Thermico, Inc. and Associate Resources, Inc., a Single Employer

National Labor Relations Board - Board Decisions

Oct 26, 2016

364 NLRB No. 135 (N.L.R.B. 2016)

364 NLRB No. 135
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.
Thermico, Inc. and Associate Resources, Inc., a Single
Employer and Local 47, International Associa-
tion of Heat and Frost Insulators and Allied
Workers (AWIU), AFL–CIO. 07–CA–170484
October 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Following the filing of a charge on February
23, 2016,1 by Local 47, International Association of Heat
and Frost Insulators and Allied Workers (AWIU), AFL–
CIO (the Union) against Thermico, Inc. and Associate
Resources, Inc. as a single employer (the Respondent or
the Charged Party), the parties entered into a bilateral
informal settlement agreement, which was approved by
the Regional Director for Region 7 on March 15.
Among other things, the settlement agreement required
the Respondent to: (1) bargain collectively and in good
faith with the Union, on request, as the exclusive collec-
tive-bargaining representative of its employees; (2) bar-
gain with the Union collectively and in good faith, on
request, for a period of one year after good-faith bargain-
ing commences, in accordance with Mar-Jac Poultry
Co., 136 NLRB 785 (1962); (3) put in writing and sign
any agreement reached on the terms and conditions of
employment of unit employees; and (4) post appropriate
notices.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue a Complaint that includes the allegations covered
by the Notice to Employees, as identified above in the
Scope of Agreement section, as well as filing and ser-
vice of charge(s), commerce facts necessary to estab-
lish Board jurisdiction, labor organization status, ap-
propriate bargaining unit (if applicable), and any other
allegations the General Counsel would ordinarily plead
to establish the unfair labor practices. Thereafter, the

1 All dates are 2016 unless otherwise indicated.
General Counsel may file a Motion for Default Judg-
ment with the Board on the allegations of the Com-
plaint. The Charged Party understands and agrees that
all of the allegations of the Complaint will be deemed
admitted and it will have waived its right to file an An-
swer to such Complaint. The only issue that the
Charged Party may raise before the Board will be
whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair labor
practice identified in the Notice to Employees. The
Board may then, without necessity of trial or any other
proceeding, find all allegations of the Complaint to be
true and make findings of fact and conclusions of law
consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings.
The Board may then issue an Order providing a full
remedy for the violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party at the last address
provided to the General Counsel.
By letter dated March 23, the Region sent the Re-
spondent a copy of the conformed settlement agreement,
with a cover letter advising the Respondent to take the
steps necessary to comply with it. On May 31, the Re-
gion notified the Respondent, by a letter sent by mail and
email, that the Union asserted that the Respondent had
violated the terms of the settlement agreement by failing
to post the Notice in a conspicuous location at its Mid-
land, Michigan facility and by failing to respond to the
Union’s May 12 letter requesting bargaining. The letter
further advised the Respondent of its obligation to re-
spond to these assertions by June 7 and warned that its
failure to do so may result in the issuance of a complaint
and the filing of a motion for default judgment.
On June 13, the Respondent submitted its response to
the Region’s letter, denying the allegations of non-
compliance. The Respondent asserted that it had posted
the Notice and that it had never received a letter from the
Union requesting bargaining. On June 14, the Region
again notified the Respondent by mail that the Union
asserted that the Respondent had not fully complied with
the terms of the settlement agreement by engaging in
good-faith bargaining and by posting the Notice in con-
spicuous locations for 60 consecutive days. The letter
advised the Respondent of its obligation to fully comply
with the terms of the notice posting and collective-
bargaining provisions of the settlement agreement within
14 days of that letter. The Region’s letter also warned
the Respondent that its failure to comply may result in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the issuance of a complaint and the filing of a motion for
default judgment.
On June 15, the compliance officer for the Region
spoke with the Respondent’s president and chief execu-
tive officer, Mark Thompson, and informed him that the
Union requested bargaining in its May 12 letter to the
Respondent. Thompson asserted that he did not receive
the letter. By email dated June 27, the compliance of-
ficer forwarded to the Respondent a copy of the May 12
letter and the Respondent thereafter acknowledged re-
ceipt. The compliance officer attempted to call Thomp-
son on June 29 and 30. The compliance officer was una-
ble to leave a voice message because Thompson’s
voicemail indicated that his mailbox was full. In addi-
tion, the Respondent’s operator did not answer calls.
On July 13, the Regional Director issued a complaint
based on breach of affirmative provisions of settlement
agreement (the complaint). On July 19, the General
Counsel filed a Motion for Default Judgment with the
Board. On July 20, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement by
failing and refusing to meet and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of the unit and by failing to post the No-
tice to Employees in the manner prescribed by the set-
tlement agreement.2 Consequently, pursuant to the non-
compliance provisions of the settlement agreement set
forth above, we find that all of the allegations of the
complaint are true.3 Accordingly, we grant the General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Thermico has been a
corporation with an office and place of business in Mid-

