Standard Plumbing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 444 (N.L.R.B. 1970)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Standard Plumbing and Heating Company , Inc., and
Sam F. Messina d/b/a Standard Plumbing Compa-
ny and Plumbers and Steamfitters Local Union
No. 141 a/w United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-
CIO. Cases 15-CA-3058 and 15-CA-3202
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On April 26, 1968, Trial Examiner John F. Funke
issued his Decision in the above-entitled consolidated
proceeding finding that Respondent Standard Plumb-
ing and Heating Company, Inc., herein called
Respondent Standard, had engaged in and was engag-
ing in certain unfair labor practices, and recommend-
ing that it cease and desist therefrom and take certain
affirmative action as set forth in the attached Trial
Examiner's Decision. He also found that Respondent
Sam F. Messina d/b/a Standard Plumbing Company,
herein called Respondent Messina, had not engaged
in any unfair labor practices and recommended that
the complaint be dismissed as to them. However,
the Trial Examiner found that Respondent Messina,
as a successor to Respondent Standard, was obligated
to remedy the unfair labor practices of its predecessor,
only from a date starting 10 days after the Trial
Examiner's Decision. The Trial Examiner further
found that the two Respondents did not engage in
certain other unfair labor practices and recommended
that the complaint be dismissed as to them. Thereafter,
the Respondents and the General Counsel filed excep-
tions to the Trial Examiner's Decision, and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire record
in these cases and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner,
with the following additions and modifications.
1. The Trial Examiner found that Respondent
Standard, as a member of a multiemployer bargaining
association, was engaged in commerce within the
meaning of the Act, inferring that the total dollar
figure of the Association would exceed the Board's
retail jurisdictional standard, but he did not determine
whether Respondent Standard was a retail or nonretail
enterprise. The General Counsel argues that Respond-
ent Standard was at all times material herein engaged
in both retail and nonretail operations and that the
Board's policy for asserting jurisdiction in such a
case is to apply its nonretail standard unless the
nonretail aspect of the business is de minimis. As
Respondent Messina continued operations similar to
his predecessor, the General Counsel claims the nonre-
tail standard applies to him also. We find merit
in the General Counsel's exceptions.
The evidence shows that Respondent Standard
engaged in plumbing repairs, remodeling, Roto-Rooter
Sewer Service, and plumbing installation in houses
under construction. Dominic Messina, president of
Respondent Standard, testified that approximately 95
to 98 percent of the business was repair work, leaving
approximately 3 to 5 percent of the business in the
nature of plumbing installation in homes under con-
struction. As argued by the General Counsel, it is
the Board's policy to apply its nonretail operations
where the nonretail operations exceed de minimis.'
We find that the nonretail sales, which totaled between
$9,000 and $16,360, exceeded de minimis, and the
nonretail standard is applicable. In view of the testimo-
ny of Sam F. Messina, who stated that he is engaged
in the same business as the predecessor, Respondent
Standard, we find it is proper to apply our nonretail
standard to Respondent Messina as well. Since both
Respondents purchased (or projected figures predict
they will purchase) materials valued in excess of
$50,000 from firms which in turn purchased such
materials directly from places outside the State of
Louisiana, we find they are engaged in commerce
within the meaning of the Act and that it will effectu-
ate the purposes of the Act to assert jurisdiction
over both Respondents herein.
2. The Trial Examiner found, and we agree, that
Respondent Standard violated Section 8(a)(5) and
(1) of the Act by failing and refusing to give full
force and effect to the collective-bargaining contract
between the Association and the Union, and by unilat-
erally changing the terms and conditions of employ-
ment of its employees. We further agree with the
Trial Examiner, on the basis of the record testimony,
that Respondent Standard's offer to pay the fines
of employees who might be fined by the Union did
' Cemetery Service Corporation (Park view and Springdale Cemeteries),
149 NLRB 604, and cases cited therein at fn 5
185 NLRB No. 63
STANDARD PLUMBING & HEATING CO., INC
not violate ' Section 8(a)(1) in the circumstances of
this case.'
