Michigan Drywall Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michigan Drywall Corporation, M & D Drywall, Inc., and James F. Mullins and Painters District Council No. 22 of the International Brotherhood of Painters and Allied Trades, AFL-CIO and Car- penters District Council of Detroit, Wayne, Oak- land and Macomb Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 7-CA-13366 and 7-CA-13613 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 29, 1977, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a brief and the General Counsel and Charging Party, Painters District Council No. 22, filed cross-exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge, to modify his remedy,2 and to adopt his recommended Order,3 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dents, Michigan Drywall Corporation, M & D Drywall, Inc., and James F. Mullins, Southfield, Michigan, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete the words "earned on overtime" from paragraphs !(b) and 2(b) of the recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. We find merit in the General Counsel's exception to the inadvertent failure of the Administrative Law Judge to include as part of his jurisdictional findings facts which were alleged and admitted in the pleadings. Accordingly, we hereby correct this oversight by making the following jurisdictional finding of fact: During the fiscal year ending August 31. 1976. S & S Homes, Inc., in the course and conduct of its business operations constructed and sold residential homes and property within the State of Michigan to individual homeowners, the gross value of which exceeded $500.000. 2 In accordance with our decision in Florida Steel Corporation, 231 N LRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25., 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. I We agree with Charging Party Painters District Council No. 22's exceptions to the Administrative Law Judge's recommended Order which limits recovery for fringe benefit contnbutions to those which were earned on the basis of overtime work. Clearly, the only proper reimbursement remedy in these circumstances is one which provides for the full restoration of all fringe benefit contributions earned pursuant to the collective- bargaining agreements. Accordingly, we shall modify the recommended Order and notice by deletion of the words "earned on overtime," to permit the Charging Parties to recover all fringe benefit contributions owed them on the basis of straight time or overtime earnings, in conformity with the parties' collective-bargaining agreements. 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 the Painters District Council No. 22 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, and Carpenters District Council of Detroit, Wayne, Oakland and Ma- comb Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representatives of our employees within the appropriate units covered by our contracts with these Unions by refusing to furnish them or their agents information concerning the payment of fringe benefits to our employees in conformity with the agreements. The appropriate units are: All journeymen and apprentice tapers employed by Michigan Drywall Corporation including foremen supervising employees directly on the job, but excluding other supervisors and guards as defined in the Act. All journeymen and apprentice carpen- ters and joiners employed by Michigan Drywall Corporation including foremen supervising employees directly on the job, but excluding other supervisors and guards as defined in the Act. WE WILL NOT refuse to bargain collectively with the above-named Unions as required by law by refusing to make fringe benefit contributions for the employees covered by the above-mentioned contracts. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. 232 NLRB No. 36 120 MICHIGAN DRYWALL CORPORATION WE WILL make any fringe benefit contributions which we have failed to make on behalf of our employees in conformity with our contracts with the above-named Unions. WE WILL furnish the above-named Unions or their agents information concerning the payment of fringe benefits to our employees. MICHIGAN DRYWALL CORPORATION M & D DRYWALL, INC. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed in Case 7-CA-13366 on September 24, 1976, by Painters District Council No. 22 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, herein referred to as the Painters, was served on Michigan Drywall Corporation, M & D Drywall, Inc., and James F. Mullins, the Respondents herein, by registered mail on or about September 27, 1976. The charge filed in Case 7-CA- 13613 on December 21, 1976, by Carpenters District Council of Detroit, Wayne, Oakland and Macomb Coun- ties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein referred to as the Carpenters, was served on the Respondents Michigan Drywall Corporation and James F. Mullins on or about December 22, 1976. An amended charge was filed on January 14, 1977, and served on said Respondents by registered mail on or about January 17, 1977. An order consolidating the cases was entered on February 3, 1977. The complaints charged that the Respondents had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein referred to as the Act, by their refusal to furnish the Unions with information necessary for the administration of their contracts with the Michigan Drywall Corporation and by the Respondents' refusal to bargain collectively in that they unilaterally modified the terms of the contracts between Michigan Drywall Corporation and each union. The Respondents filed timely answers denying that they had committed any unfair labor practices alleged. The consolidated cases came on for hearing on March 7, 1977, at Detroit, Michigan. