Walldesign, Inc.

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 359 NLRB No. 52 Walldesign, Inc. and International Union of Painters and Allied Trades District Council 15, Local 159, affiliated with International Union of Paint- ers and Allied Trades of the United States and Canada (IUPAT), AFL–CIO. Cases 28–CA– 071847 and 28–CA–078200 January 10, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK The Acting General Counsel seeks summary judgment in this case on the ground that the Respondent’s answer admits all of the allegations of the consolidated com- plaint. Upon charges and an amended charge filed by International Union of Painters and Allied Trades Dis- trict Council 15, Local 159, affiliated with International Union of Painters and Allied Trades of the United States and Canada (IUPAT), AFL–CIO (the Union), the Acting General Counsel issued the consolidated complaint on May 31, 2012, against Walldesign, Inc. (the Respond- ent), alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act. The Respondent filed an an- swer on November 1, 2012, admitting all of the allega- tions of the consolidated complaint.1 On November 7, 2012, the Acting General Counsel filed with the Board a Motion for Summary Judgment. Thereafter, on November 9, 2012, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be grant- ed. The Union filed a joinder supporting the Acting General Counsel’s motion and requesting additional remedies. The Respondent filed no response. The alle- gations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment As stated above, the Respondent’s answer admits all of the allegations in the consolidated complaint. The Re- spondent has not raised any defenses and has not re- sponded to the notice to show cause. Accordingly, we find that the allegations of the complaint are true and we grant the Acting General Counsel’s Motion for Summary Judgment.2 On the entire record, the National Labor Relations Board makes the following 1 The Respondent’s answer stated that the Respondent was with- drawing an earlier answer, filed June 14, 2012. 2 Black Bear Mining, 325 NLRB 960 (1998). FINDINGS OF FACT I. JURISDICTION At all material times the Respondent has been a corpo- ration with an office and place of business in Las Vegas, Nevada, and has been engaged as a drywall contractor in the construction industry doing residential construction. In conducting its operations during the 12-month peri- od ending January 4, 2012, the Respondent performed services valued in excess of $50,000 in States other than the State of Nevada. The Respondent admits, and we find that the Respond- ent 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 the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Michael Bello — Chief Executive Officer Steve Huntington — President David Grogg — Vice President of Operations At all material times the Respondent’s attorney has been an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent constitute a unit (the 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 Light Commercial Journeymen, Residential/Multi Family Construction Journeymen, Apprentices, and Light Commercial and Residential Helpers/Pre-Apprentices employed by Re- spondent and performing work in Clark County, Neva- da, as described by the Memorandum of Understanding between Respondent and the Union dated December 10, 2009 (the Agreement), EXCLUDING office cleri- cal employees, professional employees, guards and su- pervisors as defined by the Act. About December 10, 2009, the Respondent, an em- ployer engaged in the construction industry, entered into the Agreement whereby it agreed to be bound by the Painters & Decorators Master Agreement (the Master Agreement) between the Union and the Painting and Decorating Contractors of America, Southern Nevada WALLDESIGN, INC. 525 Chapter, effective from December 10, 2009, through June 30, 2012. About December 10, 2009, the Respondent entered in- to the Master Agreement between the Union and the Painting and Decorating Contractors of America, South- ern Nevada Chapter, effective from December 10, 2009, through June 30, 2011. About July 1, 2011, the Master Agreement was auto- matically extended between the Respondent and the Un- ion by the terms of the Master Agreement, and was effec- tive from July 1, 2011, through June 30, 2012. By entering into the Agreement and the Master Agreement, described above, the Respondent recognized the Union as the exclusive collective-bargaining repre- sentative of the unit without regard to whether the Un- ion’s majority had been established under Section 9(a) of the Act. From about December 10, 2009, to at least June 30, 2012, based on Section 9(a) of the Act, the Union has been the limited exclusive collective-bargaining repre- sentative of the unit.3 Since about July 4, 2011, the Respondent has refused to continue in effect all the terms and conditions of the Agreement and the Master Agreement by failing to fol- low the wage, benefit, hiring hall, and other terms of the Agreement and the Master Agreement with respect to projects covered by the Agreement and the Master Agreement, including the Pacific Pines project and Col- lege Villas project. The terms and conditions of employment described above are mandatory subjects for the purposes of collec- tive bargaining. The Respondent engaged in the conduct described above without the Union’s consent. Since about November 8, 2011, the Union has request- ed in writing that the Respondent furnish the Union with the following information: From December 2009 to the current date, no later than the close of business day of Friday, November 23, 2011: 1. A complete list of all projects in area jurisdiction. 