K & D Painting

National Labor Relations Board - Board Decisions

Apr 12, 1995

316 N.L.R.B. 1196 (N.L.R.B. 1995)

1196
316 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The attorney for Respondent K and D Painting did respond by
letter dated October 11, 1994, that he had been instructed by the
president of K and D Painting to allow a default on the complaint
as K and D Painting ‘‘is essentially an asset-less company whose
only assets are some accounts receivable already subject to a para-
mount IRS tax lien.’’
2 Reinsel is a supervisor of the Respondents within the meaning
of Sec. 2(11) of the Act and is an agent of Respondents within the
meaning of Sec. 2(13) of the Act.
K and D Painting, Inc., and JAR Painting and Dale
Bowman. Case 8–CA–26330
April 12, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed by Dale Bowman, an individual,
on April 26, 1994, the General Counsel of the National
Labor Relations Board issued a complaint on Septem-
ber 30, 1994, against K and D Painting, Inc., and JAR
Painting, the Respondents, alleging that they have vio-
lated Section 8(a)(1) and (3) of the National Labor Re-
lations Act. Although properly served copies of the
charge and complaint, the Respondents failed to file an
answer.1
On January 17, 1995, the General Counsel filed a
Motion for Summary Judgment with the Board. On
January 20, 1995, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondents filed no response. The allegations in the mo-
tion 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, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated October 17,
1994, notified the Respondent JAR that unless an an-
swer was received by November 4, 1994, a Motion for
Summary Judgment would be filed.
The letter dated October 11, 1994, from K and D’s
attorney stating that Respondent K and D was allowing
a default on the complaint because it is essentially an
assetless company does not constitute a proper answer
to the complaint because the letter does not address the
facts alleged in the complaint. Furthermore, even if the
letter constituted a proper answer, the Respondent has
not raised any issues warranting a hearing.
In the absence of good cause being shown for the
failure to file a proper and timely answer, and in the
absence of any material issues warranting a hearing,
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, K and D Painting Inc., is an Ohio
corporation, with a facility in Toledo, Ohio, where it
annually performs services in excess of $50,000 in
Ohio and in States other than the State of Ohio for en-
tities which are in commerce on a direct basis. We
find that the Respondent K and D Painting, Inc. is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent JAR
Painting, a sole proprietorship, has been owned by
John Kouhn, and doing business as JAR Painting. An-
nually, JAR Painting, in the course and conduct of its
commercial painting business, has received $50,000 for
services performed for entities engaged in commerce
on a direct basis. We find that the Respondent JAR
Painting is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, K and D Painting, Inc. and JAR
Painting have been joint employers of the employees
of JAR Painting. K and D Painting, Inc. has an owner-
ship interest in and has possessed control over the
labor relations policy of JAR Painting. Sometime after
January 31, 1994, JAR Painting was established by
Respondent K and D Painting, Inc. as a disguised con-
tinuance of Respondent K and D Painting, Inc. Re-
spondent JAR Painting and Respondent K and D
Painting, Inc. are alter egos and a single employer
within the meaning of the Act.
International Brotherhood of Painters and Allied
Trades, Local 406, AFL–CIO (the Union) is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent K and D Painting, Inc. and Respondent
JAR Painting have been parties to a contract which
provides that K and D Painting and/or JAR Painting,
as the agent for K and D Painting, Inc., perform serv-
ices in connection with a contract for painting services
for Central Ohio Building Company, Inc. at its Marion,
Ohio jobsite.
Since about February 9, 1994, Supervisor Mark
Reinsel,2 at the Marion, Ohio jobsite, threatened em-
ployees that if the Union’s business agent were to visit
1197K & D PAINTING
3 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.’’
the Marion jobsite the employee responsible would be
assaulted, killed, and/or suffer other unspecified repris-
als. By this conduct Respondents interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation
of Section 8(a)(1) of the Act.
About February 10, 1994, Respondents permanently
laid off and failed to reemploy their employee Dale
Bowman, the Union’s jobsite steward, because of
Bowman’s membership in and activities in support of
the Union. By this conduct Respondents have discrimi-
nated against Bowman in violation of Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
1. By threatening employees that if the Union’s
business agent were to visit the Marion jobsite the em-
ployee responsible would be assaulted, killed, and/or
suffer other unspecified reprisals, the Respondents
have threatened employees, and have thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By, on about February 10, 1994, permanently lay-
ing off and failing to reemploy their employee Dale
Bowman, the Union’s jobsite steward, because of
Bowman’s membership in and activities in support of
the Union, the Respondents engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and 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. Specifi-
cally, having found that the Respondents have violated
Section 8(a)(1) and (3) by permanently laying off and
failing to reemploy Dale Bowman, we shall order the
Respondents to offer the discriminatee immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed, and to make him whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against him. Backpay
shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall also be required to
expunge from its files any and all references to the un-
lawful permanent layoff and failure to reemploy, and
to notify the discriminatee in writing that this has been
done.
ORDER
The National Labor Relations Board orders that Re-
spondent K and D Painting, Inc., Toledo, Ohio, its of-
ficers, agents, successors, and assigns, and that Re-
spondent John Kouhn, a sole proprietorship, doing
business as JAR Painting, Toledo, Ohio, his agents,
successors, and assigns, shall
1. Cease and desist from
(a) Permanently laying off and failing to reemploy
or otherwise discriminating against any employee for
membership in and support of the International Broth-
erhood of Painters and Allied Trades, Local 406, AFL–
CIO or any other union.
(b) Threatening employees because of their union
support or activities.
(c) 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) Offer Dale Bowman immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of the decision.
(b) Remove from their files any reference to the un-
lawful permanent layoff and failure to reemploy and
notify Dale Bowman in writing that this has been done
and that the permanent layoff and failure to reemploy
will not be used against him in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at their facility in Toledo, Ohio, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 8, after being signed by the Respondents’
authorized representatives, shall be posted by the Re-
spondents 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 Re-
spondents to ensure that the notices are not altered, de-
faced, or covered by any other material.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT permanently lay off and fail to reem-
ploy or otherwise discriminate against any of you for
supporting the International Brotherhood of Painters
and Allied Trades, Local 406, AFL–CIO or any other
union.
WE WILL NOT threaten you because of your union
support or activities.
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 offer Dale Bowman immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his permanent layoff and our failure to re-
employ him, less any net interim earnings, plus inter-
est.
WE WILL notify Dale Bowman that we have re-
moved from our files any reference to his permanent
layoff and our failure to reemploy him and that the
permanent layoff and our failure to reemploy him will
not be used against him in any way.
K AND D PAINTING, INC., AND JAR
PAINTING