Bradley Interiors

BRADLEY INTERIORS Bradley Interiors, Inc. and Trustees of the Central Valley Painting and Decorating Industry, Health and Welfare Trust Fund. Case 32-CA- 12842 April 26, 1993 BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH DECISION AND ORDER Upon a charge filed by the Charging Party November 20, 1992, the General Counsel of the National Labor Relations Board issued a complaint against Bradley Interiors, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. On March 22, 1993, the General Counsel filed a Motion for Summary Judgment. On March 23, 1993, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board's Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the Complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed allegations in the Motion for Summary Judgment disclose that the counsel for General Counsel, by letter dated January 15, 1993, notified the Respondent that unless an answer was received by January 27, 1993, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, Bradley Interiors, Inc., a California corporation with an office and place of business in Porterville, California, has been engaged as a painting and decorating contractor on a nonretail basis. During the 12-month period ending December 29, 1992, in the course and conduct of its business operations, the Respondent provided services valued in excess of $50,000 to customers or business enterprises who themselves meet one of the Board's jurisdictional standards, other than the indirect inflow or indirect outflow standards. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, since at least 1988, the Respondent has been a signatory to an individual collective-bargaining agreement (the Agreement), pursuant to the provisions of Section 8(f) of the Act, which incorporates by reference and binds the Respondent to the terms of the labor agreement between the Union and Fresno County Chapter of the Painting and Decorating Contractors of America (the Master Agreement), including all renewals, modifications, and extensions thereto. On or about July 1, 1991, the Master Agreement was modified and extended to the period July 1, 1991, through June 30, 1994. At all times material, the following employees of the Respondent (the unit) have constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by Respondent in Fresno, Madera, Kings and Tulare counties, California, performing work within the jurisdiction of the Union, including journeymen and apprentice painters, tapers, and texturers, excluding office clerical employees, guards, and supervisors as defined by the Act. At all times material, the Union, by virtue of Sections 8(f) and 9(a) of the Act, has been, and is, the exclusive collective-bargaining representative of the employees in the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Pursuant to the provisions of the Master Agreement as amended and extended, and the Agreement, the Respondent is obligated to make certain monthly health and welfare and apprentice training trust fund contributions (the Trust Fund Contributions) to the Central Valley Painting and Decorating Industry Health and Welfare Trust Fund (the Fund) for the term of the Master Agreement. Since May 1992, and continuing to date, the Respondent has failed and/or refused, and continues to fail and/or refuse, to make Trust Fund Contributions 310 NLRB No. 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for any of its unit employees. These funds are mandatory subjects of collective bargaining. The Respondent engaged in the acts and conduct described above without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of the Respondent's unit employees with respect to such acts and conduct and the effects of such acts and conduct, and without the agreement of the Union. CONCLUSION OF LAW By the acts and conduct described above, and by each of these acts, the Respondent has failed and refused, and is failing and refusing, to bargain in good faith with the representative of its employees, and has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to make contractually required Trust Fund Contributions, we shall order the Respondent to make whole its unit employees by making all payments that have not been made and that would have been made but for the Respondent's unlawful failure to make them, including any additional amounts applicable to such delinquent payments as determined in accordance with the criteria set forth in Merryweather Optical Co., 240 NLRB 1213 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensuing from its failure to make such required payments, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Bradley Interiors, Inc., Porterville, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to make Trust Fund Contributions for any of its unit employees without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of the Respondent's unit employees with respect to such acts and conduct and the effects of such acts and conduct, or without the agreement of the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make the unit employees whole for any loss of benefits or other expenses suffered as a result of the Respondent's failure to make the contractually required Trust Fund Contributions. (b) Preserve and, on request, make avalable 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 due under the terms of this Order. (c) Post at its facility in Porterville, California, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 1 If 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. BRADLEY INTERIORS WE WILL NOT fail or refuse to make Trust Fund Contributions for any of our unit employees without prior notice to the Union and without affording the Union an opportunity to negotiate and bargain as the exclusive representative of our unit employees with respect to such acts and conduct and the effects of such acts and conduct, or without the agreement of the Union. The unit includes the following employees: All full-time and regular part-time employees employed by us in Fresno, Madera, Kings and Tulare counties, California, performing work within the jurisdiction of the Union, including journeymen and apprentice painters, tapers, and texturers, excluding office clerical employees, guards, and supervisors as defined by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make our unit employees whole for any loss of benefits or other expenses, with interest, suffered as a result of our failure to make contractually required Trust Fund Contributions. BRADLEY INTERIORS, INC.