John Pomaville Plumbing

National Labor Relations Board - Board Decisions

Mar 16, 2005

344 N.L.R.B. 138 (N.L.R.B. 2005)

344 NLRB No. 138
John Pomaville d/b/a John Pomaville Plumbing, a
sole proprietorship and Local 333, United Asso-
ciation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO. Case 7–CA–
47830
July 22, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The Acting General Counsel seeks summary judgment
in this case pursuant to the terms of a settlement agree-
ment. Upon a charge filed by the Union on August 30,
2004, the General Counsel issued the original complaint
on October 28, 2004, against John Pomaville d/b/a John
Pomaville Plumbing, a sole proprietorship, the Respon-
dent, alleging that it had violated Section 8(a)(1) and (3)
of the Act.
Subsequently, on January 12, 2005, the Respondent
and the Union entered into a settlement agreement,
which was approved by the Regional Director for Region
7 on January 13, 2005. The settlement agreement re-
quired the Respondent to, among other things, pay Tony
Hernandez $5244 in backpay, pay George Urdiales
$6293 in backpay, and pay Alfred Walters $7800 in
backpay, by no later than Friday, February 18, 2005.
The settlement agreement stated that these payments
constituted backpay for the period August 28, 2004
through January 14, 2005.1
In addition, the settlement agreement required the Re-
spondent to make an additional payment to Alfred Wal-
ters in the following circumstances:
The parties recognize that the amount of backpay to be
paid to Alfred Walters represents a compromise of the
total amount of backpay due him. It is agreed, there-
fore, that in the event he is required to reimburse the
Michigan Unemployment Agency (MUA) for any un-
employment compensation he received for the period
August 28, 2004 through January 14, 2005, Charged
Party will pay over to Walters the amount that he is re-
quired to reimburse MUA, up to but not more than
$6,000.00. Charged Party will make the payment no
later than 30 calendar days after notice that such pay-
ment is due.
The settlement agreement also contained the following
provision:

1 The settlement agreement also required the Respondent to post a
notice to employees.
Non-Compliance with Agreement—The Charged Party
agrees that, in case of non-compliance by the Charged
Party with any of the terms of this Agreement, includ-
ing but not limited to failure to make timely installment
payments of monies, and after 15 days notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by
Charged Party, the Regional Director shall reissue the
complaint previously issued in the instant case. There-
after, the General Counsel may file a motion for sum-
mary judgment with the Board on the allegations of the
just reissued complaint concerning the violations al-
leged therein. Charged Party understands and agrees
that the allegations of the aforementioned complaint
may be deemed to be true by the Board, that it will not
contest the validity of any such allegations, and that the
Board may enter findings, conclusions of law, and an
order on the allegations of the aforementioned com-
plaint. On receipt of said motion for summary judg-
ment, the Board shall issue an Order requiring the
Charged Party to show cause why said Motion of the
General Counsel should not be granted. The only issue
that may be raised in response to the Board’s Order To
Show Cause is whether Charged Party defaulted upon
the terms of this Settlement Agreement. The Board
may then, without necessity of trial or any other pro-
ceeding, find all allegations of the complaint to be true
and make findings of fact and conclusions of law con-
sistent with those allegations adverse to the Charged
Party, on all issues raised by the pleadings. The Board
may then issue an Order providing full remedy for the
violations found as is customary to remedy such viola-
tions, including but not limited to the provisions of this
Settlement Agreement. The parties further agree that
the Board Order and a U.S. Court of Appeals Judgment
may be entered hereon ex parte.
By letter dated January 25, 2005, the Regional Direc-
tor for Region 7 provided the Respondent with a con-
formed copy of the settlement agreement, and copies of
the notice to employees for posting. This letter also ad-
vised the Respondent to take the steps necessary to com-
ply with the settlement agreement. Thereafter, on Febru-
ary 17, 18, 22, 25, and March 4 and 18, 2005, the com-
pliance officer for the Region reminded the Respondent
of its obligation to pay the required backpay amounts and
to post the notice to employees.
By letter dated March 1, 2005, the compliance officer
again reminded the Respondent of its obligations to pay
backpay and post the notice, and warned that its failure
to do so may result in the filing of a Motion for Summary
Judgment. By letter of March 21, 2005, the Regional
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Director advised the Respondent that if it did not cure its
noncompliance by April 5, 2005, the Regional Director
would reissue the complaint and file a Motion for Sum-
mary Judgment. Shortly thereafter, the Respondent ad-
vised the Region that it posted the notice to employees
on March 18, 2005. The Region has confirmed that the
notice was posted. The Respondent, however, has not
paid any of the backpay required under the settlement
agreement.
Accordingly, pursuant to the terms of the noncompli-
ance provision of the settlement agreement, the Regional
Director reissued the complaint on April 15, 2005.
On April 22, 2005, the General Counsel filed a Motion
for Summary Judgment with the Board. On April 27,
2005, the Board issued an order transferring the proceed-
ing 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
According to the uncontroverted allegations in the
General Counsel’s motion, the Respondent has failed to
comply with the settlement agreement by failing to remit
any of the agreed-upon backpay amounts due employees
under the settlement agreement. Consequently, pursuant
to the noncompliance provisions of the settlement
agreement set forth above, we find that all of the allega-
tions of the complaint are true.2 Accordingly, we grant
the General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been owned
by John Pomaville as a sole proprietorship, doing busi-
ness as John Pomaville Plumbing, with a place of busi-
ness in Lansing, Michigan, and has been engaged in the
construction industry as a contractor providing plumbing
services.
During the year 2003, the Respondent, in conducting
its business operations described above, purchased and
received at its Lansing facility products, goods, and ma-
terials valued in excess of $50,000 directly from points
located outside the State of Michigan.
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 333, United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL–

