Top Notch Plumbing

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 102 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
Top Notch Plumbing, Inc. and James Daniel Kelley.
Case 7–CA–44446
May 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND ACOSTA
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the consolidated amended complaint and
compliance specification. Upon a charge filed by James
Daniel Kelley (the Charging Party) on October 12, 2001,
the General Counsel issued a consolidated amended
complaint and compliance specification on February 21,
2002, against Top Notch Plumbing, Inc., the Respondent,
alleging that it has violated Section 8(a)(1) and (3) of the
Act and setting forth the amount of backpay due. The
Respondent failed to file an answer.
On May 1, 2002, the General Counsel filed a Motion
for Summary Judgment with the Board. On May 7,
2002, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The 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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification shall be deemed admitted if an an-
swer is not filed within 21 days from service of a com-
pliance specification.
The consolidated amended complaint and compliance
specification stated that the Respondent had 14 days to
file an answer instead of the 21 days required by Section
102.56(a). However, on March 15, 2002, the Regional
Director issued an Erratum granting the Respondent an
additional 14 days to file an answer. Thereafter, by letter
dated April 4, 2002, the Region further notified the Re-
spondent that unless an answer was received by April 12,

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer. Accordingly,
we construe the General Counsel’s motion as a motion for default judg-
ment.
2002, a Motion for Default Judgment would be filed.2
Nevertheless, the Respondent did not file an answer to
the consolidated amended complaint and compliance
specification.3
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.4
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 Martin, Michigan
(the Martin facility), has been engaged in the removal,
repair, and installation of plumbing and heating systems.
The Respondent’s Grand Rapids Community College
(GRCC) jobsite is its only location involved in this pro-
ceeding. During the calendar year ending December 31,
2000, the Respondent, in conducting its operations de-
scribed above, purchased and received at its Martin facil-
ity and GRCC, Grand Rapids, Michigan jobsite, goods
and materials valued in excess of $50,000 directly from
points located outside of 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. We further find that West Michigan
Plumbers, Fitters and Service Trades Association, Local
No. 174, United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO (the Union), is a
labor organization within the meaning of Section 2(5) of
the Act.
2 The copies of the consolidated amended complaint and compliance
specification, erratum, and April 4, 2002 letter that were sent to Re-
spondent by certified mail were returned marked “unclaimed.” How-
ever, the Respondent’s failure or refusal to accept certified mail or to
provide for appropriate service cannot serve to defeat the purposes of
the Act. See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986).
3 The General Counsel’s motion and supporting exhibits, which are
uncontroverted, indicate that the Respondent also did not file an answer
to the original complaint in this case, which issued December 21, 2001.
4 The General Counsel’s motion states that, on February 11, 2002,
the Respondent notified the Region by telephone that it had ceased
operations, had filed for bankruptcy, and that it would not be filing an
answer in this matter. It is well established that the institution of bank-
ruptcy proceedings does not deprive the Board of jurisdiction or author-
ity to entertain and process an unfair labor practice case to its final
disposition. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989),
and cases cited there. Board proceedings fall within the exception to
the automatic stay provisions for proceedings by a governmental unit to
enforce its police or regulatory powers. See id., NLRB v. 15th Avenue
Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns
Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983).
339 NLRB No. 19
TOP NOTCH PLUMBING 103
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, William Brooks has held the po-
sition of president and has been a supervisor of Respon-
dent within the meaning of Section 2(11) of the Act and
an agent of Respondent within the meaning of Section
2(13) of the Act.
On or about July 27, 2001, the Respondent, by its
Agent William Brooks, discharged the Charging Party at
the GRCC jobsite because of his lack of membership in
the Union.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has discriminated in regard to hire and tenure or
terms or conditions of employment of its employees,
thereby encouraging membership in the Union in viola-
tion of Section 8(a)(3) and (1) of the Act. The Respon-
dent’s unfair labor practice affects 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 has violated Section 8(a)(3)
and (1) by discharging James Daniel Kelley, we shall
order the Respondent, in the event it resumes the same or
similar business operations,5 to offer him full reinstate-
ment to his former position, or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges
previously enjoyed. In addition, we shall order the Re-
spondent to make Kelley whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, as set forth in the compliance specifica-
tion, with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), minus any tax with-
holdings required by Federal and State laws. The Re-
spondent shall also be required to expunge from its files
any and all references to the unlawful discharge, and to
notify Kelley in writing that this has been done. Finally,
inasmuch as the Respondent ceased operations on
September 21, 2001, we shall order it to mail, rather than
post, copies of the attached notice to employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Top Notch Plumbing, Inc., Martin and

5 The compliance specification states that the Respondent perma-
nently ceased operations on September 21, 2001, and that the backpay
period ends on that date.
Grand Rapids, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employees because of their lack of membership in
the Union or any other labor organization, except as
permitted by Section 8(a)(3) of the Act.
(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) In the event the Respondent resumes the same or
similar business operations, within 14 days thereafter,
offer James Daniel Kelley full reinstatement to his for-
mer position, or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
(b) Make James Daniel Kelley whole by paying him
$9,365.76, plus interest and minus tax withholdings re-
quired by Federal and State laws, as set forth in the rem-
edy section of this Decision.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful dis-
charge of James Daniel Kelley, and within 3 days there-
after, notify him in writing that this has been done, and
that the unlawful conduct will not be used against him in
any way.
(d) Preserve and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records, if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, a copy of
the attached notice marked “Appendix”6 to all employees
who have been employed by the Respondent at any time
since July 27, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to mail 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 discharge employees because of their
lack of membership in West Michigan Plumbers, Fitters
and Service Trades Association, Local No. 174, United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, AFL–CIO, or any other labor organization,
except as permitted by Section 8(a)(3) of 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, in the event we resume the same or similar
business operations, within 14 days thereafter, offer
James Daniel Kelley full reinstatement to his former po-
sition, or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make James Daniel Kelley whole for any loss
of earnings and benefits suffered as a result of his unlaw-
ful discharge prior to our ceasing operations by paying
him $9,365.76, plus interest, minus tax withholdings
required by Federal and State laws.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharge of James Daniel Kelley, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done, and that the unlawful conduct will
not be used against him in any way.

TOP NOTCH PLUMBING, INC.