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. The Respondents filed a brief which has been carefully considered. Other parties argued orally. The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N. L. R. B. v. Walton Manufacturing (ompany & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in FINDINGS OF FACT,' CONCLUSIONS AND REASONS THEREFOR I. THE BUSINESS OF THE RESPONDENT Michigan Drywall Corporation is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Michigan. At all times material herein, Respondent Michigan Drywall has maintained its principal office and place of business at 22816 Thorncliff, Southfield, Michigan, herein called Michigan Drywall place of business. Michigan Drywall is, and has been at all times material herein, engaged in providing drywall installation and related services in the construction industry within the State of Michigan. During the fiscal year ending August 21, 1976, which period is representative of its operations during all times material herein, Respondent Michigan Drywall, in the course and conduct of its business operations, provided drywall and installation services emanating from its Southfield, Michigan, place of business, valued in excess of $100,000, of which services valued in excess of $75,000 were furnished to S & S Homes, Inc., a Michigan corporation with its principal office and place of business located at 23600 Van Born, Dearborn Heights, Michigan. During the fiscal year ending August 31, 1976, S & S Homes, Inc., received lumber which originated outside the State of Michigan, valued in excess of $40,000, which was transported to its place of business in interstate commerce, directly from States of the United States other than the State of Michigan. M & D Drywall, Inc., was at all times material herein a corporation duly organized under, and existing by virtue of, the laws of the State of Alabama. On or about December 31, 1973, Respondent M & D was incorporated in the State of Alabama by Respondent Mullins, J. Donald Eggert, and Marvin Pearson, with its place of business listed as Route 2, Gadsden, Alabama. On October 14, 1976, at the request of the above incorporators. and same stockholders, Respondent M & D was dissolved as an Alabama corporation. At all times material herein, Respondent Mullins has maintained a checking account at the First National Bank of Ashford, Alabama, which account he has sometimes utilized for the payment of wages to employees of Respondent Michigan Drywall and Respondent M & D, for the performance of work within the State of Michigan. Respondent Mullins is, and has been at all times material herein, the sole stockholder and controlling director and officer of Respondent Michigan Drywall. From December 31, 1973, the date of its incorporation, through October 14, 1976, the date of its dissolution, he was the president and controlling officer of Respondent M & D, and the sole owner of 980 of its 1,000 outstanding shares of its common, and only, stock. Respondent Mullins is the individual who contradiction to the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in light of the entire record. No testimony has been pretermitted. 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committed the alleged unfair labor practices set out in the complaints. Respondents Michigan Drywall, M & D, and Mullins are now and have been at all times material herein collectively an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 I1 THE LABOR ORGANIZATIONS INVOLVED The Carpenters and the Painters (herein sometimes referred to as the Unions) at all times material herein have been labor organizations within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES The Facts All journeymen and apprentice tapers employed by Michigan Drywall Corporation including foremen super- vising employees directly on the job, but excluding other supervisors and guards as defined in the Act, constitute a unit of employees appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. At all times since 1969. by virtue of successive collective- bargaining agreements between Respondent Michigan Drywall Corporation and the Painters, and continuing to date, the Painters has been the exclusive representative for the purposes of collective bargaining of the employees in the unit described in the paragraph above and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The collective-bargaining agreements, above referred to, provide, inter alia, for the payment by Respondent Michigan Drywall Corporation of moneys into various fringe benefit funds established for the benefit of employ- ees of signatory employers to said agreements. Commencing on or about August 13, 1976, and continu- ing to date, and more particularly on or about August 13, September 14, and October 11, 1976, the Painters, in order to administer the contract, has requested, and continues to request, that all Respondents supply to it all books, records, accounts, ledgers, and records of original entry for the period from October 1, 1973, through June 30, 1976, showing wages paid to employees and hours of work of employees under Respondent Michigan Drywall Corpora- tion's collective-bargaining