Clearwater Sprinkler System

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 435 (N.L.R.B. 2003)

CLEARWATER SPRINKLER SYSTEM 435
Clearwater Sprinkler System, Inc. and United Asso-
ciation of Sprinkler Fitters, Local 536 a/w
United Association of Plumbers and Pipefitters,
AFL-CIO. Cases 5–CA–30527, 5–CA–30581, 5–
CA–30612, and 5–CA–30788
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
The General Counsel seeks default judgments1 in these
cases on the grounds that the Respondent has failed to
file an answer to the complaints.
On charges filed by the Union in Cases 5–CA–30527,
5–CA–30581, and 5–CA–30612, the General Counsel
issued an “Order Consolidating Cases, Consolidated
Complaint, and Notice of Hearing” on September 30,
2002,2 in which he alleged that the Respondent commit-
ted several violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act). The General
Counsel contends that the Respondent did not submit a
sufficient answer to this complaint. Upon the filing of a
charge by the Union in Case 5–CA–30788, the General
Counsel issued an order consolidating cases, complaint,
and notice of rescheduled hearing on December 10, in
which he alleged that the Respondent committed addi-
tional violations of Section 8(a)(3) and (5) of the Act.3
The General Counsel contends that the Respondent also
did not submit a sufficient answer to this complaint.
On December 30, the Respondent submitted a letter to
the Region stating:
We have been in the process of bargaining in good
faith with the union. We are also meeting with them
again on January 15, 2002 [sic]. We feel that there will
be no need for a formal hearing and that all the issues
will be resolved once a contract has been signed.
On January 17, 2003, the General Counsel filed a Mo-
tion for Summary Judgment with the Board, moving for

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaints. Accordingly, we construe the General Counsel’s motion as a
motion for default judgment.
2 All dates refer to 2002 unless noted otherwise.
3 The September complaint was consolidated with the December
complaint. In this regard, the first paragraph of the December com-
plaint states in pertinent part as follows:
Upon charges filed in Cases 5-CA-30527, 5-CA-30581 and 5-CA-
30612 . . . an Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing issued on September 30, 2002; and the Union has
charged [unfair labor practices] in Case 5-CA-30788 . . . Based
thereon, the General Counsel . . . ORDERS that these cases are con-
solidated.
summary judgment on each separate complaint. On
January 22, 2003, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On February 10,
2003, the Respondent filed a letter response, with sup-
porting affidavits, to the Notice to Show Cause.
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 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. Both the September and December complaints
affirmatively state that, unless an answer is filed within
14 days of service, all the allegations in those respective
complaints will be considered admitted. Further, the
undisputed allegations in the motion disclose that the
Region, by letter dated December 3, notified the Respon-
dent that, unless an answer to the first complaint was
received by December 17, a motion for summary judg-
ment would be filed. The undisputed allegations in the
motion also disclose that the Region, by letter dated De-
cember 24, notified the Respondent that, unless an an-
swer to the second complaint was received by January 7,
2003, a motion for summary judgment would be filed.
The Respondent is apparently proceeding without legal
representation. We recognize that, when determining
whether to grant motions for default judgment, the Board
has shown some leniency toward respondents who pro-
ceed without benefit of counsel. Kenco Electric & Signs,
325 NLRB 1118 (1998). Thus, the Board will generally
not preclude a determination on the merits of a complaint
if it finds that a pro se respondent has filed a timely an-
swer, which can reasonably be construed as denying the
substance of the complaint allegations. Harborview
Electric Construction Co., 315 NLRB 301 (1994).
“Similarly, where a pro se respondent fails to file a
timely answer, but provides a ‘good cause’ explanation
for such failure, default judgment will not be entered
against it on procedural grounds.” Patrician Assisted
Living Facility, 339 NLRB No. 149, slip op. at 1 (2003).
As stated above, on December 30, the Respondent
submitted a letter (quoted in full above) to the Regional
Office. And, as noted above, on February 10, 2003, the
Respondent submitted a response to the Board’s Notice
to Show Cause why the General Counsel’s motion for
summary judgment should not be granted. That letter
transmitted to the Board copies of precomplaint investi-
gative affidavits obtained by the Board from the Respon-
dent’s officials. The letter states:

340 NLRB No. 50
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
Please see the attached affidavits in reference to
the above cases which were done by [the Board
agent investigating the unfair labor practice
charges]. We have no further information to provide
at this time. We have been working with the union
and meeting regularly to try and come to a final con-
tract.

