P.P.B., Inc.

P.P.B., INC. AND K.J. EQUIPMENT P.P.B., Inc. and K.J. Equipment and Laborers' Inter- national Union of North America, Local No. 89, AFL-CIO. Case 21-CA-14235 August 3, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on December 10, 1975, by Laborers' International Union of North America, Local No. 89, AFL-CIO, herein called the Union, and duly served on P.P.B., Inc. and K.J. Equipment, herein called Respondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and no- tice of hearing on March 25, 1976, against Respon- dents, alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5), (3), and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on or about June 10, 1975, Respondents changed the terms and conditions of employment of employees in the appropriate unit covered by the existing collective-bargaining agree- ment, without notification to or bargaining with the Union, by unilaterally refusing to pay premium pay for overtime, thereby changing the wage rates of em- ployees. The complaint further alleges that the Re- spondents discharged two employees, Angel Lopez and David H. Huey, because they engaged in union or other protected concerted activities for the pur- poses of collective bargaining or other mutual aid or protection. Respondents failed to file a timely answer to the complaint. On May 10, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 21, 1976, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondents thereafter failed to file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: 815 Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions 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 ad- mitted 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 issued on March 25, 1976, and served on Respondents by regis- tered mail specifically states that unless an answer to the complaint is filed within 10 days of service there- of "all of the allegations in said complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the uncontrovert- ed allegations of the Motion for Summary Judgment, on April 23, 1976, counsel for the General Counsel notified Respondents' attorney that an answer to the complaint was overdue, and advised that if an an- swer was not forthcoming by April 30, 1976, a Mo- tion for Summary Judgment would be filed. No an- swer was filed by that date and, accordingly, counsel for the General Counsel sought summary judgment herein. On May 21, 1976, the Board ordered the proceed- ing herein transferred to the Board and gave notice that the parties show cause on or before June 4, 1976, why the General Counsel's Motion for Summary Judgment should not be granted. As noted above, Respondents have failed to file a response to the No- tice To Show Cause. Accordingly, under Section 102.20, set forth above, no good cause having been shown for the fail- ure to file a timely answer, the allegations of the complaint are deemed admitted and are found to be true and we shall grant the Motion for Summary Judgment. 1. THE BUSINESS OF RESPONDENTS Respondent P.P.B. is, and has been at all times material herein, a corporation engaged in the busi- ness of grading and paving, with a facility located at 225 NLRB No. 106 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4102 Genesee Avenue, San Diego, California. Until in or about October 1975, Respondent K.J. Equip- ment was a joint venture engaged in the business of leasing grading and related equipment , with a facility located at 4102 Genesee Avenue, San Diego, Califor- nia, and thereafter became, and now is, a sole propri- etorship, owned by Matthew Zetz, engaged in the same business at the same location. Until in or about October 1975, Matthew Zetz, Ken Brigham, Joe Miller, and a person known only to Respondent P.P.B. were the sole shareholders of Respondent P.P.B., while Respondent K.J. was joint- ly owned by Brigham and Miller. In or about Octo- ber 1975, Zetz became the sole shareholder of Re- spondent P.P.B. and the sole proprietor of Respondent K.J. At all times material herein , Zetz has exercised control over the labor relations policies and manage- ment of Respondents , and Joe Klosterman has been, and is now, a foreman of Respondents , acting on their behalf, and is now a supervisor within the meaning of Section 2(11) of the Act and an agent of Respondents within the meaning of Section 2(2) and (13) of the Act. At all times material herein, employ- ees of Respondent P.P.B. have performed services for Respondent K.J., and employees of Respondent K.J. have performed services for Respondent P.P.B. Ac- cordinlgly, we find that at all times material herein Respondents have been , and are now, affiliated busi- ness enterprises having common ownership and su- pervision, have been operating under a commonly formulated and administered labor relations policy affecting their employees, constitute a single integrat- ed business enterprise , and are, and at all times mate- rial herein have been, a single employer within the meaning of Section 2(2) of the Act. Respondent P.P.B., Inc . in the normal course and conduct of its business operations, annually performs services valued in excess of $50,000 for customers located within the State of California, each of which customers, in turn, annually derives gross revenue in excess of $50,000 from retail sales inside the State of California and purchases and receives goods valued in excess of $10,000 directly from suppliers located outside the State of California. We find, on the basis of the foregoing, that Re- spondents are, and have 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America, Local No. 89, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The 8(a)(5) Violations On or about May 7, 1975, Respondent P.P.B. en- tered into a collective-bargaining agreement with the Union covering an appropriate unit of employees, comprising all employees of Respondents over whom the Union has work jurisdiction , excluding execu- tives, civil engineers and their helpers, superinten- dents, assistant superintendents, master mechanics, timekeepers, messenger boys, and office workers. Since May 7, 1975, the Union has been the represen- tative for the purpose of collective bargaining of a majority of the employees in the above-described unit and, by virtue of Section 9(a) of the Act, has been, and now is, the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On or about June 10, 1975, Respon- dents, without prior notification to or bargaining with the Union, changed terms and conditions of em- ployment of the employees in the unit described above by unilaterally changing the wage rates of em- ployees by refusing to pay premium pay for overtime as required by the existing collective -bargaining agreement. We find that, by the acts and conduct set forth above, Respondents have refused to bargain collec- tively in good faith, and are refusing to bargain col- lectively in good faith, with the Union as the exclu- sive representative of the employees in the above-described appropriate unit, and thereby en- gaged in , and are engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. B. The 8(a)(3) Violations On or about August 26, 1975, Respondents dis- charged employees Angel M. Lopez and David H. Huey and have failed and refused, and continue to fail and refuse , to reinstate such employees because they engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection. We