Pro Painters, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1999

330 N.L.R.B. 46 (N.L.R.B. 1999)

330 NLRB No. 46
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Pro Painters, Inc. and Painters and Allied Trades
District Council No. 51. Case 5–CA–27491
December 16, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon a charge filed by the Union on December 18,
1997, the General Counsel of the National Labor Rela-
tions Board issued a complaint on October 30, 1998,
against Pro Painters, Inc., the Respondent, alleging that it
has violated Section 8(a)(1) and (3) of the National La-
bor Relations Act. Subsequently, on November 11,
1998, the Respondent filed an answer admitting in part
and denying in part the allegations in the complaint. On
August 26, 1999, the General Counsel, the Respondent,
and the Union entered into a settlement agreement dis-
posing of all complaint allegations by providing that the
Respondent withdraw its answer.1
On October 25, 1999, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
27, 1999, the Board issued an order transferring the pro-
ceeding 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. 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. Here, although the Respondent initially filed
an answer, the Respondent subsequently agreed to with-
draw its answer pursuant to the terms of the settlement
agreement between the parties. Such a withdrawal of an
answer has the same effect as a failure to file an answer,
i.e., the allegations in the complaint must be considered
to be admitted to be true.2
Accordingly, based on the Respondent’s withdrawal of
its answer to the complaint pursuant to the settlement
agreement, and 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

1 By the terms of this settlement agreement, the Respondent agreed
not to oppose this Motion for Summary Judgment.
2 See Maslin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Virginia Beach,
Virginia, has been engaged in the business of residential
painting and related operations. During the calendar year
preceding the issuance of the complaint, the Respondent,
in conducting its business operations, purchased and re-
ceived goods and services valued in excess of $50,000
which were furnished to the Respondent at its Virginia
Beach, Virginia facility directly from points outside the
State of Virginia. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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
On or about December 9, 1997, the Respondent, by its
president, Pete Siegrist, at its Virginia Beach, Virginia
office, told a job applicant that he did not hire union em-
ployees.
Since on or about August 10, 1997, until on or about
May 19, 1998, the Respondent refused to hire applicants
Jan Barr and John St. John. The Respondent engaged in
this conduct because the named employee-applicants
formed, joined, and/or assisted the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed them
in Section 7 of the Act, in violation of Section 8(a)(1) of
the Act. By refusing to hire the individuals named
above, the Respondent has been discriminating in regard
to the hire or tenure or terms and conditions of employ-
ment of its employees, thereby discouraging membership
in a labor organization, in violation of Section 8(a)(3) of
the Act. The foregoing unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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.3

3 In the Motion for Summary Judgment, the General Counsel re-
quests that the Board’s remedy reflect the fact that discriminatees Jan
Barr and John St. John have declined offers of reinstatement; that Barr
has been made whole by the Respondent’s payment to her of $1600;
and that the backpay owed to John St. John, if any, is by the terms of
the settlement agreement contingent on the final disposition of a com-
pliance-specification case, Ferguson Electric, Inc., Case 3–CA–19630,
currently pending before the Board. The settlement agreement states
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ORDER
The National Labor Relations Board orders that the
Respondent, Pro Painters, Inc., Virginia Beach, Virginia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling job applicants that it does not hire union
employees.
(b) Refusing to hire job applicants because the appli-
cants formed, joined, and/or assisted the Union and en-
gaged in concerted 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) Make John St. John whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him. Backpay, if any, will be determined in
accordance with the terms of the parties’ August 26,
1999 settlement agreement.
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facility in Virginia Beach, Virginia, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall

that the parties “agree to be governed by the result in Ferguson. In the
event, however, that the Respondent or the NLRB reasonably believes
the Ferguson result is materially distinguishable, because based on
facts unique to Ferguson, the party so contending reserves the right to a
backpay proceeding in the instant case.” (Emphasis in original.)
4 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.”
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since December 9,
1997.
(d) 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.
Dated, Washington, D.C. December 16, 1999
Sarah M. Fox, Member
Wilma B. Liebman, Member
Peter J. Hurtgen, Member
(SEAL) 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT tell job applicants that we do not hire
union employees.
WE WILL NOT refuse to hire job applicants because the
applicants formed, joined, and/or assisted the Union and
engaged in concerted 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 have made offers of reinstatement to applicants
Jan Barr and John St. John, which were declined; we
have made Jan Barr whole for backpay owed to her by a
payment of $1600; and WE WILL make John St. John
whole for backpay owed to him, if any, by a payment to
be determined at a later date.
PRO PAINTERS, INC.