3. The Trial Examiner concluded that Respondent
Messina did not violate Section 8(a)(5) and (1) of
the Act since no request for bargaining was ever
made on Respondent Messina. However , the Trial
Examiner did find that Respondent Messina, a bona
fide purchaser of Respondent Standard ' s business,
was obligated to remedy the unfair labor practices
of Respondent Standard . Since the Trial Examiner
found no unfair labor practices against Respondent
Messina , he recommended that Respondent Messina
only be obligated to remedy the unfair labor practices
of Respondent Standard from a time after issuance
of his Trial Examiner ' s Decision . The General Counsel
excepted to the Trial Examiner 's failure to find that
Respondent Messina violated Section 8(a)(5) and (1)
by refusing to agree to and accept the contract execut-
ed on April 1, 1967 , by the Association and the
Union . Since Respondent Standard was a member
of this multiemployer bargaining group , had been
a member for 20 years, and had negotiated many
of the Association 's contracts , its withdrawal from
the Association after negotiations had been initiated
with the Union , absent unusual circumstances not
present or alleged herein , was untimely and its failure
to honor or abide by the collective -bargaining agree-
ment resulting from such negotiations was unlawful.
After Respondent Standard continued to refuse to
agree to the terms of the contract , the Union picketed
Respondent Standard 's premises . A month after the
picketing began and with full knowledge of the picket-
ing, Respondent Messina purchased and took over
the business of Respondent Standard , as more fully
described in the Trial Examiner 's Decision. When
Respondent Standard informed its employees it was
going out of business , Respondent Messina also spoke
to the employees and hired most of Standard's employ-
ees. Without any hiatus , Respondent Messina contin-
ued the business formerly operated by Respondent
Standard.
Sam Messina , the purchaser of Respondent Stand-
ard, is the nephew of Dominic Messina and son
of Frank Messina, the two partners operating
Respondent Standard , and had also been an employee
of Respondent Standard . He was clearly aware of
' Member Brown would find that Respondent Standard violated Sec
8(a)(1) by these offers See Leeds & Northup Company, 155 NLRB
1292, 1294, Barney Wilkerson Construction Co, 145 NLRB 704, 716
' The General Counsel excepted to the Trial Examiner's failure to
find that three named employees are unfair labor practice sinkers There
is no showing that the three either joined or participated in the strike
against Respondent Standard As any other separation from employment
was neither alleged nor argued as being a violation of the Act, we
will not disturb the Trial Examiner's Conclusions that the three were
not unfair labor practice strikers
445
the picketing and the reasons therefor at the time
he purchased the business of Respondent Standard.
Thereafter, without any hiatus in the continuity of
the employing enterprise, Respondent Messina contin-
ued the same business as Respondent Standard, but
did not abide by the terms of the Association contract
his predecessor was bound to honor. Respondent
Messina admitted he was aware of the reasons for
the picketing and therefore can be charged with knowl-
edge of his predecessor's unfair labor practices, even
though he may not have had knowledge that formal
charges were filed. Under such circumstances, we
find that Respondent Messina, as a successor employ-
er, as well as Respondent Standard, violated Section
8(a)(5) and (1) by failing to agree to and abide
by the terms of the contract executed April 1, 1967,
and expiring March 31, 1969, between the Association
and the Union.'
In fashioning a remedy for Respondent Messina's
violation of Section 8(a)(5) and (1) of the Act, we
shall not limit, as did the Trial Examiner, Respondent
Messina's obligation from a date starting after receipt
of the Trial Examiner's Decision.' Respondent Messi-
na violated the Act from the moment he failed to
abide by the terms and conditions of the Association
contract.' Therefore, we shall order Respondent Messi-
na to make whole his employees in the appropriate
unit for any loss of benefits, including loss of wages,
they may have suffered from his failure to abide
by the terms of the contract, and to give full force
and effect to the terms of the contract from May
29, 1967, to March 31, 1969.' Although no request
to bargain has been made on Respondent Messina,
his obligation to bargain did not cease with the expira-
tion of the contract. Accordingly, we shall also order
Respondent Messina to bargain collectively, upon
request, with the Union as the representative of his
employees in the appropriate unit, and if an under-
standing is reached, to embody such understanding
in a signed agreement.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4:
"By failing and refusing to give full force and
effect to the collective-bargaining contract between
the Union and the multiemployer Association of which
" William J. Burns International Detective Agency, 182 NLRB No.
50, Hackney Iron and Steel Co 182 N LR B No 53
' See, Perma Vinyl Corporation , Dade Plastics Co and United States
Pipe and Foundry Company, 164 NLRB 968
6 William J. Burns International Detective Agency, supra
' F. W Woolworth , 90 NLRB 289, Isis Plumbing and Heating Co.,
138 NLRB. 716
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his predecessor was a member , Respondent Messina
violated Section 8(a)(5) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, as herein modified,
and hereby orders that the Respondent, Standard
Plumbing and Heating Company, Inc., Shreveport,
Louisiana, its officers, agents, successors, and assigns,
and the Respondent, Sam F. Messina d/b/a Standard
Plumbing Company, Shreveport, Louisiana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as modified below.
