Matson Paint Products

MATSON PAINT PRODUCTS Matson Paint Products, Inc. and Driver Salesmen and Warehousemen, Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 19-CA-8868 May 3, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Upon a charge filed on September 3, 1976, by Driver Salesmen and Warehousemen, Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Matson Paint Products, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on October 19, 1976, 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 proceeding. With respect to the alleged unfair labor practices, the complaint alleges in substance that (I) since on or about July 7, 1976, Respondent has failed and refused to meet and bargain with the Union to process a grievance filed pursuant to the contract executed with the Union on behalf of Respondent and other members of the Paint, Varnish, and Lacquer Association; and (2) since on or about July 7, 1976, Respondent has failed and refused to supply the Union with a list of all employees for the purposes of collective bargaining and contract administration. Respondent did not file a timely answer to the complaint. On December 6, 1976, the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subsequently, on December 17, 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. Respondent did not 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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 229 NLRB No. 67 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 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 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 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. The complaint and notice of hearing issued on October 19, 1976, and duly served on Respondent on October 20, 1976, specifically states that, unless an answer to the complaint is filed by Respondent within 10 days of service thereof, "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 record herein, and the uncontroverted allegations of the Motion for Sum- mary Judgment, counsel for the General Counsel, by letter dated November 4, 1976, informed Respon- dent's agent of his default and failure to submit an answer and asked Respondent to file an answer as soon as possible. On November 11, 1976, counsel for the General Counsel sent Respondent a second letter warning Respondent that further action would be taken unless Respondent's answer was received by the close of business November 17, 1976. On November 17, 1976, Respondent telephonically requested additional time to file an answer on November 24, 1976, and was advised that action would be taken unless an answer was received by that date. No answer having been filed by Respon- dent by that date, counsel for the General Counsel, on December 3, 1976, filed the Motion for Summary Judgment herein which was received by and filed by the Board in Washington, D.C., on December 6, 1976. In view of Respondent's failure to answer, and no good cause having been shown for such failure, under the rule set forth above, the allegations of the complaint are deemed to be admitted and are found 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be true. Accordingly, we shall grant the Motion for Summary Judgment. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a State of Washington corporation, is engaged in the business of paint manufacturing and the wholesale and retail sale of paint products with its principal place of business located at Seattle, Washington. In the course and conduct of its business operations at the Seattle, Washington, facility, Respondent annually purchases and causes to be transferred and delivered to its Seattle plant goods and materials valued in excess of $50,000 which are transported to that plant directly from States other than the State of Washington. We find, on the basis of the foregoing, that Respondent 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 Driver Salesmen and Warehousemen, Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The 8(a)(l) and (5) Violations 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All lift truck operators, maintenance men, ship- ping clerks, receiving clerks, dry mix operators, packers, checkers, machine operators and ware- housemen, excluding all other employees, supervi- sors, and guards as defined in the Act. 2. The representative status of the Union Since November 25, 1974, the Union has been a party to a contract with the Paint, Varnish, and Lacquer Association, of which Respondent is a member, covering the aforestated unit, and provid- ing, among other things, a grievance procedure with binding arbitration. That contract has a termination date of October 1, 1976. 3. The requests and refusal to bargain Commencing on or about July 7, 1976, the Union has requested that Respondent meet and discuss a grievance filed pursuant to the contract. Since that date, and at all times thereafter, Respondent has failed to meet with the Union to process the grievance or otherwise to bargain with the Union. On or about July 7, 1976, the Union requested Respon- dent to supply it with a list of all employees for the purposes of collective bargaining and contract administration; since that date, Respondent failed and refused, and continues to fail and refuse, to supply the Union with the requested information. Accordingly, we find that, by the aforesaid con- duct, since July 7, 1976, and at all times thereafter, Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) 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 opera- tions described in section I, above, have a close, intimate, 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 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 effectuate the policies of the Act. We shall order that Respondent cease and desist from refusing to bargain collectively concerning grievances filed pursuant to the contract and refusing to supply the Union with a list of all employees for the purposes of collective bargaining and contract administration. Affirmatively, we shall order that Respondent, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit with respect to grievances filed pursuant to the contract and supply a list of all employees to the Union for the purposes of collective bargaining and contract administration. The Board, upon the basis of the foregoing facts and the entire record, makes the following: 426 MATSON PAINT PRODUCTS CONCLUSIONS OF LAW 1. Matson Paint Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Driver Salesmen and Warehousemen, Local Union No. 117, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All lift truck operators, maintenance men, shipping clerks, receiving clerks, dry mix operators, packers, checkers, machine operators and ware- housemen, excluding all other employees, supervi- sors, and guards as defined in the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. 4. Since November 25, 1974, the above-named labor organization has been the exclusive representa- tive of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing on or about July 7, 1976, and at all times thereafter, to meet with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit to discuss and process a grievance filed pursuant to the contract, and to supply the above-named labor organization with a list of all employees for the purposes of collective bargaining and contract administration, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Relations Board hereby orders that Respondent, Matson Paint Products, Inc., Seattle, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning grievances filed pursuant to the contract and refusing to supply a list of all employees for the purposes of collective bargaining and contract administration in the following appropriate unit: All lift truck operators, maintenance men, ship- ping clerks, receiving clerks, dry mix operators, packers, checkers, machine operators and ware- housemen, excluding all other employees, supervi- sors, and guards as defined in the Act. (b) In any like or related manner interfering with, restraining, 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) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to grievances filed pursuant to the contract and supply to the Union a list of all employees for the purposes of collective bargaining and contract administration. (b) Post at its Seattle, Washington, facility copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 19, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, including grievances filed pursuant to the contract or refuse to supply a list of all employees for the purposes of collective bargaining and contract administra- tion, with Driver Salesmen and Warehousemen, Local Union No. 117, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen and Helpers of America. The bargain- ing unit is: All lift truck operators, maintenance men, shipping clerks, receiving clerks, dry mix operators, packers, checkers, machine opera- tors and warehousemen, excluding all other employees, supervisors, and guards as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the above- described unit with respect to grievances filed pursuant to the contract, and supply a list of all employees for the purposes of collective bargain- ing and contract administration. MATSON PAINT PRODUCTS, INC. 428