2 See U-Bee, Ltd., 315 NLRB 667 (1994).
CIO (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, John Pomaville has been the
owner of the Respondent and a supervisor of the Re-
spondent within the meaning of Section 2(11) of the Act
and an agent of the Respondent within the meaning of
Section 2(13) of the Act.
The Respondent, by its agent John Pomaville, at its
Lansing facility:
(1) About May 5 and June 10, 2004, advised employ-
ees that he did not want any union activity in his shop.
(2) About May 5, 2004, directed employees to confirm
in writing that they would not engage in union activities.
(3) About June 11 and July 26, 2004, distributed letters
to employees threatening them with discharge if they
engaged in any union activity and asked them to sign and
return the letters to the Respondent.
(4) About August 23, 2004, conveyed the impression
to employees that their union activities were under sur-
veillance by indicating it was aware that certain of its
employees were supporters of the Union and that the
Respondent has contact with various union officials to
obtain such information.
(5) About August 27, 2004, permanently laid off em-
ployees Tony Hernandez, George Urdiales, and Alfred
Walters.
The Respondent permanently laid off employees Her-
nandez, Urdiales, and Walters because of employees’
sympathies for the Union, and to discourage employees
from engaging in any activities on behalf of the Union,
or any other protected concerted activities.
CONCLUSIONS OF LAW
1. By advising employees that it did not want any un-
ion activity in its shop; by directing employees to con-
firm in writing that they would not engage in union ac-
tivities; by threatening employees with discharge if they
engaged in union activity; and by conveying the impres-
sion to employees that their union activities were under
surveillance, the Respondent has 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.
2. By permanently laying off employees Tony Her-
nandez, George Urdiales, and Alfred Walters because of
employees’ union sympathies, the Respondent has dis-
criminated in regard to the hire or tenure or terms and
conditions of employment of its employees, thereby dis-
couraging membership in a labor organization, in viola-
tion of Section 8(a)(3) and (1) of the Act.
JOHN POMAVILLE PLUMBING 3
3. The Respondent’s 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. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) of the Act by permanently laying off Tony Hernan-
dez, George Urdiales, and Alfred Walters, we shall order
the Respondent to make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them. In this regard, the Respondent
agreed in the settlement agreement that it would pay Her-
nandez $5244 in backpay, that it would pay Urdiales
$6293 in backpay, and that it would pay Walters $7800
in backpay, to cover the period from their terminations
until the effective date of the settlement agreement. The
Respondent also agreed to pay Walters an additional
amount, up to $6000, if he was required to reimburse the
Michigan Unemployment Agency for unemployment
compensation received for that same period. As indi-
cated above, the Respondent has not paid any backpay to
the three discriminatees, and therefore we shall order the
Respondent to pay them the amounts set forth in the set-
tlement agreement.
We find, however, that the backpay due Hernandez,
Urdiales, and Walters should not be limited to these
amounts. As set forth above, the settlement agreement
provided that, in the event of noncompliance, the Board
could issue an Order “providing full remedy for the vio-
lations found as is customary to remedy such violations,
including but not limited to the provisions of this Settle-
ment Agreement.” Thus, under this language, it is ap-
propriate to provide the “customary” remedies of rein-
statement, full backpay, expungement of the Respon-
dent’s personnel records, and notice posting.3
The additional backpay due the three employees shall
be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
However, because we shall order the Respondent to pay
the liquidated backpay amounts specified in the settle-
ment agreement, the applicable backpay periods will
commence on January 15, 2005, the date following the
backpay period encompassed by the terms of the settle-