agreements with the Painters, for purposes of an audit of said books and records by the administrators of the fringe benefit funds. Commencing on or about September 14, 1976, and continuing to date, Respondents have refused to furnish the Painters with the requested information set forth in the above paragraph, except for certain Michigan Drywall Corporation employee earnings records for the period of January 1, 1975, through June 30, 1976. All journeymen and apprentice carpenters and joiners employed by Michigan Drywall Corporation including 2 The foregoing facts are allegations in the complaints which were admitted by the Respondents in their answers. foremen supervising employees directly on the job, but excluding other supervisors and guards as defined in the Act, constitute a unit of employees appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. At all times since 1969, by virtue of successive collective- bargaining agreements, the current contract being by its terms effective from June 1, 1976, until June 1, 1978, between Respondent Michigan Drywall Corporation and the Carpenters and continuing to date, the Carpenters has been the exclusive representative for the purposes of collective bargaining of the employees in the unit described in the above paragraph and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. The collective-bargaining agreements, above referred to, all provide, inter alia, for the payment by Respondent Michigan Drywall of moneys into various fringe benefit funds established for the benefit of employees of Respon- dent Michigan Drywall, and further provide in article VII, section A: ... each employee shall be paid weekly, during working hours, by means of a payroll check, which shall be accompanied by a stub or memorandum indicating the dates of the pay period, the gross amount of the check, FICA, and income tax withheld, company name, address, hours worked, and employee's name ... Commencing on or about December 9, 1976, and continuing to date, and more particularly on or about December 9 and 16, 1976, the Carpenters, in order to administer the contract, has requested, and continues to request, that all Respondents supply to it all canceled checks and payroll records for the Ashford, Alabama, checking account of Respondent Mullins described in section I of this Decision, showing wages paid to employees and hours of work of employees of Respondent Michigan Drywall under Respondent Michigan Drywall's collective- bargaining agreements with the Carpenters for purposes of an audit of said books and records by the administrators of the fringe benefit funds. Commencing on or about December 20, 1976, and continuing to date, Respondents have refused to furnish the Carpenters with the requested information set forth in the foregoing paragraph.3 The parties stipulated that at all material times herein Respondent Mullins "on occasion paid to employees doing work in Michigan under the jurisdiction of the Carpenters' District Council, the Charging Party in one case, and the Painters' District Council, the Charging Party in another case, checks from an Alabama checking account and not paid fringe benefits on the basis of those checks." Respondent Mullins testified that the purpose of Re- spondent M & D was "to use its books to pay Michigan I The foregoing facts are allegations in the complaint which were admitted by Respondents in their answers. 122 MICHIGAN DRYWALL CORPORATION Drywall Corporation employees money for over 40 hours a week worked" and that he "established the management functions of M & D." The money used by Respondent M & D to pay overtime for Michigan Drywall employees was obtained from Michigan Drywall. It further appears that all parties agree that fringe benefits are payable on overtime earnings as well as straight time earnings; 4 nevertheless fringe benefits were not paid on Michigan Drywall employees' overtime earnings in conformity with the collective-bargaining agreements. Based on the foregoing admitted facts and the entire record in this case, it is found that since on or about December 31, 1973, the date of its incorporation, until on or about October 14, 1976, the date of its dissolution, Respondent M & D became and continued to be an agent of Respondent Michigan Drywall and Respondent Mullins and that Respondent Mullins was and is the real employer, the alter ego of Respondents Michigan Drywall and M & D. See Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers (Higdon Contracting Company, Inc.), 216 NLRB 45 (1974), and cases therein cited. The foregoing detailed relevant information which the Unions sought was needed by the Unions for the proper performance of their duties as exclusive bargaining repre- sentatives. The refusal of Respondents to allow the Unions access to such information violated Section 8(aX5) and (1) of the Act. See Murray Bagdasarian d/b/a Michael Rossi Carpet Co., 208 NLRB 748 (1974); N.LR.B. v. Acme Industrial Company, 385 U.S. 432, 435-436 (1967); Temple- Eastex, Incorporated, 228 NLRB 203 (1977). As noted under the terms of the agreements aforesaid Michigan Drywall was required to pay fringe benefits based on overtime worked as well as straight time. Indeed a subterfuge was employed to conceal the nonpayment of the fringe benefits which were required by the agreements. Obviously, this type of chicanery ought not to be condoned. Moreover, the refusal to pay fringe benefits as dictated by the bargaining agreements on employees' overtime earnings resulted in a mid-term modification of the agreements in violation of Section 8(d) of the Act and warrants a finding that Respondents engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Papercraft Corporation, 212 NLRB 240, 241 (1974), see particularly fn. 3; Tony De Clue, an Individual d/b/a Liberty Cleaners, etc., 227 NLRB 1296 (1977). CONCLUSIONS OF LAW i. