Ritter's Painting Co.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles Ritter d/b/a Ritter's Painting Co. and Painters District Council No. 2, affiliated with International Brotherhood of Painters and Allied Trades and Joseph Shatro, Managing Trustee of Painters District Council No. 2 Pen- sion, Welfare and Vacation Funds. Cases 14- CA-17555-1 and 14-CA-17555-2 14 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon separate charges filed by the Union and the managing trustee of the Union's Pension, Wel- fare and Vacation Funds on 7 August 1984, the General Counsel of the National Labor Relations Board issued an order consolidating cases and a complaint on 17 September 1984 against the Com- pany, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act. Although properly served copies of the charges and complaint, the Company has failed to file an answer. On 15 October 1984 the General Counsel filed a Motion for Summary Judgment. On 19 October 1984 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 Company filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 10 days of service, "all the allegations in the consolidated complaint shall be deemed to be true and may be so found by the Board." Further, the undisputed allegations in the Motion for Summary Judgment disclose that the General Counsel, by letters dated 2 October 1984, notified the Company that unless an answer was received by noon on 9 October 1984,, 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 Judg- ment. i I In granting the General Counsel's Motion for Summary Judgment, Chairman Dotson specifically relies on the total failure of the Respondent to contest either the factual allegations or the legal conclusions of the General Counsel's complaint Thus, the Chairman regards this proceeding On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, an individual proprietorship, is a painting contractor providing painting and relat- ed services to residential and commercial custom- ers, and maintains his office and place of business at 327 Houston, St. Charles, Missouri. During the 12-month period ending 31 August 1984, which period is representative of his operations during all times material hereto, the Respondent, in the course and conduct of his business operations, pur- chased and caused to be transported and delivered at his St. Charles, Missouri office goods, materials, and supplies valued in excess of $50,000 directly from points located outside the State of Missouri. During the same period, the Respondent purchased and caused to be transported and delivered at his St. Charles, Missouri office goods, materials, and supplies valued in excess of $50,000 which were re- ceived from other enterprises located in the State of Missouri, which enterprises had received direct- ly from points located outside the State of Missou- ri. Additionally, during the same period, the Re- spondent performed services valued in excess of $50,000 for other enterprises located in States other than the State of Missouri, and provided services valued in excess of $50,000 for other enterprises within the State of Missouri, each of which enter- prises meets other than a solely indirect standard for the assertion of Board jurisdiction. Finally, during the same period, the Respondent derived gross revenues in excess of $500,000, and provided services valued in excess of $5000 directly to points located outside the State of Missouri, and/or pur- chased and received at his St. Charles, Missouri office products, goods, and materials valued in excess of $5000 directly from points outside the State of Missouri. We find the Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: as being essentially a default judgment which is without precedential value 274 NLRB No. 12 RITTER'S PAINTING CO 69 All journeyman painters, tapers and drywall finishers, paper and wallcovering hangers and working foremen employed by the Employer, EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. Since about 3 April 1984, and at all times materi- al herein, the Union has been the lawfully designat- ed exclusive collective-bargaining representative of the employees in the unit described above and, since about 3 April 1984, the Union has been rec- ognized as such representative by the Respondent. Such recognition has been embodied in a collec- tive-bargaining agreement which is effective by its terms until 30 November 1985. At all times materi- al herein, the Union, by virtue of Section 9(a) of the Act, has been and is the exclusive representa- tive of the employees in the unit described above for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. By letter dated 19 June 1984, the Union, through its agents, requested the Respondent to furnish the Union with the following information: the Re- spondent's cash disbursements (regular and pay- roll); payroll tax returns (State of Missouri and other state unemployment returns and Quarterly Federal Tax Returns, Form 941); payroll cards, timecards, etc.; bank statements, including canceled checks; dues and fringe benefit contribution reports submitted to labor organizations other than the Union and its related benefit plans; and payments made for performance of painting or related work to subcontractors, independent contractors, or any other business or person other than an employee of the Respondent's business. By letter dated 23 July 1984, the Union renewed its request for the infor- mation. The information requested by the Union is necessary for and relevant to the Union's perform- ance of its function as the exclusive collective-bar- gaining representative of the employees in the unit described above. Since about 19 June 1984, the Re- spondent has failed and refused to provide the Union with the requested information. Accordingly, we find that the Respondent has failed and refused and is failing and refusing to bar- gain collectively with the Union and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. By failing and refusing since about 19 June 1984 to bargain collectively with the Union by fail- ing and refusing to furnish the Union with informa- tion it requested in its letters dated 19 June 1984 and 23 July 1984, the Respondent 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. 2. By the aforesaid conduct, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing his em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1). REMEDY Having found that the 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 him to cease and desist therefrom. We shall further order the Respondent, on request, to furnish the Union the information it requested in its letters dated 19 June 1984 and 23 July 1984. ORDER The National Labor Relations Board orders that the Respondent, Charles Ritter d/b/a Ritter's Painting Company, St. Charles, Missouri, his agents, successors , and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively, with Painters District Council No. 2, affiliated with International Brotherhood of Painters and Allied Trades, as the exclusive collective-bargaining rep- resentative of the employees in the appropriate unit set forth below, by failing and refusing to furnish the Union with the information it requested in its letters dated 19 June 1984 and 23 July 1984., The appropriate unit is: All journeyman painters, tapers and drywall finishers, paper and wallcovering hangers and working foremen employed by the Employer, EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, furnish the Union with the fol- lowing information it requested in its letters dated 19 June 1984 and 23 July 1984: cash disbursements (regular and payroll); payroll tax returns (State of Missouri and other state unemployment returns and Quarterly Federal Income Tax Returns, Form 941); payroll cards, timecards, etc.; bank statements, in- 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cluding canceled checks; dues and fringe benefit contributions reports submitted to labor organiza- tions other than the Union and its related benefit plans; and payments made for performance of painting or related work to subcontractors, inde- pendent contractors, or any other business or person other than an employee of the Respondent's business. (b) Post at his facility in St. Charles, Missouri, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 14, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Allied Trades, as the exclusive collective-bargain- ing representative of the employees in the appro- priate unit set forth below, by failing and refusing to furnish the Union with the information it re- quested in its letters dated 19 June 1984 and 23 July 1984. The appropriate unit is: All journeyman painters, tapers and drywall finishers, paper and wallcovering hangers and working foremen employed by the Employer, EXCLUDING office clerical and professional employees, guards, and supervisors as defined in the Act. I WILL NOT in any like or related manner inter- fere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. I WILL, on request, furnish the Union with the following information it requested in its letters dated 19 June 1984 and 23 July 1984: cash dis- bursements (regular and payroll); payroll tax re- turns (State of Missouri and other state unemploy- ment returns and Quarterly Federal Income Tax Returns, Form 941); payroll cards, timecards etc.; bank statements, including canceled checks; dues and fringe benefit contributions reports submitted to labor organizations other than the Union and its related benefit plans, and payments made for the performance of painting or related work to subcon- tractors, independent contractors, or any other business or person other than an employee of the Respondent's business. CHARLES RITTER D/B/A RITTER'S PAINTING CO. 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. I WILL NOT fail and refuse to bargain collective- ly with Painters District Council No. 2, affiliated with International Brotherhood of Painters and