R. J. Stewart Co.

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 51 (N.L.R.B. 1993)

51
312 NLRB No. 11
R. J. STEWART CO.
1 The charge in Case 1–CA–29557 was amended on August 18
and September 11, 1992.
2 The complaints allege that this agreement was entered into Sep-
tember 1, 1992. That is evidently a typographical error. It is unlikely
that the parties would have entered into an agreement that, by its
terms, expired the day before. Moreover, the violations alleged and
admitted are all predicated on an existing agreement, and all com-
menced well before September 1992. We find that the 1991–1992
agreement was entered into about September 1, 1991.
3 See John Deklewa & Sons, 282 NLRB 1375, 1386–1387 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988).
Continued
R. J. Stewart Co., Inc. and Plumbers and Pipefitters
U.A. Local 276, AFL–CIO, a/w United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO. Cases 1–
CA–29557 and 1–CA–29649
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges filed by the Union in Case 1–CA–
29557 July 16, 1992,1 and in Case 1–CA–29649 Au-
gust 18, 1992, the General Counsel of the National
Labor Relations Board issued complaints against R. J.
Stewart Co., Inc., the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act. The Respondent filed an answer, admit-
ting in part and denying in part the allegations of the
complaints. Thereafter, the General Counsel issued a
notice of intent to amend complaints, containing the
proposed amendments. Following the issuance of that
notice, the Respondent, by letter addressed to counsel
for the General Counsel and signed by its president,
William E. Stewart, stated that ‘‘This is an amendment
that I admit all allegations.’’
On June 11, 1993, the General Counsel filed a Mo-
tion for Summary Judgment. On June 17, 1993, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
Ruling on Motion for Summary Judgment
As we have noted, the Respondent has now admitted
all allegations of the two complaints. Because we find
that the acts alleged in the complaints, and admitted by
the Respondent, violate Section 8(a)(5) and (1), 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, a corporation
with an office and place of business in Hanover, Mas-
sachusetts, has been engaged as a plumbing and pipe-
fitting contractor in the building and construction in-
dustry doing commercial construction. During the cal-
endar year ending December 31, 1992, the Respondent,
in conducting its business operations just described,
provided services valued in excess of $50,000 for
Tedeschi Realty Corp., Pizza Hut Corporation, and
Shaw’s Supermarkets, Inc., enterprises in Massachu-
setts that are directly engaged in interstate commerce.
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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees (the unit) constitute an ap-
propriate unit for purposes of collective bargaining
under Section 9(b) of the Act:
All plumbing and pipefitting employees employed
by the Respondent, but excluding all other em-
ployees, guards and supervisors as defined in the
Act.
At all material times, the New England Mechanical
Contractors Association, Incorporated (the Association)
has been an organization composed of various employ-
ers engaged in the construction industry, and that ex-
ists for the purpose, inter alia, of representing its em-
ployer-members in negotiating and administering col-
lective-bargaining agreements with various labor orga-
nizations, including the Union. About September 1,
1991,2 the Association and the Union entered into a
collective-bargaining agreement, effective from Sep-
tember 1, 1991, through August 31, 1992, and subse-
quently entered into a renewal agreement, effective
from September 1, 1992, through August 31, 1993.
About September 5, 1986, the Respondent, an em-
ployer engaged in the building and construction indus-
try, granted recognition to the Union as the exclusive
collective-bargaining representative of employees in
the unit by entering into an ‘‘Assent of Participation,’’
which bound the Respondent to the terms and condi-
tions of the collective-bargaining agreement then in ef-
fect between the Association and the Union and all
successor agreements, including the 1991–1992 and
1992–1993 agreements, without regard to whether the
majority status of the Union has ever been established
under the provisions of Section 9 of the Act. For the
period September 1, 1991, through August 31, 1993,
the Union is the limited exclusive collective-bargaining
representative of employees in the unit.3
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Par. 10 of each complaint states that the Respondent granted rec-
ognition to the Union as the exclusive bargaining agent of unit em-
ployees without regard to whether the majority status of the Union
had ever been established pursuant to Sec. 9 of the Act. We find,
therefore, that an 8(f) relationship has been established between the
Respondent and the Union. However, par. 11 of each complaint al-
leges that the Union is the exclusive representative of the unit em-
ployees based on Sec. 9(a). To the extent the latter allegations can
be read to indicate that the Union has acquired full 9(a) status, they
are inconsistent with each complaint’s par. 10. Moreover, under
Deklewa, an 8(f) signatory union does not attain full 9(a) status sole-
ly on the employer’s adoption of an 8(f) agreement. We therefore
find that the Union is the limited exclusive representative of the unit
employees. See GPH Mechanical, 303 NLRB 510 fn. 1 (1991).
Since about January 16, 1992, the Respondent, with-
out the Union’s consent, has failed and refused (1) to
pay employees the wage rates set forth in the 1991–
1992 and 1992–1993 agreements; (2) to make pay-
ments to the health and welfare, pension, education,
and vacation fringe benefit funds set out in those
agreements; and (3) to remit to the Union dues col-
lected from employees pursuant to the two agreements.
The foregoing terms and conditions of employment are
mandatory subjects of collective bargaining.