Under the Board’s rules, the Respondent’s letters and
submitted affidavits are not sufficient answers to the
complaints. The letters completely fail to address the
substance of any of the 8(a)(1) and (3) allegations in the
complaints, or the 8(a)(5) refusal to provide information
allegation. While the Respondent’s December 2002 and
February 2003 letters assert that it was, at the time of
those letters, “in the process of bargaining in good faith
with the union,” meeting with the union on January 15,
and “working with the union and meeting regularly to try
[to] come to a final contract,” these assertions do not,
even at a minimum, address the alleged refusal to bargain
starting in June 2002.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
JURISDICTION
At all material times, the Respondent, a Maryland cor-
poration with an office and place of business in Balti-
more, Maryland, has been engaged in the business of
installing sprinkler systems for fire protection. During
the 12-month period preceding issuance of the December
complaint, the Respondent, in conducting its operations
described above, purchased and received at its Baltimore,
Maryland facility goods valued in excess of $50,000 di-
rectly from points located outside the State of Maryland.
We find that the Respondent 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.
F. Michael Morgan-President
Patrick Snyder-Superintendent
At all material times, Desiree Dunigan has held the po-
sition of bookkeeper and office manager, and 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 appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time sprinkler fit-
ters and helpers and sprinkler fitter/truck drivers
employed by the Respondent at its Baltimore, Mary-
land facility, excluding all office clerical employees,
guards, professional employees, and supervisors as
defined in the Act.

On June 17, the Union was certified as the exclusive
collective-bargaining representative of the unit. At all
times since June 17, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining rep-
resentative of the unit.
On or about March 26, the Respondent, by F. Michael
Morgan, interrogated employees about whether they had
been talking to the Union; and, at the MICA jobsite, told
employees he would not let the Respondent go union,
threatened employees he would “close the f— doors” if
the Union came in, and interrogated employees about
whether the union organizer had been coming around.
On or about April 4, the Respondent, by F. Michael
Morgan, in a telephone conversation, interrogated em-
ployees about whether anyone had asked employees at
the MICA jobsite to sign union cards; and, on or about
May 24, at its Baltimore facility, in the presence of em-
ployees, told the union organizer he would not shake his
hand if he were dying in the street, and told him to “get a
f— real job.”
On or about April 5, the Respondent, by Patrick Sny-
der, at the MICA jobsite, told employees he knew they
had been signing union cards and threatened that Morgan
would find out who had signed union cards; and threat-
ened employees that Morgan would close up the business
if the Union came in; and, in or around April 2002,
warned employees not to talk to John Warehime and
Eugene Snyder because they were Union.
Through these above-mentioned actions of its Supervi-
sor and Agent F. Michael Morgan and Supervisor and
Agent Patrick Snyder, the Respondent has interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act in viola-
tion of Section 8(a)(1) of the Act.
On or about May 28, Respondent ceased providing
transportation for employee Jesse Wilson; and on or
about June 7, the Respondent terminated him. On or
about July 8, the Respondent terminated employee
Eugene Snyder. On or about September 24, the Respon-
CLEARWATER SPRINKLER SYSTEM 437
dent discriminatorily selected employee Edrick Artis for
layoff, and laid him off.
The Respondent ceased providing transportation for
Jesse Wilson, terminated Wilson and Eugene Snyder,
and discriminatorily selected for layoff and laid off
Edrick Artis in violation of Section 8(a)(3) of the Act,
because these employees joined, supported, or assisted
the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
On or about June 18, the Union, by letter, requested
that the Respondent bargain collectively with it as the
exclusive collective-bargaining representative of the unit.
Since about June 19, the Respondent has failed and re-
fused to bargain with the Union as the exclusive collec-
tive-bargaining representative of the unit.
On or about September 6, the Union, by letter, re-
quested the Respondent to furnish the Union with the
following information:

