Dentz Painting, Inc. and Global Contracting Services

DENTZ PAINTING, INC. 393 Dentz Painting, Inc. and Global Contracting Services and Painters & Allied Trades District Council, No. 6. Case 08–CA–083055 September 5, 2014 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND JOHNSON The General Counsel seeks a default judgment in this case on the ground that Dentz Painting, Inc. (Respondent Dentz) and Global Contracting Services (Respondent Global) (collectively, the Respondents) have failed to file an answer to the complaint. Upon a charge filed by Painters & Allied Trades District Council, No. 6 (the Union) on June 14, 2012, the General Counsel issued a complaint on May 27, 2014, against the Respondents, alleging that they had violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act. The Respond- ents failed to file an answer. On June 18, 2014, the General Counsel filed a Motion for Default Judgment with the Board. On June 19, 2014, 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 Respondents filed no re- sponse. The allegations in the motion are therefore un- disputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was received by June 10, 2014, the Board may find, pursuant to a motion for default judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated June 11, 2014, notified the Respondents that unless an answer was received by June 17, 2014, a motion for default judgment would be filed. The Respondents failed to file an an- swer. In the absence of good cause being shown for the fail- ure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the Gen- eral Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Dentz has been an Ohio corporation with an office and place of business located at 5181 West 161st Street, Brook Park, Ohio, and has been engaged in providing commercial and residen- tial painting services. At all material times, Respondent Global has been a Wyoming limited liability company with an office and place of business located at 5081 West 161st Street, Brook Park, Ohio, and has been engaged in providing commercial and residential painting and other contract- ing services. At all material times, Respondent Dentz and Respond- ent Global have had substantially identical management, business purposes, operations, equipment, customers, supervision, and ownership. On about August 3, 2011, Respondent Dentz estab- lished Respondent Global as a disguised continuation of Respondent Dentz for the purpose of evading its respon- sibilities under the Act. Based on the operations and conduct described above, the Respondents are, and have been at all material times, alter egos within the meaning of the Act. Until it ceased operations on about August 3, 2011, Respondent Dentz, in conducting its operations as de- scribed above, annually provided services valued in ex- cess of $50,000 for the Cleveland Clinic, an enterprise located within the State of Ohio that is directly engaged in interstate commerce. Respondent Global, in conducting its operations as de- scribed above, annually provides services valued in ex- cess of $50,000 for the Cleveland Clinic, an enterprise located within the State of Ohio that is directly engaged in interstate commerce. We find that the Respondents are employers 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 positions set forth opposite their respective names and have been supervisors of Respondent Dentz within the meaning of Section 2(11) of the Act and agents of Re- spondent Dentz within the meaning of Section 2(13) of the Act: Eric Dentz President Rebecca Dentz CEO Thomas Allamon Project Manager 361 NLRB No. 40 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At all material times, the following individuals held positions set forth opposite their respective names and have been supervisors of Respondent Global within the meaning of Section 2(11) of the Act and agents of Re- spondent Global within the meaning of Section 2(13) of the Act: Rebecca Dentz President and CEO Thomas Allamon Project Manager The following employees of Respondent Dentz consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act (the unit): All journeymen and apprentices engaged in commer- cial and residential painting work and related work. On about November 7, 2009, Respondent Dentz, an employer engaged in the building and construction in- dustry, entered into a Working Agreement whereby it agreed to be bound by the collective-bargaining agree- ment between the Union and the Northern Ohio Painting and Taping Contractors Association, effective from No- vember 7, 2009 to April 7, 2013, and agreed to be bound to future agreements unless timely notice was given. By entering into the agreement described above, Respondent Dentz recognized the Union as the exclusive collective- bargaining representative of the unit without regard to whether the Union’s majority status had ever been estab- lished under Section 9(a) of the Act. From November 7, 2009 to at least April 1, 2013, based on Section 9(a) of the Act, the Union has been the limited exclusive collec- tive-bargaining representative of the unit. The Respondents have engaged in the following conduct 1. Since about January 1, 2012, the Respondents have failed and refused to continue to employ employees of Respondent Dentz engaged in providing commercial and residential painting services. The Respondents engaged in the conduct described above because the employees of the Respondents joined and assisted the Union and en- gaged in concerted activities, and to discourage employ- ees from engaging in these activities. 2. Since about January 1, 2012, the Respondents have failed and refused to continue in effect the terms of the collective-bargaining agreement described above. 