3 Although the Respondent posted a notice to employees pursuant to
the settlement agreement, we find that a notice posting remedy is ap-
propriate here. The notice required by the settlement agreement differs
in material respects from the notice that is warranted in view of our
findings and Order herein.
ment agreement. We find it necessary to impose this
limitation to prevent an unintended double recovery for
the periods running from the date that the three discrimi-
natees were permanently laid off to the effective date of
the settlement agreement.
We shall also order the Respondent to offer Hernan-
dez, Urdiales, and Walters 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 and privileges previously en-
joyed. The three employees waived reinstatement in
exchange for the backpay required to be paid them under
the settlement agreement. Inasmuch as the Respondent
has failed to remit any backpay to the employees and the
Regional Director has effectively revoked the settlement
agreement, we find that a reinstatement remedy is appro-
priate here.
In addition, the Respondent shall be required to re-
move from its files all references to the unlawful perma-
nent layoffs of Hernandez, Urdiales, and Walters, and to
notify them in writing that this has been done and that
the layoffs will not be used against them in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, John Pomaville d/b/a John Pomaville
Plumbing, a sole proprietorship, Lansing, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Advising employees that it does not want any union
activity in its shop.
(b) Directing employees to confirm in writing that they
will not engage in union activities.
(c) Distributing letters to employees threatening them
with discharge if they engage in any union activity and
requiring them to sign and return the letters to the Re-
spondent.
(d) Conveying the impression to employees that their
union activities are under surveillance.
(e) Permanently laying off or otherwise discriminating
against employees because they support Local 333,
United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO, or any other labor organi-
zation.
(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) Within 14 days from the date of this Order, offer
Tony Hernandez, George Urdiales, and Alfred Walters
full reinstatement to their former jobs or, if those jobs no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed.
(b) Remit to Region 7 $5244 to be disbursed to Tony
Hernandez, $6293 to be disbursed to George Urdiales,
and $7800 to be disbursed to Alfred Walters, plus any
additional amount due to Walters, up to $6000, for
money that he may be required to reimburse to the
Michigan Unemployment Agency, in accordance with
the settlement agreement approved by the Regional Di-
rector on January 13, 2005, and make them whole for
any loss of earnings and other benefits suffered since
January 14, 2005, as a result of their unlawful permanent
layoffs, with interest, in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files all references to the unlawful permanent
layoffs of Tony Hernandez, George Urdiales, and Alfred
Walters, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful lay-
offs will not be used against them in any way.
(d) 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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Lansing, Michigan, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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 these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

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.”
to all current employees and former employees employed
by the Respondent at any time since May 5, 2004.
(f) 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 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 advise employees that we do not want
any union activity in our shop.
WE WILL NOT direct employees to confirm in writing
that they will not engage in union activities.
WE WILL NOT distribute letters to employees threaten-
ing them with discharge if they engage in any union ac-
tivity and require them to sign and return the letters to us.
WE WILL NOT convey the impression to employees that
their union activities are under surveillance.
WE WILL NOT permanently lay off or otherwise dis-
criminate against employees because they support Local
333, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO, or any other labor organi-
zation.
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 Tony Hernandez, George Urdiales, and Al-
fred Walters 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 and privileges previously enjoyed.
WE WILL pay to Region 7 $5244 to be disbursed to
Tony Hernandez, $6293 to be disbursed to George
JOHN POMAVILLE PLUMBING 5
Urdiales, and $7800 to be disbursed to Alfred Walters,
plus any additional amount due to Walters, up to $6000,
for money that he may be required to reimburse to the
Michigan Unemployment Agency, in accordance with
the settlement agreement approved by the Regional Di-
rector on January 13, 2005, and make them whole for
any loss of earnings and other benefits suffered since
January 14, 2005, as a result of their unlawful permanent
layoffs, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlaw-
ful permanent layoffs of Tony Hernandez, George Urdia-
les, and Alfred Walters, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful layoffs will not be used against
them in any way.
JOHN POMAVILLE D/B/A JOHN POMAVILLE
PLUMBING