(a) a copy of current personnel policies, proce-
dures, and practices whether oral or written;
(b) a copy of all company fringe benefit plans in-
cluding pension, profit sharing, severance, vacation,
health and welfare, apprenticeship, training, legal
services, child care, or any other plans which relate
to bargaining unit employees;
(c) a copy of all disciplinary notices, warnings or
records of disciplinary personnel actions for the last
year; and
(d) a copy of any attendance policies which were
in existence during the last five years but which are
no longer in effect or have been modified.

The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
Since about September 6, the Respondent has failed
and refused to furnish the Union with the requested in-
formation.
By refusing to bargain with the Union and refusing to
provide information necessary for and relevant to the
Union’s performance of its function as the exclusive col-
lective-bargaining representative of the employees in the
unit, the Respondent has been failing and refusing to
bargain collectively and in good faith with the exclusive
collective-bargaining representative of employees within
the meaning of Section 8(d) of the Act in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, in violation of Section 8(a)(1) of the
Act. By ceasing to provide transportation for employee
Jesse Wilson; by terminating Wilson and employee
Eugene Snyder; and by discriminatorily selecting for
layoff and laying off employee Edrick Artis, the Respon-
dent has discriminated in regard to hire or tenure or terms
and conditions of employment of employees, thereby
discouraging membership in a labor organization in vio-
lation of Section 8(a)(3) and (1) of the Act. In addition,
by failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of the unit,
and by failing to provide the Union with information
necessary for and relevant to the Union’s performance of
its function as the exclusive collective-bargaining repre-
sentative of the employees in the unit, the Respondent
has been failing and refusing to bargain collectively and
in good faith with the exclusive collective-bargaining
representative of its employees within the meaning of
Section 8(d) in violation of Section 8(a)(5) and (1) of the
Act.
The unfair labor practices affect commerce within the
meaning of Sections 8(d), 8(a)(1), (3), and (5) and 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.
Specifically, having found that the Respondent has
violated Section 8(a)(3) and (1) by terminating Jesse
Wilson and Eugene Snyder, and discriminatorily select-
ing for layoff and laying off Edrick Artis, we shall order
the Respondent to offer these individuals full reinstate-
ment to their former jobs, or if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, and to make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent
shall also be required to remove from its files any and all
references to the unlawful terminations of Jesse Wilson
and Eugene Snyder and the discriminatory selection for
layoff and layoff of Edrick Artis, and to notify them in
writing that this has been done.
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to bargain on
request with the Union and, if an understanding is
reached, to embody the understanding in a signed agree-
ment. We also shall order the Respondent to furnish the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
Union with the information requested on or about Sep-
tember 6.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning on the date the Respondent begins
to bargain in good faith with the Union. Mar-Jac Poul-
try, 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817; Burnett Construction Co., 149
NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Clearwater Sprinkler System, Inc., Balti-
more, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Telling employees it would not let the Respondent
go Union.
(c) Telling the union organizer it would not shake his
hand if he were dying in the street and to get a real job.
(d) Telling employees it knew they had been signing
union cards and threatening that it would find out who
had signed union cards.
(e) Threatening employees that it would close up the
business if the Union came in.
(f) Warning employees not to talk to employees or
other individuals because they were Union.
(g) Refusing to provide transportation for employees
because employees joined, supported, or assisted the
Union and engaged in concerted activities.
(h) Terminating or otherwise discriminating against
any employee for supporting United Association of
Sprinkler Fitters Local 536 a/w United Association of
Plumbers and Pipefitter, AFL–CIO or any other labor
organization.
(i) Selecting for lay off, laying off, or otherwise dis-
criminating against our employees for supporting United
Association of Sprinkler Fitters, Local 536 a/w United
Association of Plumbers and Pipefitters, AFL–CIO or
any other labor organization.
(j) Failing and refusing to bargain with United Asso-
ciation of Sprinkler Fitters, Local 536 a/w United Asso-
ciation of Plumbers and Pipefitters, AFL–CIO, as the
exclusive bargaining representative of employees in the
appropriate unit.
(k) Failing and refusing to provide the Union with in-
formation that is relevant and necessary to the perform-
ance of its duties as the exclusive bargaining representa-
tive of employees in the unit.
(l) 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) Within 14 days from the date of this Order, offer
Jesse Wilson, Eugene Snyder, and Edrick Artis full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed.
(b) Make Jesse Wilson, Eugene Snyder, and Edrick
Artis whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful ter-
minations of Jesse Wilson and Euugene Snyder, and the
discriminatory selection for layoff and layoff of Edrick
Artis, and within 3 days thereafter notify them in writing
that this has been done, and that the unlawful conduct
will not be used against them in any way.
(d) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time sprinkler fitters and
helpers and sprinkler fitter/truck drivers employed by
Respondent at its Baltimore, Maryland facility, exclud-
ing all office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(e) Furnish to the Union in a timely manner the infor-
mation requested by the Union on or about September 6,
2002: a copy of current personnel policies, procedures,
and practices, whether oral or written; a copy of all com-
pany fringe benefit plans including pension, profit shar-
ing, severance, vacation, health and welfare, apprentice-
ship, training, legal services, child care, or any other
plans which relate to bargaining unit employees; a copy
of all disciplinary notices, warnings, or records of disci-
plinary personnel actions for the last year; and a copy of
any attendance policies which were in existence during
the last 5 years but which are no longer in effect or have
been modified.
(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-
CLEARWATER SPRINKLER SYSTEM 439
cial security payment records, timecards, personnel re-
cords 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.
(g) Within 14 days after service by the Region, post at
its facility in Baltimore, Maryland, copies of the attached
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 repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 Re-
spondent has gone out of business or closed the facility
involved in this proceeding, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since March 26, 2002.
(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