The Recommended Order as to Respondent Sam
Messina d/b/a Standard Plumbing Company will be
modified by the following:
1. Delete from paragraph 1 the words "Within
10 days from receipt of this Decision" and substitute
therefor "Cease and desist from failing and refusing
to... "
2. Redesignate paragraphs 2, 3, and 4 as paragraphs
4, 5, and 6, respectively, and insert as new paragraph
2 the following: "2. Make whole its journeymen
plumbers and apprentices for any loss of benefits,
including loss of wages, they may have suffered from
its failure to give full force and effect to the terms
and conditions of the collective-bargaining agreement
set forth above."
3. Insert as new paragraph 3, the following: "3.
Bargain, upon request, with the Plumbing and Steam-
fitters Local Union 141 and, if an understanding
is reached, embody such understanding in a signed
agreement."
4. Delete from the Notice marked "Appendix B"
the words "within 10 days from the date I received
a copy of the Trial Examiner's Decision in Case
No. 3202."
5. Add as additional paragraph to the notice marked
"Appendix B" the following:
I WILL make whole my journeymen plumbers
and apprentices for any loss of benefits, including
loss of wages, they may have lost because of
my failure to give full force and effect to the
above-mentioned contract. This will apply to all
journeymen plumbers and apprentices employed
by me from May 29, 1967, to the date of the
expiration of said contract.
I WILL bargain, upon request, with the Plumb-
ing and Steamfitters Local Union 141, and, if
an understanding is reached, I will embody such
understanding in a signed agreement.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F FUNKE, Trial Examiner. Upon a charge filed
in Case 15-CA-3058 on April 19, 1967, by Plumbers
and Steamf►tters Local Union No. 141, herein the Union,
against Standard Plumbing and Heating Company, Inc,
herein Respondent Standard, the General Counsel issued
a complaint dated June 15, 1967, alleging Respondent Stand-
ard violated Section 8(a)(5) and (1) of the Act Upon
a charge filed in Case 15-CA-3202 on November 11, 1967,
by the Union against Sam F. Messina d/b/a Standard
Plumbing Company, herein Respondent Messina, the Gener-
al Counsel issued a complaint dated December 12, 1967,
alleging Respondent Messina violated Section 8(a)(5) and
(1) of the Act On the same date the General Counsel
issued an order consolidating said cases for the purposes
of hearing Respondents Standard and Messina filed answers
in each case denying the commission of any unfair labor
practices.
These cases, with all parties represented, were heard
before me on February 14 and 15 at Shreveport, Louisiana.
At the conclusion of the hearing the parties were given
leave to file briefs and briefs were received from the General
Counsel and the Respondent on April 10.
Upon the entire record in this case and from my observa-
tion of the witnesses while testifying, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
Respondent Standard is a Louisiana corporation maintain-
ing its office and principal place of business at Shreveport,
Louisiana , where it is and has been engaged in the business
of making plumbing repairs, providing general plumbing
services and Roto-Rooter Sewer Services During the 12-
month period preceding the issuance of the complaint in
Case 15-CA-3058 Respondent Standard purchased mate-
rials valued in excess of $50,000 from firms which in
turn purchased materials valued in excess of $50,000 directly
from places outside the State of Louisiana Respondent
Standard contends, however, that it is a retail enterprise
engaged in sales and plumbing repairs made to local consum-
ers and that its total sales for the past year had totaled
only $327,061. This total does not meet the Board's jurisdic-
tional standards for retail enterprises.
Respondent was, however, a member of the Plumbing
and Air Conditioning Contractors Association of Shreve-
port , Inc. herein the Association , and engaged in collective
bargaining as a multiemployer group with other members
of the Association with the Union The record does not
reveal the amount of business done, whether intrastate
or interstate , of the other members of the Association.
