Kenney Contractors

National Labor Relations Board - Board Decisions

Apr 30, 1999

328 N.L.R.B. 331 (N.L.R.B. 1999)

KENNEY CONTRACTORS, INC. 331
Kenney Contractors, Inc. and Plumbers and Pipefit-
ters Local Union No. 190 of the United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO. Case 7–CA–
41571
April 30, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
Upon a charge filed by the Union on November 30,
1998, the General Counsel of the National Labor Rela-
tions Board issued a complaint on January 27, 1999,
against Kenney Contractors, Inc., the Respondent, alleg-
ing that it has violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act. Although properly served
copies of the charge and complaint, the Respondent
failed to file an answer.
On February 22, 1999, the General Counsel filed a
Motion for Summary Judgment with the Board. On Feb-
ruary 24, 1999, the Board issued 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.
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.
Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the Respondent filed
with the Region a letter dated February 10, 1999, which
states in full as follows:

We are responding to your formal complaint issued by
the National Labor Relations Board against Kenney
Contractors, Inc. We are not in any position to resolve
this matter at this time. We are examining our options.
We are not prepared to make any settlement at this
time. We will make some resolution between now and
March 18, 1999.

The Motion for Summary Judgment also states without
contradiction that the Region, by letter dated February
12, 1999, advised the Respondent that its February 10
letter was inadequate to constitute an answer to the com-
plaint, and further advised that, inasmuch as the Respon-
dent’s answer was overdue, unless a proper answer were
received by February 17, 1999, a Motion for Summary
Judgment would be filed.
We find that the Respondent’s February 10, 1999 letter
to the Region does not purport to be an answer to the
complaint. As shown above, the Respondent’s letter
merely states that the Respondent “is not prepared to
resolve this matter at this time” and that the Respondent
was examining its “options.” Further, this letter does not
constitute a proper answer to the complaint allegations
under Section 102.20 of the Board’s Rules and Regula-
tions because it fails to address any of the factual or legal
allegations of the complaint, and therefore is legally in-
sufficient under the Board’s rules. See American Gem
Sprinkler Co., 316 NLRB 102, 103 (1995).1
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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Dry Ridge, Ken-
tucky, has been engaged in business as a heating and air
conditioning contractor at jobsites in the State of Colo-
rado and the State of Michigan. The Huron Ridge/-
Heights apartment complex construction site, located in
Ypsilanti Township, Michigan, where at all material
times the Respondent has been engaged in the installa-
tion of hearing and air-conditioning units, is the only
jobsite involved in this proceeding. During the 12-month
period ending December 31, 1998, the Respondent, in
conducting its business operations described above, had
gross revenues in excess of $500,000 for the perform-
ance of services to customers located outside the State of
Kentucky. 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
All employees employed by employers who have au-
thorized the Plumbing and Mechanical Contractors As-
sociation of Washtenaw County, Inc. (Association) to
bargain for them, who perform work as described in arti-
cle I, paragraph A of the current collective-bargaining
agreement between the Association and the Charging
Party Union, constitute a unit appropriate for the pur-