2 In granting the motion for default judgment, Member Miscimarra
would not find, based on the evidence presented, that the Respondent
failed to post the Notice to Employees in the manner prescribed by the
settlement agreement. In his view, that issue remains in dispute. None-
theless, he agrees that the Respondent has failed to comply with the
settlement agreement’s terms to meet and bargain in good faith with the
Union.
3 See U-Bee, Ltd., 315 NLRB 667 (1994).
land, Michigan, and has been engaged in providing me-
chanical insulation services.
At all material times, Respondent Associate Re-
sources, Inc. has been a corporation with an office and
place of business in Midland, Michigan, and has been
engaged in providing mechanical insulation services.
At all material times, Respondent Thermico and Re-
spondent Associate Resources have been affiliated busi-
ness enterprises with common officers, ownership, direc-
tors, management, and supervision; have formulated and
administered a common labor policy; have shared com-
mon premises and facilities; have provided services for
and made sales to each other; have interchanged person-
nel with each other; have had interrelated operations with
common insurance, purchasing, and sales; and have held
themselves out to the public as a single-integrated busi-
ness enterprise.
Based on the above operations, Respondent Thermico
and Respondent Associate Resources constitute a single
integrated business enterprise and a single employer
within the meaning of the Act.
During the 2015 calendar year, a representative period,
the Respondent derived gross revenues in excess of
$500,000 and purchased and received at its Midland,
Michigan facility goods and materials valued in excess of
$50,000 directly from points located outside the State of
Michigan.
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 Local 47, International Associa-
tion of Heat and Frost Insulators and Allied Workers
(AWIU), AFL–CIO (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Mark Thompson, president and
chief executive officer of the Respondent, has been a
supervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time mechanical insula-
tion installers employed by the Respondent, at and out
of its facility located at 3405 Centennial Drive, Suite 2,
Midland, Michigan, but excluding scaffold builders,
painters, office clerical employees, managerial employ-
ees, professional employees, technical employees, de-
livery drivers, and guards and supervisors as defined by
the Act, and all other employees.
THERMICO, INC. 3
On August 25, 2015, the Board certified the Union as
the exclusive collective-bargaining representative of the
unit.
Since August 25, 2015, based on Section 9(a) of the
Act, the Union has been the exclusive collective-
bargaining representative of the unit.
Since about October 5, 2015, and continuing to date,
the Union requested that the Respondent meet for the
purpose of negotiating a first collective-bargaining
agreement.
On May 12, the Union again requested in writing that
the Respondent meet for the purpose of negotiating a
first collective-bargaining agreement.
During the above period, the Respondent has failed
and refused to meet and bargain with the Union.
By the above conduct, the Respondent has failed and
refused to bargain with the Union as the exclusive collec-
tive-bargaining representative of the unit.
CONCLUSION OF LAW
By the above conduct, the Respondent has been failing
and refusing to bargain collectively and in good faith
with the exclusive collective-bargaining representative of
its unit employees, in violation of Section 8(a)(5) and
(1). The Respondent’s unfair labor practices 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.4 Specifically, having