3 The complaint alleges that the Respondent is a construction indus- try employer and that it granted recognition to the Union without regard to whether the Union had established majority status. Accordingly, we find that the relationship was entered into pursuant to Sec. 8(f) of the Act and that the Union is therefore the limited 9(a) representative of the unit employees for the period covered by the contract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012, 1012 fn. 2 (1994) (citing Electri-Tech, Inc., 306 NLRB 707 fn. 2 (1992)), enfd. 979 F.2d 851 (6th Cir. 1992), and John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de- nied 488 U.S. 889 (1988). 2. A complete list of employees who are currently em- ployed or have been employed within the last calendar year, the date of hire for each employee, date of termi- nation (if applicable), classification of each employee and the rate of wages being paid to each employee. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about November 8, 2011, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described above. Since about December 22, 2011, the Union has re- quested in writing that the Respondent furnish the Union with the following information: 1. Please provide a list of all jobs which your company has performed in Nevada for the period December 10, 2009 to present. The list should include the name of the job, the location, the period during which the job was performed and the names of the employees who performed bargaining unit work who worked on that job. This should include all jobs which were in pro- gress as of that date of December 10, 2009, as well as all jobs which commenced after that date. The list should be current and up to date. 2. Please provide a list of all employees who worked doing bargaining unit work for the period December 10, 2009 to present. For each employee give the em- ployee’s name, address, rates of pay, classifications and dates of hire or termination including any reason why they were terminated. 3. Please provide a copy of all company benefit plans applicable to the employees in the bargaining unit. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about December 22, 2011, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described above. About December 29, 2011, the Respondent entered in- to a contract with Imperial Building Group, Inc. (Imperi- al) under which Imperial was to perform for the Re- spondent drywall and other construction work located at the Pacific Pines and College Villas projects. The subjects set forth above relate to wages, hours, and other terms and conditions of employment of the unit and 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are mandatory subjects for the purposes of collective bargaining. The Respondent engaged in the conduct described above without prior notice to the Union and without af- fording the Union an opportunity to bargain with the Respondent with respect to this conduct and the effects of this conduct and without first bargaining with the Un- ion to a good-faith impasse. Since about January 12, 2012, the Union has requested in writing that the Respondent furnish it with the infor- mation in the letter attached to the consolidated com- plaint as Exhibit A.4 The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about January 12, 2012, the Respondent has failed and refused to furnish the Union with the infor- mation requested by it as described above. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees within the meaning of Section 8(d) of the Act in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and de- sist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to continue in effect all the terms and conditions of the Agreement and the Master Agreement by failing to follow the wage, benefit, hiring hall, and other terms of those Agreements with respect to projects covered by them, including the Pacific Pines project and College Villas project, we shall order the Respondent to honor and comply with all the terms and conditions of the Agreement and the Master Agreement, and any automatic renewal or extension of them, with respect to projects covered by them, including the Pacific Pines project and College Villas project. We shall also order the Respondent to make the unit employees whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s unlawful con- 4 The Union’s January 12, 2012 letter is incorporated into this Deci- sion and Order as “Appendix B.” duct. Such amounts shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). In the event that the Agreement and the Master Agreement pro- vide for contributions to benefit funds with respect to projects covered by those Agreements, including the Pa- cific Pines project and College Villas project, we shall order the Respondent to make all contractually-required contributions to these funds that they have failed to make since July 4, 2011, including any additional amounts due the funds on behalf of unit employees in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).5 Additionally, the Respondent shall