1 Members Hurtgen and Brame note that the Respondent is pro se,
and this may explain the technical failure of its February 10 response to
the complaint. However, after the General Counsel apprised the Re-
spondent of the inadequacy of its response, and told the Respondent of
a new due date of February 17, the Respondent failed to respond at all.
In these circumstances, Members Hurtgen and Brame grant summary
judgment.
328 NLRB No. 43
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
On or about July 28, 1998, the Respondent entered into
a Memorandum of Agreement with the Union whereby it
agreed to be bound by all terms and conditions of the
collective-bargaining agreement between the Union and
the Association, which by its terms is effective from June
1, 1997, to May 31, 2000, and agreed to be bound to such
future agreements unless timely notice was given.
The Respondent, an employer engaged in the building
and construction industry as described above, granted
recognition to the Union as the limited exclusive collec-
tive-bargaining representative of its employees employed
in the unit by entering into the Memorandum of Agree-
ment referred to above without regard to whether the
majority status of the Union had ever been established
under the provisions of Section 9(a) of the Act.
At all times since July 28, 1998, based on Section 9(a)
of the Act, the Union has been the limited exclusive col-
lective-bargaining representative of the unit.
Since about late July 1998, and continuing to date,
while the Respondent performed heating and air-
conditioning work for Sycamore Construction Ltd. at the
Huron Ridge/Heights jobsite, the Respondent, by its
agents Laurel P. Kenney and E. Scott Robinson, repudi-
ated its collective-bargaining relationship with the Union
and refused to implement any of the provisions of the
current collective-bargaining agreement in effect be-
tween the Association and the Union, including failing to
make contractually required fringe benefit contributions
for employees. These subjects relate to wages, hours,
and other terms and conditions of employment of the unit
employees and are mandatory subjects for the purposes
of collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the limited exclusive bargaining repre-
sentative of its employees, and has thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and 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 has violated Section 8(a)(1)
and (5) of the Act, we shall order the Respondent to rec-
ognize and bargain with the Union as the limited exclu-
sive bargaining representative of the unit employees, to
comply with the 1997–2000 collective-bargaining
agreement with the Union, and to make whole the unit
employees for any loss of wages or earnings they may
have suffered as a result of the Respondent’s failure to do
so since about July 28, 1998, in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 52 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, we shall order the Respondent to make all
contractually required delinquent contributions owed to
the various contractual fringe benefit funds, and to reim-
burse the Union and/or benefit funds for its failure to do
so since about July 28, 1998, including any additional
amounts due on behalf of the unit employees in accor-
dance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979), and by reimbursing them for any ex-
penses ensuing from its failure to make the required con-
tributions, 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, supra, with interest as
prescribed in New Horizons for the Retarded, supra.2
ORDER
The National Labor Relations Board orders that the
Respondent, Kenney Contractors, Inc., Dry Ridge, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Plumbers and Pipefitters Local Union No. 190 of the
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO as the limited exclusive
bargaining representative of the employees in the follow-
ing unit:

All employees employed by employers who have au-
thorized the Plumbing and Mechanical Contractors As-
sociation of Washtenaw County, Inc. to bargain for
them, who perform work as described in Article I,
Paragraph A of the current collective-bargaining
agreement between the Association and Plumbers and
Pipefitters Local Union No. 190 of the United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Can-
ada, AFL–CIO.

(b) Failing and refusing to comply with the 1997—
2000 collective-bargaining agreement between the Asso-
ciation and the Union, including failing to make contrac-
tually required fringe benefit contributions for unit em-
ployees.
(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 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
KENNEY CONTRACTORS, INC. 333
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the limited exclusive bargaining representative of the
employees in the unit set forth above, and comply with
the terms and conditions of the 1997–2000 collective-
bargaining agreement between the Association and the
Union, including, but not limited to, making the contrac-
tually required fringe benefit contributions for unit em-
ployees.
(b) Make whole the unit employees for any loss of
wages or earnings they may have suffered as a result of
its unlawful conduct and by making the required contri-
butions that have not been made since about July 28,
1998, and by reimbursing them for any expenses ensuing
from its failure to make the required contributions, as set
forth in the remedy section of this decision.
(c) Make all contractually required contributions and
reimburse the Union and/or benefit funds for its failure to
do so since about July 28, 1998, as set forth in the rem-
edy section of this decision.
(d) 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 re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Dry Ridge, Kentucky, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
7, 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
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 July 28,
1998.
(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.

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 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.”
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 fail and refuse to recognize and bargain
with Plumbers and Pipefitters Local Union No. 190 of
the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO as the limited exclusive
bargaining representative of the employees in the follow-
ing unit:

All employees employed by employers who have au-
thorized the Plumbing and Mechanical Contractors As-
sociation of Washtenaw County, Inc. to bargain for
them, who perform work as described in Article I,
Paragraph A of the current collective-bargaining
agreement between the Association and Plumbers and
Pipefitters Local Union No. 190 of the United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Can-
ada, AFL–CIO.

WE WILL NOT fail and refuse to comply with the 1997–
2000 collective-bargaining agreement between the Asso-
ciation and the Union, including failing to make contrac-
tually required fringe benefit contributions for unit em-
ployees.
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 recognize and, on request, bargain with the
Union as the limited exclusive bargaining representative
of the employees in the unit set forth above, and WE WILL
comply with the terms and conditions of the 1997–2000
collective-bargaining agreement between the Association
and the Union, including, but not limited to, making the
contractually required fringe benefit contributions for
unit employees.
WE WILL make whole the unit employees for any loss
of wages or earnings they may have suffered as a result
of our unlawful conduct and by making the required con-
tributions that have not been made since about July 28,
1998, and by reimbursing them for any expenses ensuing
from our failure to make the required contributions, with
interest.
WE WILL make all contractually required contributions
and reimburse the Union and/or benefit funds for our
failure to do so since about July 28, 1998, with interest.

KENNEY CONTRACTORS, INC.