L.L. Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 1034 (N.L.R.B. 1992)

1034
306 NLRB No. 209
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In Member Oviatt’s view there may be limited circumstances, not
present here, in which an employer’s inability to make contractually
required payments to union benefit funds may be a defense to an
allegation that it unilaterally and unlawfully withheld the payments.
See his dissent in Zimmerman Painting & Decorating, 302 NLRB
856 (1991).
L. L. Plumbing & Heating Co., Inc. and U.A. Dis-
trict Council No. 12 on Behalf of Plumbers
Locals 86, 209 and 299 and the U.A. District
Council No. 12 Plumbers Welfare Fund, U.A.
District Council No. 12 Plumbers Pension
Fund, U.A. District Council No. 12 Plumbers
Annuity Fund, U.A. District Council No. 12
Plumbers Vacation and Holiday Fund, and
U.A. District Council No. 12 Plumbers Edu-
cation Fund. Case 2–CA–24476
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by U.A. District Council No.
12, the Union, on July 10, 1990, the General Counsel
of the National Labor Relations Board issued a com-
plaint June 27, 1991, against L. L. Plumbing & Heat-
ing Co., Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act. On August 13, 1991, the Respondent filed
a letter from Riccardo Tedesco, the Respondent’s
president, in answer to the complaint.
On November 12, 1991, the General Counsel filed
a Motion for Summary Judgment. On November 18,
1991, 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
In its letter in response to the complaint, the Re-
spondent admits that it has failed to make certain con-
tractually required contributions to the union funds.
However, the letter failed to specifically admit, deny,
or explain the allegations in the complaint as required
by Section 102.20 of the Board’s Rules and Regula-
tions and does not therefore constitute a valid answer.
Despite being advised repeatedly in writing and by
phone calls by counsel for the General Counsel that its
letter was insufficient to constitute an answer, the Re-
spondent failed to file an answer. Thus, by failing to
file a sufficient answer, all the allegations contained in
the complaint are deemed to be true. View Heights
Convalescent Hospital, 255 NLRB 76 (1981).
Assuming for argument’s sake that the Respondent’s
August 13, 1991 letter is sufficient to serve as an an-
swer to the complaint, the Respondent admits that it
owes the moneys alleged in the complaint, but asserts
that it has been financially unable to make the con-
tributions to the union funds. It is well established,
however, that financial inability to pay is not an ade-
quate defense to an ongoing failure to make contrac-
tually required fund payments. See Air Convey Indus-
tries, 292 NLRB 25 (1988).1 The Respondent’s claim,
therefore, is without merit and provides no defense to
its admitted actions.
Accordingly, in the absence of good cause being
shown, 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 New York corporation with an
office and place of business in Thornwood, New York,
is engaged as a plumbing and heating contractor in the
building and construction industry. In the course and
conduct of its business operations, the Respondent an-
nually purchases and receives at its Thornwood facility
products, goods, and materials valued in excess of
$50,000 directly from other enterprises located within
the State of New York, each of which other enterprises
had received the said products, goods, and materials
directly from points outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All journeymen plumbers and apprentices em-
ployed by Respondent, but excluding office cler-
ical employees, guards and supervisors as defined
in the Act.
At all material times here, the Union has been the
designated exclusive collective-bargaining representa-
tive of the unit and the Union has been recognized as
that representative by the Respondent. Recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which is effective by
its terms for the period July 1, 1989, to June 30, 1992.
The Union, by virtue of Section 8(f) of the Act, has
been, and is, the limited exclusive representative of the
unit for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
1035L. L. PLUMBING CO.