Since about July 14, 1992, the Union has requested
the Respondent to provide employees’ names, address-
es, dates of hire, wage rates, and (if applicable) dates
of termination. The information requested is relevant to
and necessary for the Union’s performance of its duties
as the limited exclusive bargaining representative of
employees in the unit. Since about July 14, 1992, the
Respondent has failed and refused to furnish the Union
the requested information.
By failing and refusing to honor the terms of its col-
lective-bargaining agreements with the Union in the
manner described above, and by failing and refusing to
provide relevant and necessary information to the
Union at its request, the Respondent has failed and re-
fused to bargain collectively and in good faith with the
Union as the limited exclusive collective-bargaining
representative of the unit employees within the mean-
ing of Section 8(d) of the Act, in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to abide by the terms and
conditions of its collective-bargaining agreements with
the Union, and by failing and refusing to provide the
Union with relevant and necessary information on re-
quest, 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.
Having found that the Respondent unlawfully failed
to continue in full force and effect the terms and con-
ditions of the 1991–1992 and 1992–1993 agreements,
we shall order it to comply with the terms and condi-
tions of the latter. Specifically, we shall order the Re-
spondent to make the employees whole as follows: for
any losses suffered as a result of the Respondent’s fail-
ure to pay them the contractually required wages, plus
interest; by making the contractually required pay-
ments to the fringe benefit funds on their behalf that
would have been made but for the Respondent’s fail-
ure to adhere to the agreements, with any interest or
other sums applicable to those payments to be com-
puted in accordance with the Board’s decision in
Merryweather Optical Co., 240 NLRB 1213 (1979);
and by reimbursing them, with interest, for any ex-
penses or loss of benefits they may have suffered as
a result of its failure to make the contractually required
fringe benefit contributions, as prescribed in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981). We shall also
order the Respondent to remit to the Union, with inter-
est, the union dues collected from the employees pur-
suant to the agreements. All backpay amounts shall be
computed as prescribed in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), and interest shall be computed as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent unlawfully failed
to furnish the Union the requested information, we
shall order it to provide that information at the Union’s
request.
ORDER
The National Labor Relations Board orders that the
Respondent, R. J. Stewart Co., Inc., Hanover, Massa-
chusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to pay employees the wage
rates contained in its collective-bargaining agreements
with Plumbers and Pipefitters U.A. Local 276, AFL–
CIO, a/w United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO (the Union).
(b) Failing and refusing to make the payments to the
health and welfare, pension, education, and vacation
employee benefit funds called for in its collective-bar-
gaining agreements with the Union.
(c) Failing and refusing to remit to the Union dues
collected from employees pursuant to its collective-
bargaining agreements with the Union.
53R. J. STEWART CO.
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
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) Failing and refusing to furnish the Union with
requested information that is relevant to and necessary
for the Union’s performance of its duties as the limited
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All plumbing and pipefitting employees employed
by the Respondent, but excluding all other em-
ployees, guards and supervisors as defined in the
Act.
(e) 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) Adhere to the terms of the 1992–1993 collective-
bargaining agreement with the Union, until it expires.
(b) Make whole the unit employees and, on their be-
half, the health and welfare, pension, education, and
vacation employee benefit funds, for any losses they
have suffered as a result of the Respondent’s failure
since January 16, 1992, to adhere to the terms of the
1991–1992 and 1992–1993 agreements, in the manner
set forth in the remedy section of this decision.
(c) On request, furnish the Union with information
sought by the Union by letter about July 14, 1992.
(d) Remit to the Union, with interest, all dues col-
lected from employees since January 16, 1992, pursu-
ant to its collective-bargaining agreements with the
Union.
(e) 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, trust fund state-
ments, and all other documents or records necessary to
analyze the amount of backpay, fringe benefit pay-
ments, or union dues due under the terms of this
Order.
(f) Post at its facility in Hanover, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’4
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 upon 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.
(g) 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 and refuse to pay our employees
the wage rates contained in our collective-bargaining
agreements (agreements) with Plumbers and Pipefitters
U.A. Local 276, AFL–CIO, a/w United Association of
Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL–CIO (the Union).
WE WILL NOT fail and refuse to make the payments
to the health and welfare, pension, education, and va-
cation employee benefit funds called for in our agree-
ments with the Union.
WE WILL NOT fail and refuse to remit to the Union
dues collected from our employees pursuant to our
agreements with the Union.
WE WILL NOT fail and refuse to furnish the Union,
on request, information that is relevant to and nec-
essary for the Union’s performance of its duties as the
limited exclusive collective-bargaining representative
of our employees in the following appropriate unit:
All plumbing and pipefitting employees employed
by us, but excluding all other 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 adhere to the terms of our 1992–1993
agreement with the Union, until it expires.
WE WILL make whole, with interest, our unit em-
ployees and, on their behalf, the health and welfare,
pension, education, and vacation employee benefit
funds, for any losses they have suffered because of our
failure since January 16, 1992, to adhere to the terms
of our 1991–1992 and 1992–1993 agreements with the
Union.
WE WILL, on request, furnish the Union the informa-
tion it asked for in its letter of about July 14, 1992.
WE WILL remit to the Union, with interest, dues col-
lected from our employees since January 16, 1992,
pursuant to our agreements with the Union.
R. J. STEWART CO., INC.