reimburse the unit employees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be computed in the manner set forth in Ogle Protection Service, supra, with interest as pre- scribed in New Horizons for the Retarded, supra, and Kentucky River Medical Center, supra. Further, having found that the Respondent violated Section 8(a)(5) and (1) by entering into a contract with Imperial Building Group, Inc., for the performance of drywall and other construction work located at the Pacif- ic Pines and College Villas projects, without prior notice to the Union and without affording the Union an oppor- tunity to bargain with respect to the Respondent’s con- duct or the effects of this conduct, we shall order the Re- spondent to rescind this unilateral change and restore the status quo until such time as the Respondent and the Un- ion have bargained in good faith to an agreement or im- passe on the terms and conditions of employment of the unit employees. In addition, we shall order the Respond- ent to make the unit employees whole for any loss of earnings and other benefits they may have suffered as a result of the unlawful change, in the manner set forth in Ogle Protection Service, supra, with interest as pre- scribed in New Horizons for the Retarded, supra, com- pounded daily as prescribed in Kentucky River Medical Center, supra. Additionally, in accordance with our recent decision in Latino Express, Inc., 359 NLRB 518 (2012), we shall 5 To the extent that an employee has made personal contributions to a benefit or other fund that have been accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund. WALLDESIGN, INC. 527 order the Respondent to compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards and to file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters for each unit employee. Finally, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with necessary and relevant information it requested on November 8 and December 22, 2011, and January 12, 2012, we shall order the Respondent to pro- vide the Union with the requested information.6 ORDER The National Labor Relations Board orders that the Respondent, Walldesign, Inc., Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with International Union of Painters and Al- lied Trades District Council 15, Local 159, affiliated with International Union of Painters and Allied Trades of the United States and Canada (IUPAT), AFL–CIO (the Un- ion), as the exclusive collective-bargaining representative of the employees in the following unit during the term of the Agreement and the Master Agreement effective July 1, 2011, through June 30, 2012, and any automatic ex- tension of the agreements. The unit is: All full-time and regular part-time Light Commercial Journeymen, Residential/Multi Family Construction Journeymen, Apprentices, and Light Commercial and Residential Helpers/Pre-Apprentices employed by the Respondent and performing work in Clark County, Nevada, as described by the Memorandum of Under- standing between the Respondent and the Union dated December 10, 2009 (the Agreement), EXCLUDING office clerical employees, professional employees, guards and supervisors as defined in the Act. (b) Failing to continue in effect all of the terms and conditions of the Agreement and the Master Agreement effective July 1, 2011, through June 30, 2012, and any 6 The Union has requested that the Board additionally order the Re- spondent to post the appropriate Board notices for the time period be- tween the issuance of the complaint and the date the notices are actually posted; to mail the notices to the last known address of all employees employed by the employer from 6 months of the filing of the charge until the notices are mailed; and to post, at its own expense, the find- ings in the Board’s decision along with notices. We deny the request because the Union has not shown that the Board’s traditional remedies are insufficient to remedy the Respondent’s violations. See Bruce Packing Co., 357 NLRB 1084, 1084 1 fn. 4 (2011); First Legal Support Services, 342 NLRB 350, 350 fn. 6 (2004). automatic renewal or extension of them, including by failing to follow the wage, benefit, hiring hall, and other terms of those Agreements with respect to projects cov- ered by them, including the Pacific Pines project and College Villas project. (c) Unilaterally entering into a contract for the perfor- mance of drywall and other construction work without affording the Union notice and an opportunity to bargain with respect to such conduct and the effects of such con- duct and without first bargaining with the Union to a good-faith impasse. (d) Failing and refusing to furnish the Union with re- quested information that is necessary and relevant to the performance of its duties as exclusive collective- bargaining representative of the employees in the unit. (e) In any like or related manner interfering with, re- straining, 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) Honor and abide by the terms and conditions of the Agreement and the Master Agreement effective July 1, 2011, through June 30, 2012, and any automatic exten- sions of them, including by following the wage, benefit, hiring hall, and other terms of those Agreements with respect to projects covered by them, including the Pacific Pines project and College Villas project. (b) Rescind the unilateral contract with Imperial