STANDARD PLUMBING & HEATING CO, INC 447
Dominic C. Messina, president of Respondent Standard,'
testified that the other members of the Association were
engaged primarily in construction plumbing, i e, plumbing
installations in buildings under construction. General Coun-
sel's Exhibit 4, a letter from the president of the Association
dated April 5, 1967, lists 16 plumbing firms which were
members of the Association as of that date I think it
only reasonable to infer that the total dollar figure of
sales and services of the Association, in view of Respondent
Standard's total annual sales of $327,061, would exceed
$500,000 annually I therefore find, reluctant as I am to
make a jurisdictional finding based on inference, that
Respondent Standard was, at the time of the alleged unfair
labor practices, engaged in commerce within the meaning
of the Act 2 In so finding I am not passing upon the
question as to whether or not Respondent Standard is
a retail or nonretail enterprise' The admission in the answer
that Respondent Standard purchased goods and materials
valued in excess of $50,000 annually from firms which,in
turn, purchase more than $50,000 annually directly from
places outside the State of Arkansas establishes jurisdiction
if Respondent Standard is a nonretail business The $500,000
retail standard is met on the basis of Respondent Standard's
membership in the Association.
As to Respondent Messina I find it unnecessary to
determine whether or not it meets the Board's standards
for asserting jurisdiction. Legal jurisdiction over Respondent
Messina is found in view of the fact that it purchased
goods and materials valued in excess of $4,000 during
the period from beginning May 29, 1967 until February
29, 1968, directly from places outside the State of Louisiana.
Because of the findings hereinafter made and for reasons
later stated I hold that the policies of the Act would
best be effectuated by asserting jurisdiction over Respondent.
In Tropicana Products, Inc., 122 NLRB 121, the employer
failed to appear at a representation hearing and the Hearing
Officer took secondary evidence as to the commerce opera-
tions of the employer The Board, pages 122 and 123,
stated.
The foregoing evidence conclusively demonstrates
that the Employer is extensively engaged in the ship-
ment of goods in interstate commerce. The record
does not reveal, however, the precise value of the
Employer's interstate shipments, and thus does not
show that the Employer's operations satisfy the Board's
jurisdictional standards. These standards were adopted
by the Board, inter aiia, as an administrative aid to
' Dominic's brother, Frank Messina, became vice president of Respond-
ent Standard and the two owned the controlling interest in it
2 American Linen Supph Co, 128 NLRB 639 Painting & Decorating
Contractor[ Aciouation of Orange Counts Inc 147 NLRB I Fichernien'c
Cooperative As%n 128 NLRB 62 Local 20076 Sightseeing Guides &
Lecturers Union of Greater Vecc I orb ( -1 BT Sightseeing Tours Inc ) 133
NLRB 985 This is true notwithstanding in employer', tender of resignation
from the.eoocidtion Lotal6 Building Siriice Ei» ploieec (Rani,e Building),
128 NLRB 74
' The General Counsel offered no evidence to establish that Respondent
Standard was a nonretail enterpise He merely applied the nonretail
standards to its volume of business I do not think that this sustains
his burden of proof on the jurisdictional issue The admitted indirect
inflow is sufficient to establish legal jurisdiction over Respondent Standard
Cf Southern Dolomite, 129 NLRB 1342
facilitate its jurisdictional determinations in order that
it might reduce the amount of time and energy expended
in the investigation of jurisdictional questions, so that
it might concentrate its energies on substantive issues
in the many important cases coming before it and
thus increase its case-handling capacity. The adoption
of such standards in no way precludes the Board
from exercising its statutory authority, in any properly
filed case, where legal jurisdiction alone is proven,
if the Board is satisfied that such action will best
effectuate the policies of the Act. [Fn. 3 cites N.L.R.B.
v W. B Jones Lumber Company, Inc., 245 F.2d 388
(C A. 9) ]
I therefore find that the discretion to exercise jurisdiction
in this case rests solely with the Board °
IL THE UNFAIR LABOR PRACTICES
A Case 15-CA-3058
Respondent Standard was incorporated in 1964 and
Dominic Messina became its president. Prior to that time
the same business was operated as a partnership composed
of Dominic and his brother Frank Messina. The partnership
became a member of the Association in 1948 or 1949
and Respondent Standard became a member of the Associa-
tion when incorporated Dominic Messina testified that
he was a member of the Association's bargaining committee
during negotiations leading to the last three contracts, which
included the one made effective April 1, 1967, and expiring
March 31, 1969 (G. C. Exh. 3 )'
Respondent Standard, as a member of the Association,
had been a party to all prior contracts which were signed
by the chairman of the Association's Negotiating Committee
and which were binding upon the members.
