that he had failed to file an answer as required by the Board 's Rules and Regulations. A copy of the motion for summary judgment was duly served on the Respondent . The record does not disclose any response thereto by the Respondent. On September 2, 1969 , I issued an Order to Show Cause on motion of General Counsel for summary judg- ment , in which the parties were directed to show cause in writing , if cause they had, on or before September 15, 1969, as to whether or not the motion for summary judgment should be granted . The Order further recited 519 that , "If no response disclosing material unresolved issues litigable before and, requiring hearing by a trial examiner is filed by September 15, 1969, the motion for summary judgment may be granted forthwith." Cop- ies of the Order to Show Cause were duly served on the Respondent. No response to the Order to Show Cause has been received from any party, including Respondent. The Board's rules (Rules and Regulations and State- ments of Procedure, National Labor Relations Board, Series 8, as amended) provide that in default of an answer the allegations of the complaint shall be true and shall be so found unless good cause to the contrary is shown. Thus, Section 102.20 of the rules states, in part, as follows: The Respondent shall, within 10 days from the service of the complaint, file an answer thereto. . . . All allegations in the complaint, if no answer is filed , or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, 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. No answer having been filed to the complaint, no response having been filed by the Respondent to the motion for summary judgment or to the Order to Show Cause, and no cause to the contrary being shown, the allegations of the complaint are deemed to be admitted to be true, and it is so found. Accordingly, upon the basis of the record before me, including the complaint, I make the following fur- ther: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT H. E. Droese , an individual , is, and has been at all times material herein, an individual proprietor doing business under the trade name and style of R. & H. Cabinet & Building Company . Respondent maintains, and has maintained at all times material herein, its principle office and place of business in Rome, Ohio, where it is engaged in the construction of homes . During the calendar year 1968, Respondent, in the course and conduct of its business operations in Rome , Ohio, pur- chased, transferred , and delivered to it construction jobsites materials such as lumber and other home building materials valued in excess of $50,000 , which materials were transported to said jobsites and received from other enterprises , including , inter alia, Forest City Mate- rials Co . and Laird Lumber Company located in the State of Ohio , which other enterprises had received the aforesaid materials directly from states other than the State of Ohio. Respondent is now , 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. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent is now , and has been at all times material herein , an employer engaged in business primarily in the building and construction industry within the meaning of Section 8(f) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is now , and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act The Union is a labor organization of which building and construction employees are members within the meaning of Section 8(f) of the Act III THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act All employees performing carpenter work, exclud- ing office clerical employees , and all guards , profes- sional employees and supervisors as defined in the Act On August 14, 1968, Respondent and the Union execu- ted a collective-bargaining agreement covering all of the employees in the appropriate unit, which agreement by its terms was effective during the period from January 1, 1969, to April 30, 1970, inclusive At all times material herein , the collective-bargaining agreement described above constituted an agreement covering employees engaged in the building and construc- tion industry within the meaning of Section 8(f) of the Act Since on or about January 1, 1969, and continuing to date , Respondent , without giving prior notice to, or consultation with, the Union, unilaterally changed existing rates of pay , wages , or other terms and condi- tions of employment'of the employees in the appropriate unit so as to alter the existing rates of pay, wages, or other terms and conditions of employment , in that Respondent refused and failed to pay any of its employ- ees double time for hourly work over forty hours per week, and has, instead, paid each of them at the rate of one and a half times their regular hourly rate for such work Commencing on or about April 29, 1969, and continu- ing to date , Respondent has repudiated , and/or attempted to rescind , the entire agreement described above, and has at all times since that date refused to abide by any of the terms of said agreement By the acts described above and by each of said acts, Respondent did interfere with , restrain , and coerce, and is interfering with, restraining , and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, and did thereby engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act By the acts described above, and by each of said acts, Respondent did refuse to bargain collectively, and is refusing to bargain collectively , with the representative of its employees , and did thereby engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act The acts of Respondent described above occurring in connection with its operations described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings, conclusions, and the entire record in the case and pursuant to Section 10(c) of the Act, I recommend that the Board issue the following ORDER H E Droese , d/b/a R & H Cabinet & Building Company, its officers , agents, assigns , and successors shall 1 Cease and desist from (a) Unilaterally changing existing rates of pay , wages, hours, or other terms or conditions of employment of employees without prior notice to or consultation with the collective-bargaining representative of such employ- ees (b) Repudiating or rescinding collective-bargaining agreements with the representative of its employees, or refusing to abide by the terms of said agreements (c) Refusing to bargain with the Union (Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters' Dis- trict Council , United Brotherhood of Carpenters and Joiners of America , AFL-CIO), or any other collective- bargaining representative of its employees (d) Interfering with, restraining, or coercing its employees in the exercise of their right of self-organiza- tion , to form labor organizations , join or assist the Union , or any other labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or any other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities , except as authorized in Section 8(a)(3) and 8 (f) of the Act 2 Take the following affirmative action required to effectuate the policies of the Act (a) Make its employees whole for any loss of pay suffered by them since January 1, 1969, as a result of the Respondent's refusal and failure to pay employees double time for hourly work over 40 hours per week, with interest at 6% per annum on any amounts due (b) Notify the Union that it will abide by the terms of the existing collective-bargaining agreement (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records and reports and other records neces- sary to ascertain the amount of backpay due employees (d) Upon request bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit R & H CABINET & BUILDING CO 521 (e) Post at its Rome , Ohio , place of business , copies of the attached notice marked "Appendix "' Copies of said notice , on forms provided by the Regional Director for Region 8, shall after being signed by a duly authorized representative of Respondent , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after , in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced or covered by any other material (f) Notify the Regional Director for Region 8, in writing , within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith 2 ' In the event this recommended Order is adopted by the Board the words A Decision and Order shall be substituted for the words Recommended Order of a Trial Examiner in the notice In the further event that the Board s order is enforced by a decree of the United States Court of Appeals the words A Decree of a United States Court of Appeals Enforcing an Order shall be substituted for the words A Decision and Order 2 In the event these recommendations are adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 8 in writing within 10 days from the receipt of this order what steps Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Exam- iner of the National Labor Relations Board we hereby notify our employees that WE WILL NOT change the rates of pay , wages, or other terms and conditions of employment of employees without first bargaining with their collec- tive bargaining representative under the Act WE WILL NOT repudiate or rescind collective bargaining contracts made with the collective bar- gaining representative of any of our employees, or refuse to abide by such contracts WE WILL NOT interfere with , restrain , or coerce employees in their right to join or assist Cuyahoga, Lake , Geauga and Ashtabula Counties Carpenters' District Council , United Brotherhood of Carpenters and Joiners of America , AFL-CIO , or any other union WE WILL pay double time for overtime to all employees who worked over 40 hours in any week since January 1, 1969, provided they are covered by our contract with the Union We will pay interest of 6 percent on any such money due any employee WE WILL abide by the contract with the Union WE WILL bargain with the Union on demand as collective bargaining representative of all employ ees in the following appropriate unit All employees, performing carpenter work, excluding office clerical employees , and all guards, professional employees and supervi- sors as defined in the Act Dated By H E DROESE , D/B/A R & H CABINET & BUILDING COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced , or covered by any other material Any questions concerning this notice may be directed to the Board's Regional Office, 1695 Federal Office Build- ing, 1240 East Ninth Street , Cleveland , Ohio 44199, Telephone 216-522-3715