Lo-Pri Plumbing & Heating, Inc.

National Labor Relations Board - Board Decisions

May 21, 1987

283 N.L.R.B. 1076 (N.L.R.B. 1987)

1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lo-Pri Plumbing & Heating, Inc. and Plumbers
Local Union No. 5, United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the U .S.' and Canada,
AF1:,CIO. Case 5=CA-8242
21 May 1987,
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
Upon a charge filed by the Union, Plumbers
Local Union No, 5, United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the U.S. and Canada, AFL-CIO,
29 July_ 1986, the, General Counsel of the National
Labor Relations Board issued a complaint 4 No-
vember 1986 against the Company, the Respond-
ent, alleging that it has violated Section 8(a)(5) and
(1) -of the National Labor Relations Act. The Com-
pany was properly served copies of the charge and
complaint. The Company then filed an answer, but
by letter dated 10 February 1987, withdrew it.
On 24 February 1987 the General Counsel filed a
Motion for, Summary Judgment. On 4 March 1987
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 Company
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board 's Rules and Regula-
tions 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. The complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board."'
The Company withdrew its answer to the com-
plaint and notices of hearing. The Company has
not filed a request for extension of time to file a
new answer.
In the absence of good cause being shown for
the failure to file a timely answer, or a request for
extension of time, we grant the General Counsel's
Motion for Summary Judgment.
' Sec. 102 20 of the Board's Rules was amended 29 September 1986 to
provide for 14 days to file an answer The complaint erroneously stated
that the Company had 10 days to file an answer This error, however,
does not affect the results of this decision
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company is engaged in the business of in-
stalling and, repairing plumbing and heating systems
at its facility in Tuxedo, Maryland, where it pur-
chased and received goods and materials valued in
excess of $50,000 directly from points outside the
State of Maryland. We find that the Company is an
employer engaged in commerce within the mean-
ing of Section 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
Since at least 1966, the Union has been the exclu-
sive collective-bargaining representative of the em-
ployees in the following appropriate unit:,
All journeymen plumbers and their, apprentices
employed by Respondent excluding all other
employees, guards and supervisors as defined
in the Act.
Since at , least 1966, the Union and the Company
have been parties to successive collective-bargain-
ing agreements , and the Union continues to be the
exclusive representative under Section 9(a) of the
Act. The most recent agreement is effective by its
terms for the period 1 September 1985 through 31
August 1987.
Since about 15 February 1986, the Respondent
changed the terms and conditions of employment
for its employees in the unit by failing to make
contributions into the pension fund, medical fund,
apprentice fund, industry fund, and vacation fund,
doing so without prior notice to the Union and
without having afforded the Union an opportunity
to negotiate and bargain with it as the exclusive
representative of the unit employees with respect
to such changes. In addition, since about 24 June
1986, the Respondent has refused to abide by the
terms of the collective-bargaining agreement. We
find that the Respondent, by such acts and con-
duct, except for its failure to make contributions
into the industry fund,2 has refused to bargain in
violation of Section 8(a)(5) and (1) of the Act.
8 As industry promotion funds are permissive, nonmandatory subjects
of bargaining, it is not an unfair labor practice for an employer to refuse
to bargain over them See Finger Lakes Plumbing Co., 254 NLRB 1399
(1981)
283 NLRB No. 155
LO-PRI PLUMBING
CONCLUSIONS OF LAW
By failing and,refusing to abide by the terms and
conditions of the collective-bargaining agreement
and by failing to make contributions to the pension
fund, medical fund, apprentice fund, and vacation
fund, the Company has failed and refused to bar-
gain in good faith with the Union and 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, to bargain on request with the
Union, and to take certain affirmative action de-
signed to effectuate the policies of the Act. We
shall order, the Respondent to transmit the required
contributions to the pension fund, medical fund, ap-
prentice fund, and vacation fund; any interest appli-
cable to such payments should be made in accord-
ance with the criteria set forth in Merryweather Op-
tical Co., 240 NLRB 1213 (1979). The _ Respondent
shall also be ordered to make whole its unit em-
ployees for any loss of earnings and other benefits
resulting from its failure to abide by the terms and
conditions of the collective-bargaining agreement
as prescribed in Ogle Protection Service, 183 NLRB
682 (1970), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Lo-Pri Plumbing & Heating, Inc.,
Tuxedo, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to abide by the collec-
tive-bargaining agreement effective 1 September
1985 through 31 August 1987 executed with the
Union as the exclusive representative of the em-
ployees in the following unit:
All journeymen plumbers and their apprentices
employed by the Employer excluding all other
employees, guards and supervisors as defined
in the Act.
(b) Failing and refusing to make contributions
into the pension fund, medical fund, apprentice
fund, and vacation fund, as required by the collec-
tive-bargaining agreement between it and the
Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
1077
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Abide by the terms and conditions of the I
September 1985 through 31 August 1987 collec-
tive-bargaining agreement between it and the
Union and make whole its unit employees for any
loss of earnings and other benefits resulting from its
failure to abide by the agreement in the manner set
forth in the remedy section of this Decision and
Order.
(b) Remit to the pension fund, medical fund, ap-
prentice fund, and vacation fund past and currently
due' contributions pursuant to the collective-bar-
gaining agreement between it 'and the Union, in the
manner set forth in the remedy section of this De-
cision and Order.
(c) Post at its facility in Tuxedo, Maryland,
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region - 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional , Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.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 Nation-
al 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."
4 The General Counsel in the complaint has requested a vistatortal
clause In the circumstances of this case, such a clause is unwarranted
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 ordered us to post and abide by this notice.
WE WILL NOT fail or refuse to abide by the
terms and conditions of the collective -bargaining
agreement with the Plumbers Local Union No. 5,
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
U.S. and Canada , AFL-CIO, the Union, as the ex-
clusive collective-bargaining representative for the
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees in the following appropriate bargaining
unit:
All journeymen plumbers and their apprentices
employed by Respondent excluding all other
employees, guards and supervisors as defined
in the'Act.
WE WILL NOT fail or refuse to make contribu-
tions to the pension fund , medical fund , apprentice
fund, and vacation fund pursuant to the collective-
bargaining agreement between ourselves and the"
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL abide by the terms and conditions of
the collective-bargaining agreement and make our
unit employees whole for any loss of earnings and
other benefits suffered as a result of our failure to
abide by the terms and conditions of the collective-
bargaining agreement between ourselves and the
Union, plus interest.
WE WILL remit to the pension fund, medical
fund, apprentice fund, and vacation fund past and
currently due contributions pursuant to the collec-
tive-bargaining agreement between ourselves and
the Union.
Lo-PRI PLUMBING & HEATING, INC.