Express Plumbing

National Labor Relations Board - Board Decisions

Aug 16, 1993

311 N.L.R.B. 1274 (N.L.R.B. 1993)

1274
311 NLRB No. 171
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The amended charge was served on the Respondent by certified
mail, return receipt requested. Neither a return receipt or a returned
copy of the charge were found by the Regional Office. Assuming
that the Respondent did not claim the amended charge, it does not
in any event defeat the purposes of the Act. See, e.g., Michigan Ex-
pediting Service, 282 NLRB 210 fn. 6 (1986).
Express Plumbing and Plumbers & Pipefitters
Local No. 4, a/w United Association of Jour-
neymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States &
Canada, AFL–CIO and Plumbers & Pipefitters
Local No. 138, a/w United Association of Jour-
neymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States &
Canada, AFL–CIO. Cases 1–CA–30290 and 1–
CA–30373
August 16, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge and amended charge in Case 1–CA–
30290 filed by Plumbers & Pipefitters Local No. 4,
a/w United Association of Journeymen & Apprentices
of the Plumbing & Pipefitting Industry of the United
States & Canada, AFL–CIO (Local No. 4), the General
Counsel of the National Labor Relations Board issued
a complaint on April 22, 1993, against Express Plumb-
ing (the Respondent) alleging that it has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act. Although properly served copies of the charge,
amended charge,1 and complaint, the Respondent
failed to file an answer.
Upon a charge and amended charge in Case 1–CA–
30373 filed by Plumbers & Pipefitters Local No. 138,
a/w United Association of Journeymen & Apprentices
of the Plumbing & Pipefitting Industry of the United
States & Canada, AFL–CIO (Local No. 138), the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint on May 17, 1993, against the Re-
spondent alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. Although
properly served copies of the charge, amended charge,
and complaint, the Respondent failed to file an answer.
Cases 1–CA–30290 and 1–CA–30373 were consoli-
dated by order of June 17, 1993. On June 30, 1993,
the General Counsel filed a Motion for Summary Judg-
ment with the Board. On July 2, 1993, the Board is-
sued an order transferring the proceeding 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.
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 June 4, 1993, no-
tified the Respondent that unless an answer was re-
ceived June 11, 1993, a Motion for Summary Judg-
ment would be filed.
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
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and
place of business in Worcester, Massachusetts, has
been engaged as a mechanical contractor in the plumb-
ing and heating industry. During the calendar year end-
ing December 31, 1992, the Respondent purchased and
received at its Worcester facility products, goods, and
materials valued in excess of $50,000 directly from
points outside the Commonwealth of Massachusetts.
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 Local Nos. 4 and 138 are
labor organizations within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of Respondent constitute
units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
Unit A:
All plumbers and pipefitters employed by the
Respondent within the jurisdiction of Local No. 4,
excluding guards and supervisors as defined in the
Act.
Unit B:
All plumbers and pipefitters employed by the
Respondent within the jurisdiction of Local No.
138, excluding guards and supervisors as defined
in the Act.
Massachusetts Association of Plumbing & Heating and
Cooling Contractors and New England Mechanical
Contractor’s Association (the Associations) have been
organizations composed of various employers engaged
in the plumbing and heating contracting industry, one
purpose of which is to represent their employer-mem-
bers in negotiating and administering collective-bar-
gaining agreements with Local No. 4. The Respondent
1275EXPRESS PLUMBING
has been an employer-member of the Associations at
all material times.
About August 31, 1992, the Associations and Local
No. 4 entered into a collective-bargaining agreement
which is effective by its terms for the period Sep-
tember 1, 1992, through August 31, 1994 (1992–1994
contract). Since about 1990, Local No. 4 has been the
designated exclusive collective-bargaining representa-
tive of unit A and since that date Local No. 4 has been
recognized as the representative by the Respondent.
This recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is the 1992–1994 contract. At all times since
1990, based on Section 9(a) of the Act, Local No. 4
has been and is the exclusive collective-bargaining rep-
resentative of unit A.
United Employers Association of Plumbing-Heating-
Cooling Industry (United) has been an organization