4 As set forth above, the settlement agreement provided that, in the
event of noncompliance, the Board could “issue an Order providing a
full remedy for the violations found as is appropriate to remedy such
violations.” The General Counsel’s motion does not explicitly request
a full remedy, nor does it explicitly seek a Board Order enforcing the
terms of the settlement. Rather, the motion seeks a remedy “including
but not limited to” an order requiring the Respondent to (1) on request,
bargain in good faith with the Union for a period of 1 year after good-
faith bargaining commences, in accordance with Mar-Jac Poultry Co.,
136 NLRB 785 (1962); (2) meet and bargain with the Union on speci-
fied dates “agreed upon by the parties, at least twice a week, and for at
least 4 hours per meeting, until a complete collective-bargaining
agreement or a good-faith impasse is reached;” and (3) post appropriate
notices. The motion requests these remedies “[i]n addition to any such
other relief deemed appropriate and necessary, including the remedies
requested in the aforementioned Complaint . . . and Settlement Agree-
ment and Notice to Employees . . . .” In these circumstances, we con-
strue the General Counsel’s motion as requesting full remedies for the
violations found rather than seeking compliance with the settlement
agreement, and we shall order those remedies. See L.J. Logistics, Inc.,
339 NLRB 729, 730–731 (2003). In addition, we note that the full
remedies granted here closely mirror the remedies in the parties’ set-
tlement agreement.
found that the Respondent violated Section 8(a)(5) and
(1) of the Act, we shall order the Respondent, on request,
to bargain collectively and in good faith with the Union
as the exclusive collective-bargaining representative of
unit employees and, if an understanding is reached, to
embody the understanding in a signed agreement. 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., supra; 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).
ORDER
The National Labor Relations Board orders that the
Respondent, Thermico, Inc. and Associate Resources,
Inc., Midland, Michigan, a single employer, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Local 47, International Association of Heat and Frost
Insulators and Allied Workers (AWIU), AFL–CIO as the
exclusive collective-bargaining representative of em-
ployees in the bargaining unit.
(b) 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) 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.
All full-time and regular part-time mechanical insula-
tion installers employed by the Respondent, at and out
of its facility located at 3405 Centennial Drive, Suite 2,
Midland, Michigan, but excluding scaffold builders,

In granting the General Counsel’s request that we impose a bargain-
ing schedule, we note that it has been more than 1 year since the Un-
ion’s certification, and 11 months since the Union first requested bar-
gaining, yet bargaining has not commenced. Instead, the Respondent:
(1) refused the Union’s requests to bargain; (2) abrogated its obligation
under a bilateral settlement to bargain; and (3) failed to respond to the
Union’s subsequent bargaining requests. In these circumstances, we
find that the requested bargaining schedule is warranted both to restore
the Union’s status as the employees’ bargaining representative and to
promote regular, meaningful bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
painters, office clerical employees, managerial employ-
ees, professional employees, technical employees, de-
livery drivers, and guards and supervisors as defined by
the Act, and all other employees.
(b) Bargain in good faith with the Union not less than
twice per week, at least 4 hours per session, or another
schedule mutually agreed upon by the parties, until a
complete collective-bargaining agreement or a bona fide
impasse is reached.
(c) Within 14 days after service by the Region, post at
its facility in Midland, Michigan, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since October 5, 2015.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. October 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