Respondent Standard did not sign the April 1, 1967,
agreement Messina testified that it was his position, and
had been for some time, that the contract should contain
a split scale, one for the construction plumbers and one
for the repair shop plumbers All other members of the
Association were construction plumbers6 and, according
to Messina, could pay higher rates than he could afford
Messina, on behalf of the Association and also on behalf
of Respondent Standard's individual position, participated
in the negotiations from December 1966 until March 30,
1967. Messina told the other members of the Association
on the night of March 30, the final night of negotiations,
that he would agree to a wage increase of $1.02 per hour
' I do not regard direct inflow in excess of $4,000 as de minions
Cf Lamar Hotel, 127 NLRB No 11
' The contract, article If, covers all journeymen plumbers and apprentices
within the jurisdiction of the Association I therefore find that the
appropriate unit consists of
All journeymen plumbers and apprentices employed by the Employer
at its Shreveport, Louisiana, shop, excluding office clerical employees,
guards, and supervisors as defined by the Act
Construction plumbers performed the plumbing work on new construc-
tion Messina testified that 95 percent to 98 percent of Respondent
Standard's sales were for local repair work and that only on a few
occasions did it perform so-called construction plumbing
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that "I don't want to have anything else to do. I
cannot survive" He then "went over and sat on a stool
by the wall, and I did not have anything else to do with
negotiations." The Association and the Union finally agreed
on a wage scale increasing rates to $1 20 per hour with
an additional 3 cents for a welfare fund. The next day
the Association and the Union ratified the agreement,
although Messina did not vote and told Dick Fitzgerald,
chairman of the Association's Negotiating Committee, that
he would have to get out of the Association. On April
1, 1967, he prepared a letter of withdrawal from the Associa-
tion which he delivered to the president of the Association
a few days later. (Joint Exh 7 )
On the evening of March 31 Messina told his employees
that he was no longer a party to any union contract
and that the men could either work for him or go back
to the Union. He offered them a 20-cent-per-hour increase
effective as of Monday, April 3; told them he would pay
for their uniforms and guaranteed at least one employee
a 40-hour week.'
Based on the foregoing statement of facts, taken from
the testimony of Dominic Messina, I find Respondent Stand-
ard violated Section 8(a)(5) and (1) of the Act by refusing
to agree to and accept the contract executed on April
I by the Association and the Union It is, as the Board
has consistently held, unlawful for an employer who is
a member of a multiemployer bargaining group to withdraw
from multiemployer bargaining after negotiations have been
initiated with the union. Due and timely notice is, absent
unusual circumstances, required to be given before negotia-
tions start!
I also find Respondent Standard violated Section 8(a)(5)
and (1) by granting its employees 20 cents per hour increase
and agreeing to pay for their uniforms without notice
to or bargaining with the Union concerning such benefits.
I do not, however, find that these benefits were conditioned
on or offered as an inducement to the men to abandon
the Union No hostility toward the Union has been shown
and Messina attempted to reach agreement with the Union
after April 1 based on a split scale contract. Under these
circumstances and since a finding of an independent violation
of Section 8(a)(1) would not add to the remedial order
recommended, I find it unnecessary to pass on that issue'
Following Messina's speech to his employees on March
31 an employee named Spears quit, telling Messina that
he (Spears) was getting old and would "spend the rest
of my time in the union shop." Tommy Messina, a nephew,
also quit, telling Dominic that he had a card with a Califor-
nia local, had pension rights there and would return to
' Messina said his men always worked 40 hours per week, although
it was not guaranteed
Retail 4sionaies Inc 1220 NLRB 388 -1ndersun Lithograph
Conipam Inc 124 NLRB920 CI LI S Lingerie Corp 170 NLRB No 77
' The General Counsel argues that Respondent Standard 's offer to
pay the fines of any employees who might be fined for continuing
working violated Section 8 (a)(1) There is no evidence that the Employer
was doing more than protecting those employees who wished to continue
working , a right the Act confers on them, from possible reprisal by
the Union He neither interfered with their right to work nor with
their right to strike
California. Another employee named Bell also quit to remain
a union member.