3. Since about January 1, 2012, the Respondents, by Rebecca Dentz, have bypassed the Union and dealt di- rectly with employees with respect to wages and other terms and conditions of employment by discussing and negotiating individual pay rates and benefits. 4. Since about March 8, 2012, the Union has request- ed in writing that the Respondents provide it with infor- mation related to the business operations of the Respond- ents, employee information, and other information. That letter is attached to the complaint as Exhibit A.1 The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s perfor- mance of its duties as the exclusive collective-bargaining representative of the unit. Since about March 8, 2012, the Respondents have failed and refused to furnish the information requested by the Union. CONCLUSIONS OF LAW 1. By the conduct described above in paragraph 1, the Respondents have been discriminating in regard to the hire or tenure or terms or conditions of employment of their employees, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. 2. By the conduct described above in paragraphs 2 through 4, the Respondents have been failing and refus- ing to bargain collectively and in good faith with the lim- ited exclusive collective-bargaining representative of their employees within the meaning of Section 8(d) of the Act, in violation of Section 8(a)(5) and (1) of the Act. 3. The unfair labor practices of the Respondents affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifical- ly, having found that the Respondents violated Section 8(a)(3) and (1) by failing and refusing to continue to em- ploy the unit employees of Respondent Dentz, we shall order the Respondents to offer these employees full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. Further, the Respondents shall make the employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). 1 The Union’s March 8, 2012 letter is incorporated into this Decision and Order as “Appendix B.” DENTZ PAINTING, INC. 395 In addition, the Respondents shall be required to remove from their files and records all references to the unlawful failure to continue to employ employees of Respondent Dentz, and to notify the discriminatees in writing that this has been done and that the unlawful references will not be used against them in any way. Having further found that the Respondents violated Section 8(a)(5) and (1) of the Act by failing and refusing to continue in effect all the terms and conditions of the collective-bargaining agreement, we shall order the Re- spondents to honor and abide by the terms of the 2009– 2013 Working Agreement, and any automatic extension or renewal thereof, and on request, to rescind these uni- lateral changes. We shall also order the Respondents to make the unit employees whole for any loss of earnings and other benefits they may have suffered as a result of these unlawful changes, 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, supra, compounded dai- ly as prescribed in Kentucky River Medical Center, su- pra. In addition, having found that the Respondents violat- ed Section 8(a)(5) and (1) by bypassing the Union and dealing directly with employees with respect to wages and other terms and conditions of employment by dis- cussing and negotiating individual pay rates and benefits, we shall order the Respondents to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employees with respect to wag- es, hours, and other terms and conditions of employment and, if an understanding is reached, to embody the un- derstanding in a signed agreement. Additionally, we shall order the Respondents to com- pensate the unit employees for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards and to file a report with the Social Security Administra- tion allocating the backpay awards to the appropriate calendar quarters for each employee. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 102 (2014). Finally, having found that the Respondents violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with necessary and relevant information re- quested since about March 8, 2012, we shall order the Respondents to provide the Union with the requested information that is necessary for and relevant to its role as the limited collective-bargaining representative of the unit. ORDER The National Labor Relations Board orders that the Respondents, Dentz Painting, Inc. and Global Contract- ing Services, Brook Park, Ohio, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to continue to employ employ- ees of Respondent Dentz engaged in providing commer- cial and residential painting services because they engage in protected concerted activities or because of their sup- port for and activities on behalf of the Union or to dis- courage employees from engaging in these activities. (b) Failing and refusing to bargain collectively and in good faith with Painters & Allied Trades District Coun- cil, No. 6 as the limited exclusive collective-bargaining representative of the employees in the following unit during the term of the Working Agreement, effective from November 7, 2009 to April 7, 2013, and any auto- matic renewal or extension of it: All journeymen and apprentices engaged in commer- cial and residential painting and related work. (c) Failing and refusing to continue in effect all of the terms and conditions of the 2009–2013 Working Agree- ment, and any automatic renewal or extension of it. (d) Bypassing the Union and dealing directly with em- ployees with respect to wages and other terms and condi- tions of employment by discussing and negotiating indi- vidual pay rates and benefits. (e) Failing