The most recent collective-bargaining agreement re-
quires the Respondent to make contributions to the
Union’s Welfare Fund, Pension Fund, Annuity Fund,
Vacation and Holiday Fund, and Education Fund, due
and payable no later than 10 days after the last day of
the month during which the wages of employees em-
ployed in the unit have been paid. The most recent
collective-bargaining agreement also requires the Re-
spondent to furnish monthly reports regarding its obli-
gations to the Funds. The subjects set forth above re-
late to wages, hours, and other terms and conditions of
employment of the unit and are mandatory subjects of
bargaining. Since January 13, 1990, the Respondent
has failed and refused to make payments to the Funds
in a timely manner and has failed and refused to sub-
mit, or has submitted in an untimely manner, the
monthly reports to the Funds. For the months from
May 1990 to October 1990, the Respondent failed to
make any contributions to the Funds as required under
the current collective-bargaining agreement. By engag-
ing in the conduct described above without the consent
of the Union, the Respondent has unilaterally modified
the terms of the collective-bargaining agreement. By
these acts and conduct, the Respondent has failed and
refused to bargain collectively with the representative
of its employees, and thereby has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
CONCLUSION OF LAW
By refusing to bargain with U.A. District Council
No. 12, on behalf of Plumbers Locals 86, 209, and
299, by failing and refusing to make contractually re-
quired contributions to the union funds or by making
contributions in an untimely manner, and by failing
and refusing to furnish contractually required reports or
by furnishing them in an untimely manner, without the
Union’s consent, the Respondent has engaged in unfair
labor practices affecting 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.
We shall order the Respondent to make timely con-
tributions to the union funds and to submit the re-
quired reports to the union funds in a timely fashion.
We shall also order the Respondent to furnish the con-
tractually required reports to the union funds that it
failed to furnish in the past and to make whole its unit
employees by making all contributions to the union
funds that have not been paid and that would have
been paid in the absence of the Respondent’s unlawful
discontinuance of the payments, with any other sums
applicable to the payments to be computed in accord-
ance with Merryweather Optical Co., 240 NLRB 1213
(1979). We shall also order the Respondent to make
the unit employees whole for any losses they may have
suffered as a result of its failure to make the contrac-
tually required fund contributions, Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, L. L. Plumbing & Heating Co., Inc.,
Thornwood, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with U.A. District Council
No. 12, on behalf of Plumbers Locals 86, 209, and
299, as the limited exclusive bargaining representative
of the employees in the bargaining unit.
(b) Failing and refusing to adhere to the terms of the
collective-bargaining agreement with the Union by
failing and refusing to make contractually required
contributions to the union funds or by making such
contributions in an untimely manner, and by failing
and refusing to furnish contractually required reports to
the union funds or by furnishing them in an untimely
manner, without the Union’s consent. The unit is:
All journeymen plumbers and apprentices em-
ployed by Respondent, but excluding office cler-
ical employees, guards and supervisors as defined
in the Act.
(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) Furnish the contractually required reports to the
union funds.
(b) Make whole its unit employees by making the
contractually required contributions to the union funds
that have not been paid and that would have been paid
absent the Respondent’s unlawful discontinuance of
payments, and by reimbursing unit employees for any
expenses ensuing from the Respondent’s failure to
make such required contributions, in the manner set
forth 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 amounts due under
the terms of this Order.
1036 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.’’
(d) Post at its facility in Thornwood, New York, the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 refuse to bargain with U.A. District
Council No. 12, on behalf of Plumbers Locals 86, 209,
and 299, as the limited exclusive representative of the
employees in the bargaining unit.
WE WILL NOT fail and refuse to adhere to the terms
of our collective-bargaining agreement with the Union
by failing and refusing to make contractually required
contributions to the union funds or by making such
contributions in an untimely manner, and by failing
and refusing to furnish contractually required reports to
the union funds or by furnishing them in an untimely
manner, without the Union’s consent. The unit is:
All journeymen plumbers and apprentices em-
ployed by Respondent, but excluding office cler-
ical employees, guards and supervisors as defined
in the Act.
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 furnish the contractually required reports
to the union funds.
WE WILL make whole our unit employees by mak-
ing all contractually required contributions that have
not been paid and that would have been paid absent
our unlawful discontinuance of payments, and by reim-
bursing our unit employees for any expenses ensuing
from our failure to make such required contributions.
L. L. PLUMBING & HEATING CO., INC.