S.E. Clemons Inc.

National Labor Relations Board - Board Decisions

Jan 12, 2016

363 NLRB No. 94 (N.L.R.B. 2016)

363 NLRB No. 94
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
S.E. Clemons Inc. and Sheet Metal, Air, Rail, Trans-
portation Workers Local Union 105, AFL–CIO.
Cases 31–CA–127976 and 31–CA–130804
January 12, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint. Upon charges
and amended charges filed by Sheet Metal, Air, Rail,
Transportation Workers Local Union 105, AFL–CIO (the
Union), the General Counsel issued an order consolidat-
ing cases, consolidated complaint, and notice of hearing
(the complaint) on September 30, 2015, against S.E.
Clemons Inc. (the Respondent) alleging that it has violat-
ed Section 8(a)(5) and (1) of the National Labor Rela-
tions Act. The Respondent failed to file an answer.
On November 2, 2015, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on November 5, 2015, 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
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. In addition, the complaint affirmatively stated
that unless an answer was received by October 14, 2015,
the Board may find, pursuant to a motion for default
judgment, that the allegations in the complaint are true.
Further, the undisputed allegations in the General Coun-
sel’s motion disclose that the Region, by letter dated Oc-
tober 15, 2015, advised the Respondent that unless an
answer was received by October 19, 2015, a motion for
default judgment would be filed. Nevertheless, the Re-
spondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Adelan-
to, California (the Respondent’s facility), and has been
engaged in the construction industry providing commer-
cial and residential HVAC (heating, ventilation, and air
conditioning) services and installation.
In conducting its operations during the calendar year
ending December 31, 2013, the Respondent provided
services valued in excess of $50,000 to Pacific Empire
Builders, Inc. (Pacific Empire), an enterprise within the
State of California.
Pacific Empire, a general contractor, is a California
corporation with a principal location in Glendale, Cali-
fornia, and jobsites in the State of California.
During the calendar year ending December 31, 2013,
Pacific Empire, in conducting its operations as a general
contractor, purchased and received at its jobsites located
in California goods valued in excess of $50,000 directly
from points outside the State of California.
We find that Pacific Empire and the Respondent are
employers 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
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act (the
unit):
INCLUDED: All full-time and regular part-time sheet
metal workers, HVAC install service technicians em-
ployed by the Employer at or from its facility of opera-
tion, including, but not limited to, 16276 Koala Road,
Adelanto, California.
EXCLUDED: All other employees, office clerical em-
ployees, estimators, salesmen, professional employees,
guards and supervisors as defined in the Act, as
amended.
On March 17, 2014, the Regional Director for Region
31 of the National Labor Relations Board issued a Certi-
fication of Representative certifying the Union as the
exclusive collective-bargaining representative of the unit.
At all material times since March 17, 2014, based on
Section 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
About March 27, 2014, the Union requested in writing
that the Respondent bargain collectively with the Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
as the exclusive collective-bargaining representative of
the unit for an initial collective-bargaining agreement.
Since about March 27, 2014, the Respondent has failed
and refused to recognize and bargain with the Union.
Since about May 5, 2014, the Union has requested in
writing that the Respondent furnish it with the following
information:
1. Employee handbook;
2. Any and all current Employer policies;
3. Employer rule book;
4. Company cost projections for benefits (401(k),
health insurance, dental, vision, life insurance,
AD&D, education benefits, etc.);
5. Payroll reports (to help calculate man hours
and overtime distribution);
6. Job descriptions for each bargaining unit em-
ployee;
7. List of all current projects (name of project
and project addresses); and
8. List of all current employees (names and ad-
dresses).
The information requested by the Union, as described
above, is necessary for and relevant to the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about May 5, 2014, the Respondent has failed
and refused to furnish the Union with the above infor-
mation requested by it.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The unfair labor practices of the Re-
spondent described above 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)(5) and
(1) of the Act, we shall order the Respondent, on request,
to bargain with the Union as the exclusive collective-
bargaining representative of unit employees and, if an
agreement is reached, to embody the understanding in a
signed agreement. We shall also order the Respondent to
provide the Union the information requested since about
May 5, 2014.
To ensure that the employees are accorded the services
of their selected bargaining representative for the period
provided by law, we shall construe the initial period of
the certification as beginning the date when the Re-
spondent begins to bargain in good faith with the Union.
Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord
Burnett Construction Co., 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817 (1964).1
ORDER
The National Labor Relations Board orders that the
Respondent, S.E. Clemons Inc., Adelanto, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Sheet Metal, Air, Rail, Transportation Workers Local
Union 105, AFL–CIO as the exclusive collective-
bargaining representative of employees in the bargaining
unit.
(b) Failing and refusing to provide the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the exclusive
collective-bargaining representative of the unit.
(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.