Although the Union started picketing Respondent Stand-
ard's place of business on April 19 I do not find that
employees Spears, Bell, and Messina engaged in a strike
against Respondent Standard."' All three, on the record
before me, voluntarily quit their employment with no expec-
tation of returning and without stating they would return
if Messina signed a contract with the Union In any event
neither the issue of an unfair labor practice strike nor
the issue of reinstatement was properly before me since
no application for reinstatement had been made at the
time of the hearing
B Case 15-CA-3202
The issues posed are whether Respondent Messina refused
to bargain in good faith with the Union and whether,
as a successor to Respondent Standard, it became obligated
to remedy its predecessor's unfair labor practices
Sam Francis Messina, nephew of Dominic and son of
Frank Messina, had been employed by Respondent Standard
until May 26, 1967 Sometime prior to May 26 Sam received
his plumber's license and then, on May 26, entered into
the lease and sale agreements, as above set forth, by which
he took over the business of Respondent Standard " Follow-
ing Dominic's speech to his employees, supra, Sam spoke
to them, telling them he was starting business the following
Monday and would hire any employees who would work
for him He commenced operations as a plumbing repair
and service shop and testified that it was similar to Respond-
ent Standard's business, adding, "But that's the only business
I know, I am a repair plumber." A comparison of the
payroll of Respondent Standard for the period May 19-
26 (G C. Exh 19-a) and the payroll of Respondent Messina
for May 29-June 2 establishes that there were 18 employees,
excluding Dominic, Frank and Sam Messina on each payroll.
All 18 who had been employed by Respondent Standard
became employees of Respondent Messina On February
2, 1968, 15 of these employees were on the payroll of
Respondent Messina which at that time had a total of
25 employees. (G C. Exh. 21-b.)
Sam Messina denied any knowledge of unfair labor prac-
tices on the part of Respondent Standard. Sam Messina
did know, however, that Respondent Standard had not
signed the new contract with the Union and that the
Union was picketing Respondent Standard The picket signs
read
STANDARD PLUMBING UNFAIR TO LOCAL
PLUMBERS AND STEAMFITTERS
LOCAL UNION 141.'2
10 The Union continued to picket the premises which were occupied
by Respondent Standard after the lease to Respondent Messina Respond-
ent Standard did continue its business on a greatly reduced scale at
these premises after the lease
" No evidence was offered that the purpose of the sale was to evade
the statutory bargaining obligation of Respondent Standard I find the
transaction was bona fide
" The sign remained unchanged after the transfer of the business
to Respondent Messina
STANDARD PLUMBING & HEATING CO, INC.
Sam acquired knowledge that unfair labor practices had
been charged when charges were filed against Respondent
Messina and he was so notified by Board Agent Gentile."
Dominic Messina could not remember ever discussing the
charges filed , against Respondent Standard with Sam
although he did have discussions concerning them with
Frank Messina, (Dominic's former partner and vice presi-
dent of Respondent Standard). It is difficult to believe
that neither his father nor his uncle would discuss these
charges with Sam before he took over the business. Neverthe-
less I find that notice of a labor dispute which involved
picketing of the premises where Sam worked and which
he was about to lease constituted a caveat sufficient to
put him on notice. While I do not expect a journeymen
plumber fully to understand the sundry obligations imposed
by the statute I would not permit either his ignorance
nor innocence to relieve him from those obligations. His
employees are not to be deprived of their rights on such
grounds.
Sam Messina testified that he did not notify the Union
of the change of ownership and stated, and this is not
contradicted, that the Union did not at any time request
that he bargain with it. Accordingly no negotiations were
ever held and there the matter rested at the time of hearing
Based upon the foregoing facts, substantially uncontradict-
ed, I reach the following conclusions.
1. Respondent Messina is a successor employing industry
to Respondent Standard" and as such is obligated to remedy
the unfair labor practices of its predecessor. In Perma
Vinyl Corporation, et al., 164 NLRB No 119, the Board,
reversing Syms Grocer Co., 109 NLRB 346, held that "one
who acquires and operates a business of an employer found
guilty of unfair labor practices in basically unchanged form
under circumstances which charge him with notice of unfair
labor practices charges against his predecessor should be
held responsible for remedying his predecessor's unlawful
conduct."
2. Since no request for bargaining was ever made upon
Respondent Messina I do not find that Respondent Messina
violated Section 8(a)(5) and (1) of the Act
iIi THE REMEDY
Having found that Respondent Standard engaged in and
is engaging in certain unfair labor practices it shall be
recommended that it cease and desist from the same and
" The charge is dated November 9, 1967 , and the letter notifying
Respondent Messina of the filing of the charge , signed by Charles M
Paschal, Jr , Acting Regional Director for Region 15, is dated the same
day Both the letter and the charge named the Respondent as Standard
Plumbing Company The charge (paragraph 1-d) named Sam F Messina
as the person to contact
" Wiley v Livingston, 376 US 543, 551, NLR B v Hoppes Mfg
Co, 170 F 2d 962, (C A 6) NLR B. v Downtown Bakery, 330 F 2d
921 (C A 6), Overnite Transportation Co v NLRB, 372 F 2d 765,
767-768 (C A 4) cert denied 389 U S 838 Y L R B v luto Ventshade
Inc 276 F 2d 303 306-308 (C A 5) N L R B i Mi Farland 306 F 2d 219
(C A 10) Mmntenanie In, 148 NLRB 1299 CI V L R B i Birdmll-
Stnc ddale Motor Co 208 F 2d 231 (C A 10)
449
take certain affirmative action necessary to effectuate the
policies of the Act.