composed of various employers engaged in the plumb-
ing and heating contracting industry, one purpose of
which is to represent its employer-members in negoti-
ating and administering collective-bargaining agree-
ments with Local No. 138. United and Local No. 138
are parties to a collective-bargaining agreement which
is effective for the period January 1, 1992 through Au-
gust 31, 1993 (1992–1993 contract). Since on or about
June 8, 1993, Local No. 138 has been the exclusive
collective-bargaining representative of the employees
of unit B and since that date Local No. 138 has been
recognized as such representative by the Respondent
This recognition is embodied in the 1992–1993 con-
tract adopted by the Respondent on June 8, 1992. At
all times since June 8, 1992, based on Section 9(a) of
the Act, Local No. 138 has been, and is, the exclusive
collective-bargaining representative of the employees
in unit B.
Since about September 15, 1992, and continuing
through the present, the Respondent has failed to con-
tinue in effect all the terms and conditions of the
1992–1994 contract by failing to remit union dues and
by failing to make payments to the health and welfare
fund, pension fund, training fund and annuity fund as
required by the 1992–1994 contract.
For the period September 1992 through October 31,
1992, the Respondent has failed to continue in effect
all the terms and conditions of the 1992–1993 contract
by failing to remit union dues and by failing to make
payments to the health and welfare fund, pension fund,
training fund, annuity fund, vacation fund, national
pension fund, and industry fund (educational scholar-
ships for children of unit B members).
These terms and conditions of employment are man-
datory subjects for the purposes of collective bar-
gaining. The Respondent engaged in the conduct with-
out the Union’s consent.
CONCLUSION OF LAW
By failing to remit union dues and by failing to
make fringe benefit fund payments pursuant to the
1992–1994 contract and the 1992–1993 contract, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to make contractually
required fringe benefit fund payments, we shall order
the Respondent to make whole its employees by mak-
ing all payments that have not been made and that
would have been made but for the Respondent’s un-
lawful failure to make them, including any additional
amounts applicable to such delinquent payments as de-
termined in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). In
addition, the Respondent shall reimburse employees for
any expenses ensuing from its failure to make such re-
quired payments, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981), such amounts to be computed in
the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to remit to
Local Nos. 4 and 138 the union dues that have not
been remitted with interest to be computed in the man-
ner set forth in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Express Plumbing, Worcester, Massachu-
setts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to remit union dues.
(b) Failing to make payments to fringe benefit funds
pursuant to the 1992–1993 contract and the 1992–1994
contract.
(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 Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remit to Local Nos. 4 and 138 the union dues
with interest as described in the remedy section of this
decision.
(b) Remit all fringe benefit fund payments and make
its employees whole for failure to make these pay-
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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.’’
ments, with interest as described in the remedy section
of this decision.
(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 its facility in Worcester, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’2
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to bargain in good faith with
Plumbers & Pipefitters Local No. 4 or Local No. 138,
a/w United Association of Journeymen & Apprentices
of the Plumbing and Pipefitting Industry of the United
States & Canada, AFL–CIO as the exclusive collec-
tive-bargaining representative of all plumbers and pipe-
fitters employed by us within each of the Local’s juris-
dictions, excluding guards and supervisors as defined
in the Act.
WE WILL NOT fail to remit union dues.
WE WILL NOT fail to make fringe benefit fund pay-
ments as required by our collective bargaining agree-
ments.
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 remit to Local Nos. 4 and 138, with inter-
est, the dues that have not been remitted to them.
WE WILL make whole our employees, with interest,
for any losses which they have sustained as a result of
our failure to make fringe benefit payments and we
will make all fringe benefits payments that we have
not made pursuant to our contractual obligation.
EXPRESS PLUMBING