Build- ing Group, Inc. for the performance of drywall and other construction work located at the Pacific Pines and Col- lege Villas projects, and restore the status quo until such time as the Respondent and the Union have bargained in good faith to an agreement or impasse on the terms and conditions of employment of the unit employees. (c) Make whole the unit employees for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s unlawful conduct, with inter- est, in the manner set forth in the remedy section of this decision. (d) Compensate the unit employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file a report with the Social Security Admin- istration allocating the backpay awards to the appropriate calendar quarters for each unit employee. (e) Furnish the Union with the information it requested by letters dated November 8 and December 22, 2011, and January 12, 2012. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ords and reports, and all other records, including any electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada, copies of the attached notice marked “Appendix A.”7 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentatives, shall be posted and maintained for 60 consec- utive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, copies of the notice to all current employees and former employees employed by the Respondent at any time since about July 4, 2011. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX A 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. 7 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WE WILL NOT fail and refuse to bargain collectively and in good faith with International Union of Painters and Allied Trades District Council 15, Local 159, affili- ated with International Union of Painters and Allied Trades of the United States and Canada (IUPAT), AFL– CIO (the Union), as the exclusive collective-bargaining representative of the employees in the following unit during the term of the Agreement and the Master Agreement effective July 1, 2011, through June 30, 2012, and any automatic extension of the agreements. The unit is: All full-time and regular part-time Light Commercial Journeymen, Residential/Multi Family Construction Journeymen, Apprentices, and Light Commercial and Residential Helpers/Pre-Apprentices employed by us and performing work in Clark County, Nevada, as de- scribed by the Memorandum of Understanding be- tween us and the Union dated December 10, 2009 (the Agreement), EXCLUDING office clerical employees, professional employees, guards and supervisors as de- fined in the Act. WE WILL NOT fail to continue in effect all of the terms and conditions of the Agreement and the Master Agree- ment effective July 1, 2011, through June 30, 2012, and any automatic renewal or extension of them, including by failing to follow the wage, benefit, hiring hall, and other terms of those Agreements with respect to projects covered by them, including the Pacific Pines project and College Villas project. WE WILL NOT unilaterally enter into a contract for the performance of drywall and other construction work without affording the Union notice and an opportunity to bargain with us with respect to such conduct and the ef- fects of such conduct and without first bargaining with the Union to a good-faith impasse. WE WILL NOT fail and refuse to furnish the Union with requested information that is necessary and relevant to the performance of its duties as exclusive collective- bargaining representative of the employees in the unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL honor and abide by the terms and conditions of the Agreement and Master Agreement, effective July 1, 2011, through June 30, 2012, and any automatic re- newal or extension of them, including by following the wage, benefit, hiring hall, and other terms of those Agreements with respect to projects covered by them, including the Pacific Pines project and College Villas project. WALLDESIGN, INC. 529 WE WILL rescind the unilateral contract with Imperial Building Group, Inc. for the performance of drywall and other construction work located at the Pacific Pines and College Villas projects, and restore the status quo until such time as we have bargained in good faith with the Union to an agreement or impasse on the terms and con- ditions of employment of the unit employees. WE WILL make our unit employees whole for any loss of earnings and other benefits they may have suffered as a result of our unlawful conduct, with interest. WE WILL compensate our unit employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file a report with the So- cial Security Administration allocating the backpay awards to the appropriate calendar quarters for each unit employee. WE WILL furnish the Union with the information it re- quested by letters dated November 8 and December 22, 2011, and January 12, 2012. WALLDESIGN, INC. 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 359 NLRB No. 52 APPENDIX B WALLDESIGN, INC. 531 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 532 WALLDESIGN, INC. 533 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534 WALLDESIGN, INC. 535 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536 WALLDESIGN, INC. 537 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 538 WALLDESIGN, INC. 539 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 540 WALLDESIGN, INC. 541