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. The units set forth in section III, above, constitute appropriate units for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Unions have been at all times material herein the exclusive representatives of the employees in their 4 The Painters contract requires the employer's contribution to the Painters' Union Deposit Fund for each hour worked. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National labor Relations Board. the findings. respective appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to furnish the Unions with information concerning the payment of fringe benefits on behalf of the Michigan Drywall employees in the appropriate units set forth above, Respondents have refused to bargain collec- tively with the Unions in violation of Section 8(a)(5) of the Act, and thereby engaged in and are engaging in unfair labor practices proscribed by Section 8(aXl) of the Act. 6. Respondents' refusal to pay fringe benefits based on overtime worked by Michigan Drywall employees resulted in a midterm modification of the agreements with the Unions in violation of Section 8(d) of the Act and constitutes a violation of Section 8(a)(l) and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(aXI) and (5) of the Act, it is recommended that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents violated Section 8(a)(5) of the Act by refusing to furnish to the Unions information concerning fringe benefits, it is recommended that Respondents be ordered to furnish to the Unions, respectively, or their agents, in respect to the employees covered by their contracts with the Michigan Drywall Corporation, all payroll records, ledger cards, and all canceled checks issued said employees employed by Michigan Drywall Corporation, irrespective of whether said checks were issued by Respondents Michigan Drywall Corporation, M & D Drywall, Inc., or James F. Mullins or came from any other checking account under the control of Respondents. Since Respondents also unlawfully refused to pay Michi- gan Drywall employees fringe benefits based on overtime earnings in conformity with the contracts with the Unions, it is recommended that Respondents be ordered to make the fringe benefit contributions earned on overtime in conformity with the contracts, together with interest computed in conformity with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact. conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondents, Michigan Drywall Corporation, M & D Drywall, Inc., and James F. Mullins, Southfield, Michigan, their officers, agents, successors, and assigns, shall: i. Cease and desist from: conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted bN the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively with the Unions herein as the exclusive bargaining representatives of its employees in the appropriate units set forth below by refusing to furnish the Unions or their agents information concerning the payment of fringe benefits to its employees in the appropriate unit in conformity with the agreements between the Unions and Michigan Drywall Corporation. The appropriate units are: All journeymen and apprentice tapers employed by Michigan Drywall Corporation including foremen supervising employees directly on the job, but exclud- ing other supervisors and guards as defined in the Act. All journeymen and apprentice carpenters and joiners employed by Michigan Drywall Corporation including foremen supervising employees directly on the job, but excluding other supervisors and guards as defined in the Act. (b) Refusing to bargain collectively with the Unions as the exclusive representative of the employees in the appropriate unit set out above by refusing to make fringe benefit contributions earned on overtime for the employees in said units in conformity with the contracts between the Union and Michigan Drywall Corporation. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Furnish to the Unions, respectively, with respect to employees covered by their contracts with Michigan 6 In the event that the Board's 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 l.abor Relations Board" shall read "Posted Pursuant Drywall Corporation, all payroll records, ledger cards, and all canceled checks issued the employees employed by Michigan Drywall Corporation, irrespective of whether said checks were issued by Michigan Drywall Corporation, M & D Drywall, Inc., or James F. Mullins or came from any other source under the control of Respondents. (b) Make the fringe benefit contributions earned on overtime in conformity with the contracts between the Union and the Michigan Drywall Corporation, together with interest computed in conformity with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of fringe benefits due under the terms of this Order. (d) Post at the Southfield, Michigan, establishment of the Michigan Drywall Corporation, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondents' representative, shall be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 124