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 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 coercively question you about your
union support or activities.

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.”
WE WILL NOT tell employees we will not let our
company go Union.
WE WILL NOT tell the union organizer that we will
not shake his hand if he were dying in the street and to
get a real job.
WE WILL NOT tell employees we knew they had
been signing union cards and threatening that we would
find out who had signed union cards.
WE WILL NOT threaten employees that we will close
up our business if the Union comes in.
WE WILL NOT warn employees not to talk to certain
employees because they are Union.
WE WILL NOT refuse to provide transportation for
employees because they join, support, or assist the Union
and engage in protected concerted activities.
WE WILL NOT terminate or otherwise discriminate
against any of you for supporting the Union or any other
labor organization.
WE WILL NOT select for layoff, actually layoff or
otherwise discriminate against any of you for supporting
the Union or any other labor organization.
WE WILL NOT fail and refuse to bargain with the
Union as the exclusive bargaining representative of em-
ployees in the unit.
WE WILL NOT fail and refuse to provide the Union
with information that is relevant and necessary to the
performance of its duties as the exclusive bargaining
representative of 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
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Jesse Wilson, Eugene Snyder, and
Edrick Artis full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the
Board’s Order, make Jesse Wilson, Eugene Snyder, and
Edrick Artis whole for any loss of earnings and other
benefits they suffered as a result of the unlawful dis-
crimination against them, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any and all refer-
ences to the unlawful terminations of Jesse Wilson and
Eugene Snyder, and the discriminatory selection for lay-
off and layoff of Edrick Artis, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done, and that the unlawful conduct will not be used
against them in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All full-time and regular part-time sprinkler fitters and
helpers and sprinkler fitter/truck drivers employed by
the Respondent at its Baltimore, Maryland facility, ex-
cluding all office clerical employees, guards, profes-
sional employees, and supervisors as defined in the
Act.
WE WILL furnish the Union the information it re-
quested on September 6, 2002.
CLEARWATER SPRINKLER SYSTEM, INC.