5 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.”
MEMBER MISCIMARRA, dissenting in part.
Unlike my colleagues, I do not agree that a bargaining
schedule remedy is warranted in the circumstances of
this case. Such a remedy is considered by the Board to
be “extraordinary,” typically reserved for cases involving
pervasive or egregious unfair labor practices.1 In Gim-
rock Construction, Inc., 356 NLRB 529 (2011), enf. de-
nied in part 695 F.3d 1188 (11th Cir. 2012), for example,
the Board imposed a bargaining schedule where the re-
spondent had steadfastly refused to comply with the
Board’s June 2005 decision in which it found that the
respondent had failed and refused—since October
1999—to meet and bargain with the union and provide it
with requested relevant information. Although the
Board’s Order was thereafter enforced by the 11th Cir-
cuit, the respondent continued to ignore the union’s re-
quests to meet and bargain and provide it with the rele-
vant information. In view of the respondent’s continuing
refusal—over a period of years—to comply with its bar-
gaining order, the Board found that imposition of a bar-
gaining schedule was necessary to ensure that the re-
spondent meaningfully complied with its bargaining ob-
ligations as set forth in the court-enforced order. Addi-
tionally, in Camelot Terrace, 357 NLRB 1934 (2011),
enfd. in part 824 F.3d 1085 (D.C. Cir. 2016), the Board
found it appropriate to impose a bargaining schedule
remedy where the respondents’ “aggravated unlawful
conduct ‘infected the core’ of the bargaining process.”
Id. at 1937. In doing so, the Board found that the re-
spondents had nothing but contempt for the bargaining
process and assiduously sought to restrict the dates and
length of bargaining sessions, repeatedly cancelled and
shortened scheduled bargaining sessions, unreasonably
restricted bargaining to no more than 4 hours per session,
reneged on tentative agreements without good cause,
refused to bargain over or make economic proposals, and
unilaterally implemented numerous changes in employ-
ees’ terms and conditions of employment during the par-
ties’ negotiations. In these circumstances, the Board
found that a bargaining schedule—one of two extraordi-
nary remedies that it ordered—was necessary to elimi-
nate the deleterious effects of the respondents’ pervasive
bad faith in bargaining. Id. at 1942–1943. See also Pro-
fessional Transportation, Inc., 362 NLRB No. 60 (2015)
(imposing a bargaining schedule where the respondent
had established an impermissible pattern of dilatory con-
duct by canceling seven consecutive bargaining sessions
over a period of two months and insisting to the point of

1 See, e.g., Leavenworth Times, 234 NLRB 649, 649 fn. 2 (1978)
(characterizing the requested relief, which included a bargaining sched-
ule, as “extraordinary”); Crystal Springs Shirt Corp., 229 NLRB 4
(1977) (same).
THERMICO, INC. 5
impasse on a conditional bargaining demand); All Sea-
sons Climate Control, Inc., 357 NLRB 718, 718 fn. 2,
734 (2011) (ordering employer to comply with a bar-
gaining schedule to remedy its “egregious misconduct”
that included soliciting and encouraging an employee to
circulate two decertification petitions while first contract
bargaining was ongoing, and withdrawing recognition
based on one of the petitions), enfd. 540 Fed.Appx. 484
(6th Cir 2013).
The circumstances necessitating a bargaining schedule
remedy do not exist in this case. Here, the Union was
certified in August 2015, and the Union first requested
bargaining on October 5, 2015. On May 12, 2016, after
the parties had entered into the settlement agreement, the
union again requested bargaining, but the Respondent did
not respond. While I agree that the Respondent unlaw-
fully failed to comply with the settlement agreement’s
terms, there is no allegation or evidence that the Re-
spondent violated the Act in any other way. Its conduct
therefore falls short of the pervasive or egregious mis-
conduct that warrants imposing a bargaining schedule.
In my view, the Board’s traditional remedies are suffi-
cient to remedy the unfair labor practices found in this
case. See generally Frontier Hotel & Casino, 318 NLRB
857 (1995). Accordingly, I respectfully dissent.
Dated, Washington, D.C. October 26, 2016
______________________________________
Philip A. Miscimarra, Member
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 activi-
ties.
WE WILL NOT fail and refuse to recognize and bargain
with Local 47, International Association of Heat and
Frost Insulators and Allied Workers (AWUI), AFL–CIO
as the exclusive collective-bargaining representative of
our employees in the bargaining unit.
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-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time mechanical insula-
tion installers employed by us, at and out of our facility
located at 3405 Centennial Drive, Suite 2, Midland,
Michigan, but excluding scaffold builders, painters, of-
fice clerical employees, managerial employees, profes-
sional employees, technical employees, delivery driv-
ers, and guards and supervisors as defined by the Act,
and all other employees.
WE WILL bargain in good faith with the Union not less
than twice per week, at least 4 hours per session, or an-
other schedule mutually agreed upon, until a complete
collective-bargaining agreement or a bona fide impasse is
reached.
THERMICO, INC. AND ASSOCIATE
RESOURCES, INC.
The Board’s decision can be found at
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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.