and refusing to furnish the Union with the requested information that is relevant and necessary to its role as the limited exclusive collective-bargaining repre- sentative of the unit employees. (f) 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) On request, bargain with Painters & Allied Trades District Council, No. 6, as the limited exclusive collec- tive-bargaining representative of the unit. (b) On request by the Union, continue in effect all of the terms and conditions of employment contained in the 2009–2013 Working Agreement and any automatic re- newal or extension of it, and rescind any unilateral changes upon request. (c) Make the unit employees whole for any loss of earnings or other benefits they may have suffered as a result of the Respondents’ unlawful conduct, with inter- est, in the manner set forth in the remedy section of this decision. (d) Within 14 days from the date of this Order, offer the unit employees full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (e) 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 employee. (f) Within 14 days from the date of this Order, remove from their files any reference to the unlawful failure to continue to employ employees of Respondent Dentz en- gaged in providing commercial and residential painting services, and within 3 days thereafter, notify the employ- ees in writing that this has been done and that the termi- nations will not be used against them in any way. (g) Furnish the Union with the information it requested on March 8, 2012. (h) 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- ords and reports, and all other records including an elec- tronic copy of such records, if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at their facility in Brook Park, Ohio, copies of the attached notice marked “Appendix A.”2 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondents’ authorized repre- sentative, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents cus- tomarily communicate with their employees by such means. Reasonable steps shall be taken by the Respond- ents 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 Respondents have gone out of business or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since January 1, 2012. 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” (j) Within 21 days after service by the Region, file with the Regional Director for Region 8 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondents have 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 vio- lated 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to continue to employ employees of Respondent Dentz engaged in providing commercial and residential painting services because they engage in protected concerted activities or because of their support for and activities on behalf of the Union or to discourage employees from engaging in these activ- ities. WE WILL NOT fail and refuse to bargain collectively and in good faith with Painters & Allied Trades District Council, No. 6 as the limited exclusive collective bar- gaining representative of our unit employees in the fol- lowing unit during the term of the 2009–2013 Working Agreement and any automatic renewal or extension of it: All journeymen and apprentices engaged in commer- cial and residential painting work and related work. WE WILL NOT fail and refuse to continue in effect all of the terms and conditions of the 2009–2013 Working Agreement and any automatic renewal or extension of it. WE WILL NOT bypass the Union or deal directly with employees with respect to wages and other terms and conditions of employment by discussing and negotiating individual pay rates and benefits. WE WILL NOT fail and refuse to furnish the Union with requested information that is necessary for and relevant to the performance of its duties as the exclusive collec- tive-bargaining representative of the unit employees. DENTZ PAINTING, INC. 397 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, on request, bargain with the Union as the limited exclusive collective-bargaining representative of the employees in the unit. WE WILL, on request by the Union, continue in effect all of the terms and conditions of employment contained in our 2009–2013 Working Agreement and any automat- ic renewal or extension of it, and WE WILL rescind any unilateral changes upon request. WE WILL make our unit employees whole for any loss of earnings or other benefits they may have suffered as a result of our unlawful conduct, with interest. WE WILL, within 14 days from the date of the Board’s Order, offer the unit employees full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful failure to continue to employ employees of Respond- ent Dentz engaged in providing commercial and residen- tial painting services, and WE WILL, within 3 days there- after, notify the employees in writing that this has been done and that the terminations will not be used against them in any way. WE WILL furnish the Union with the information it re- quested on March 8, 2012. 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 award to the appropriate calendar quarters for each em- ployee. DENTZ PAINTING, INC. AND GLOBAL CONTRACTING SERVICES The Board’s decision can be found at www.nlrb.gov/case/08-CA-083055 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B APPENDIX B 398 DENTZ PAINTING, INC. 399 399 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400 DENTZ PAINTING, INC. 401 401 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402 DENTZ PAINTING, INC. 403 403 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404 DENTZ PAINTING, INC. 405 405 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406