Having found that Respondent Messina is obligated, inso-
far as possible, to remedy the unfair labor practices of
Respondent Standard, it shall be recommended that
Respondent Messina take certain affirmative action neces-
sary to effectuate the policies of the Act
Having found that Respondent Standard was obligated
by law to give full force and effect to the contract made
effective April 1, 1967, and expiring March 31, 1969,
between the Association and the Union, it shall be recom-
mended that Respondent make whole all employees on
its payroll from April 1 through May 26, 1967, for any
loss of benefits, including wages, they may have suffered
by reason of Respondent Standard's failure to give full
force and effect to such contract 15 Because all of the
employees on the payroll for said period appear to have
entered the employ of Respondent Messina on May 29,
1967, Respondent Standard will be responsible for making
these employees whole for loss of benefits from April 1
to May 29, 1967.i6
Having found that Respondent Messina was obligated
to remedy the unfair labor practices of Respondent Standard
it shall be recommended that it give full force and effect
to the contract, including its wage scale, between the Associ-
ation and the Union for the balance of its term Since
no unfair labor practices were found against Respondent
Messina until the date of this Decision it shall be recom-
mended that Respondent Messina shall give full force and
effect to said contract from a date starting 10 days after
receipt of this Decision and continuing until the expiration
of said contract
Upon the basis of the foregoing findings and conclusions,
I make the following.
CONCLUSIONS OF LAW
1. By failing and refusing to give full force and effect
to a collective-bargaining contract between the Association
and the Union, effective April 1, 1967, and expiring March
31, 1969, and by unilaterally changing the terms and condi-
tions of employment of its employees, Respondent Standard
violated Section 8(a)(5) and (1) of the Act.
2. The unit appropriate for collective bargaining is
All journeymen plumbers and apprentices employed
at Respondent Standard's Shreveport, Louisiana, plant,
excluding office clerical employees, guards and supervi-
sors as defined by the Act
3 The aforesaid unfair labor practices are unfair labor
practices within the meaning of the Act.
4. Respondent Messina has not engaged in unfair labor
practices within the meaning of the Act
" Dominic Messina testified that he was still doing business , having
reserved an office for himself at the leased premises The record does
not indicate whether he employs or may in the future employ any
employees at that address Any such employees would be entitled to
the benefits of the aforesaid contract until its expiration
" Overnite Transportation Co v NL R B, 372 F 2d 765, supra
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
A. Respondent Standard Plumbing and Heating
Company, I nc., its officers , agents, successors , and assigns,
shall-
I Cease and desist from-
(a) Failing and refusing to give full force and effect
to a collective -bargaining contract made effective April
1, 1967, and expiring March 31, 1969, between Plumbing
and Air Conditioning Contractors Association of Shreve-
port, Inc, and Plumbing and Steamfitters Local Union
141, which contract covers the terms and conditions of
employment of journeymen plumbers and apprentices
engaged in the installing of all plumbing , air conditioning,
refrigeration , and/or pipefitting systems and component
parts thereof, including fabrication , assembling , erection,
installation , dismantling, repairing , reconditioning , adjust-
ing, altering, servicing and handling, unloading , distributing,
reloading , tying on, and hoisting all piping materials,
appurtenances , and equipment by any method , including
all hangers and supports of every description and all other
work included in the trade jurisdictional claims of the
United Association.
(b) Effecting changes in the wages, hours, and other
terms and conditions of employment of its employees in
the unit found appropriate herein without notice to and
consultation with the Union
2 Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole its journeymen plumbers and apprentices
for any loss of benefits , including loss of wages, they
may have suffered from its failure to give full force and
effect to the collective -bargaining agreement set forth in
paragraph 1(a) of this Recommended Order."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all payroll
records, social security records, timecards, and personnel
records necessary to analyze and compute the amounts
due its journeymen plumbers and apprentices employed
after April 1, 1967, under the terms of said contract.