1 In the complaint, the General Counsel requests that the notice be
posted in both English and Spanish. Because the complaint alleges that
some of the employees have limited English proficiency and are Span-
ish speakers, we grant this request.
The complaint further requests that the Respondent’s president be
required to read the Board’s remedial notice to assembled employees
during paid working hours, or alternatively that a Board agent read the
notice to employees during worktime in the presence of the president.
We deny this request because the General Counsel has not demonstrat-
ed that the Board’s traditional remedies are insufficient to remedy the
effects of the Respondent’s unfair labor practices. Fallbrook Hospital
Corporation d/b/a Fallbrook Hospital, 360 NLRB No. 73, slip op. at 1
fn. 3 (2014), enfd. 785 F.3d 729 (D.C. Cir. 2015); Bruce Packing Co.,
357 NLRB No. 93, slip op. at 7 fn. 4 (2011), enfd. in part 795 F.3d 18
(D.C. Cir. 2015); First Legal Support Services, LLC, 342 NLRB 350,
350 fn. 6 (2004).
Finally, the complaint requests that the Respondent be required to
mail a notice to each unit employee who has worked for the Respond-
ent at any time since the date of the refusal to bargain. In the absence
of any explanation why the notice mailing remedy is warranted here,
we deny the General Counsel’s request. See On Target Security, Inc.,
362 NLRB No. 31, slip op. at 2 (2015).
S.E. CLEMONS INC. 3
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
INCLUDED: All full-time and regular part-time sheet
metal workers, HVAC install service technicians em-
ployed by the Employer at or from its facility of opera-
tion, including, but not limited to, 16276 Koala Road,
Adelanto, California.
EXCLUDED: All other employees, office clerical em-
ployees, estimators, salesmen, professional employees,
guards and supervisors as defined in the Act, as
amended.
(b) Furnish to the Union in a timely manner the in-
formation it requested since about May 5, 2014.
(c) Within 14 days after service by the Region, post at
its facility in Adelanto, California, copies of the attached
notice marked “Appendix” in both English and Spanish.2
Copies of the notice, in English and Spanish, on forms
provided by the Regional Director for Region 31, after
being signed by the Respondent’s authorized representa-
tive, 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since March 27, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the

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 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.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. January 12, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) 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
violated 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 fail and refuse to recognize and bargain with
Sheet Metal, Air, Rail, Transportation Workers Local Union
105, AFL–CIO as the exclusive collective-bargaining repre-
sentative of our employees in the bargaining unit.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
standing is reached, embody the understanding in a
signed agreement:
INCLUDED: All full-time and regular part-time sheet
metal workers, HVAC install service technicians em-
ployed by us at or from our facility of operation, in-
cluding, but not limited to, 16276 Koala Road, Adelan-
to, California.
EXCLUDED: All other employees, office clerical em-
ployees, estimators, salesmen, professional employees,
guards and supervisors as defined in the Act, as
amended.
WE WILL furnish to the Union in a timely manner the
information requested by the Union since May 5, 2014.
S.E. CLEMONS INC.
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-127976 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.