find that, by the acts and conduct set forth above, Respondents have discriminated, and contin- ue to discriminate, against employees in regard to hire or tenure of employment to discourage union or other protected concerted activities, and thereby en- P.P.B., INC. AND K.J. EQUIPMENT 817 gaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (a)(3) of the Act. C. The 8(a)(1) Violations We find that by the acts and conduct set forth in sections A and B, above, Respondents have inter- fered with, restrained, and coerced, and are interfer- ing with, restraining, and coercing, employees in the exercise of rights guaranteed them under Section 7 of the Act, and thereby engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Effectuation of the Act's poli- cies requires that Respondents comply with the ex- isting collective-bargaining agreement between Re- spondents and the Union by resuming payment of premium pay for overtime as required therein, and that the employees whose statutory rights were in- vaded by reason of the unilateral refusal to pay pre- mium pay for overtime and who suffered losses in consequence thereof be made whole for such losses, including interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. We have found that Respon- dents discriminatorily discharged and failed and re- fused to reinstate employees Lopez and Huey. We shall order that Lopez and Huey be reinstated or of- fered reinstatement to their former positions or, if such positions no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges. We shall also order that Respondents make Lopez and Huey whole for any loss of earnings suffered as a result of the discrimina- tion against them. Backpay shall be based on the earnings they normally would have received from the date of their discharges to the date of their reinstate- ment, or offer thereof, less any net interim earnings, and shall be computed on the basis set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 716 (1962). As Respondents' unfair labor practices go to the very heart of the Act, we shall order that they cease and desist from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights in any other manner. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. P.P.B., Inc. and K.J. Equipment constitute a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North Ameri- ca, Local No. 89, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts and conduct described in section III, A, above, Respondents have refused to bargain collectively in good faith, and are refusing to bargain collectively in good faith, with the Union as the ex- clusive representative of the employees in the above- described appropriate unit, and thereby engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the acts and conduct described in section III, B, above, Respondents have discriminated, and continue to discriminate, against employees in regard to hire or tenure of employment, or any term or con- dition of employment, to discourage union or other protected concerted activities, and thereby engaged in, and are engaging in, unfair labor practices within the meaning of the Section 8(a)(3) of the Act. 5. By the acts and conduct described in section III, A and B, above, Respondents have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, employees in the ex- ercise of the rights guaranteed them under Section 7 of the Act, and thereby engaged in, and are engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondents, P.P.B., Inc. and K.J. Equipment, San Diego, Califor- nia, their officers, agents, sucessors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally refusing to comply with the ex- isting collective-bargaining agreement between P.P.B., Inc., and the Laborers' International Union of North America, Local No. 89, AFL-CIO, by re- fusing to pay premium pay for overtime as required therein, or otherwise refusing to bargain collectively with the Union as the exclusive representative of em- ployees in the following appropriate unit: All employees of Respondents over whom the Union has work jurisdiction; excluding execu- tives, civil engineers and their helpers, superin- tendents, assistant superintendents, timekeepers, messenger boys, and office workers. (b) Discouraging membership in Laborers' Inter- national Union of North America, Local No. 89, AFL-CIO, or any other labor organization, by dis- criminatorily discharging employees and failing and refusing to reinstate them, or by otherwise discrimi- nating in regard to the hire or tenure of employees or any other term or condition of their employment. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise 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) Comply with the existing collective-bargaining agreement between P.P.B., Inc. and the Union by paying premium pay for overtime as required and make whole employees for any loss of pay suffered by reason of Respondents' unilateral refusal to pay premium pay for overtime in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to reinstate employees Angel M. Lopez and David H. Huey to their former positions or, if those positions no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a re- sult of the discrimination against them 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 copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its San Diego, California, facility cop- ies of the attached notice marked "Appendix." I Cop- ies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondents' representative, shall be posted by Re- spondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondents to in- sure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally refuse to comply with the existing collective-bargaining agree- ment between P.P.B., Inc., and the Laborers' In- ternational Union of North America, Local No. 89, AFL-CIO, by refusing to pay premium pay for overtime as required therein, or otherwise re- fusing to bargain collectively with the Union as the exclusive representative of our employees in the following appropriate unit: All employees of P.P.B., Inc., and K.J. Equip- ment over whom the Union has work jurisdic- tion; excluding executives, civil engineers and their helpers, superintendents, assistant super- intendents, timekeepers, messenger boys, and office workers. WE WILL NOT discourage membership in La- borers' International Union of North America, Local No. 89, AFL-CIO, or any other labor or- ganization, by discriminatorily discharging em- ployees and failing and refusing to reinstate them, or by otherwise discriminating in regard to the hire or tenure of employees or any term or condition of their employment. P.P.B., INC. AND K .J. EQUIPMENT 819 WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Siction 7 of the Act. WE WILL comply with the existing collective- bargaining agreement between P .P.B., Inc., and the Union by paying premium pay for overtime as required therein, and WE WILL make whole employees for any loss of pay suffered by reason of our unilateral refusal to pay premium pay for overtime. WE WILL offer to reinstate employees Angel M. Lopez and David H. Huey to their former positions or, if those positions no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other rights and privi- leges, and WE WILL make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. P.P.B., INC. AND K.J. EQUIPMENT