(c) Post at its Shreveport , Louisiana , shop copies of
the attached notice marked "Appendix A."18 Copies of
said notice , on forms provided by the Regional Director
for Region 15, after being duly signed by an authorized
representative of the Respondent Standard, shall be posted
by the Respondent Standard immediately upon receipt there-
of, and be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps shall
be taken by the Respondent Standard to insure that such
" This recommendation shall apply to all journeymen plumbers and
apprentices on Respondent Standard 's payroll between April 1 and May
29, 1967, and to all journeymen plumbers and apprentices employed
thereafter until the expiration of said contract
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice
in the further event that the Board's Order is enforced by a decree
of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for
the words "a Decision and Order "
notices are not altered , defaced , or covered by any other
material.
(d) Notify the Regional Director for Region 15, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent Standard has taken to comply
herewith."
It is further recommended that all allegations of the
complaint not specifically found to be in violation of the
Act be dismissed.
B. Respondent Sam Messina d/b/a Standard Plumbing
Company, his agents , successors , and assigns shall take
the following affirmative action necessary to effectuate pur-
poses of the Act
1. Within 10 days from receipt of this Decision give
full force and effect to the collective -bargaining contract,
including its rates of pay, made effective April 1, 1967,
and expiring March 31, 1969, between Plumbing and Air
Conditioning Contractors Association of Shreveport, Inc ,
and Plumbing and Steamfitters Local Union 141, covenng
journeymen and apprentices as more fully set forth in
paragraph 1 (a) of this Recommended Order. Full force
and effect to the terms of this contract shall be given until
March 31, 1969
2. Post at his Shreveport , Louisiana , shop, copies of
the attached notice marked "Appendix B "20 Copies of
said notice , on forms provided by the Regional Director
for Region 15, after being duly signed by an authorized
representative of the Respondent Messina, shall be posted
by the Respondent Messina immediately upon receipt there-
of, and be maintained for 60 consecutive days thereafter
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps shall
be taken by the Respondent Messina to insure that such
notices are not altered , defaced, or covered by any other
material
3. Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
and other records necessary to analyze and compute the
amounts due its journeymen plumbers and apprentices
employed after 10 days from the date of receipt of this
Recommended Order
4. Notify the Regional Director for Region 15, in writing,
within 20 days of this Decision , what steps it has taken
to comply herewith.21
IT IS FURTHER RECOMMENDED that the complaint against
Respondent Messina be dismissed in its entirety.
" In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 15, in writing , within 10 days from the date of
this Order , what steps Respondent Standard has taken to comply here-
with "
'0 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice
In the further event that the Board 's Order is enforced by a decree
of a United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for
the words , "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 15, in writing , within 10 days from the date of
this Order, what steps Respondent Messina has taken to comply herewith "
STANDARD PLUMBING
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
that:
WE WILL give full force and effect to the collective-
bargaining agreement made effective April 1, 1967,
and expiring March 31, 1969, between Plumbing and
Air Conditioning Contractors Association of Shreve-
port, Inc, and Plumbing and Steamfitters Local Union
141, covering journeymen plumbers and apprentices
until the expiration of said contract
WE WILL make whole any journeymen plumbers
and apprentices employed by us for any loss of benefits,
including our failure to pay the wage scale of said
contract, they may have lost because we did not give
full force and effect to said contract. This will apply
to all journeymen plumbers and apprentices employed
by us from April 1 to May 29, 1967, and to any
journeymen plumbers and apprentices employed after
May 29 to date of the expiration of said contract.
WE WILL NOT change the wages, hours, or other
terms and conditions of employment of our journeymen
plumbers and apprentices without notice to and consul-
tation with Plumbing and Steamfitters Local Union
141
STANDARD PLUMBING AND
HEATING COMPANY, INC
(Employer)
Dated By
(Representative)
(Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice or
compliance with its provisions, they may communicate
& HEATING CO , INC 451
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
that
I WILL, within 10 days from the date I received
a copy of the Trial Examiner's Decision in Case No.
3202, give full force and effect to the collective-bargain-
ing contract, including its rates of pay, made effective
April 1, 1967, and expiring March 31, 1969, between
Plumbing and Air Conditioning Contractors Associa-
tion of Shreveport, Inc., and Plumbing and Steamfitters
Local Union 141 This contract covers all journeymen
plumbers and apprentices employed by me Full force
and effect shall be given by and until the expiration
date of said contract, March 31, 1969.
SAM F MESSINA d/b/a
STANDARD PLUMBING
COMPANY
(Employer)
Dated By
(Representative)
(Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans, Louisi-
ana 70113, Telephone 527-6391.