ABS Heating & Cooling

National Labor Relations Board - Board Decisions

Apr 7, 2008

352 N.L.R.B. 50 (N.L.R.B. 2008)

352 NLRB No. 50
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.
Brian David Sanderson d/b/a ABS Heating and Cool-
ing and Local 7, Sheet Metal Workers Interna-
tional Association, AFL–CIO. Case 7–CA–50842
April 7, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on November 8, 2007, the General Counsel issued
a complaint on December 27, 2007, against Brian David
Sanderson d/b/a ABS Heating and Cooling, the Respon-
dent, alleging that it has violated Section 8(a)(5) and (1)
of the Act by failing and refusing to abide by its collec-
tive-bargaining agreement with the Union. The Respon-
dent failed to file an answer.
On February 14, 2008, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on February 19, 2008, 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.
Ruling on Motion for Default Judgment1
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 the answer must be received by the Regional Office
on or before January 10, 2008, or a motion for default
judgment may be filed. Further, the undisputed allega-
tions in the General Counsel’s motion disclose that the
Region, by letter dated January 11, 2008, notified the
Respondent that unless an answer was received by Janu-
ary 18, 2008, a motion for default judgment would be
filed. On January 14 and 28, 2008, the Respondent re-
quested and was granted extensions of time to file an
answer; on January 30, 2008, the Regional Director is-

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
sued an Order extending the time to file an answer to
February 4, 2008. Despite these extensions, however,
the Respondent failed to file an answer.
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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a sole proprie-
torship, with its principal office and place of business in
Linden, Michigan, has been engaged as a heating and
cooling contractor in the construction industry doing
commercial and residential installation, maintenance and
repairs throughout the State of Michigan.
During calendar year 2006, a representative period, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its Linden,
Michigan facility goods valued in excess of $50,000
from other enterprises located within the State of Michi-
gan, each of which other enterprises had received these
goods directly from points 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 7, Sheet Metal Workers
International Association, AFL–CIO, the Union, is a la-
bor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Brian David Sanderson has held
the position of the Respondent’s owner and has been a
supervisor of Respondent within the meaning of Section
2(11) of the Act, and an agent of the Respondent within
the meaning of Section 2(13) of the Act.
At all material times, the Flint Area Association of
Sheet Metal Contractors (the Association), has been an
organization composed of various employers engaged in
the construction industry, one purpose of which is to rep-
resent its employer-members in negotiations and admin-
istering collective-bargaining agreements with the Union.
At all material times, the Association and the Union
have entered into successive collective-bargaining
agreements, the most recent of which is effective from
May 1, 2005 through April 30, 2008.
About June 23, 2006, the Respondent entered into a
letter of assent which at all material times bound the Re-
spondent to the terms and conditions of employment of
the 2005–2008 collective-bargaining agreement.
The Respondent, an employer engaged in the building
and construction industry, granted recognition to the Un-
ion as the exclusive collective-bargaining representative
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of the unit without regard to whether the majority status
of the Union had ever been established under the provi-
sions of Section 9(a) of the Act. Such recognition is em-
bodied in the letter of assent.
The following employees of the Respondent, herein
called the unit, constitute a unit appropriate for the pur-
poses of collective bargaining with the meaning of Sec-
tion 9(b) of the Act:
All employees engaged in the fabrication, erection, in-
stallation, repairing, replacing and servicing of all resi-
dential heating and air conditioning systems and the ar-
chitectural sheet metal work of such residences; and all
employees engaged in the fabrication, erection, installa-
tion, repairing, replacing and servicing of all jobs con-
sisting of 20 tons of light commercial work.
At all material times, since June 23, 2006, based on
Section 8(f) of the Act, the Union has been the limited
exclusive collective-bargaining representative of the
unit.2
On or about May 30, 2007, the Union, by its agent
Ralph Fick, requested that Respondent adhere to the
2005–2008 collective-bargaining agreement.
Since on or about May 30, 2007, the Respondent has
refused to comply with the terms and conditions of the
2005–2008 collective-bargaining agreement.
The Respondent’s actions constitute a repudiation of
the 2005–2008 collective-bargaining agreement.3
CONCLUSION OF LAW
By refusing to adhere to the terms of the 2005–2008
collective-bargaining agreement, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com-

2 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) of the
Act and that the Union is therefore the limited 9(a) representative of the
unit employees for the period covered by the contract. See, e.g., A.S.B.
Cloture, Ltd., 313 NLRB 1012 (1994).
3 The General Counsel requests, in the prayer for relief in the com-
plaint, that the Respondent be ordered to 1) make the unit employees
whole for the difference owed to them between the wage rates that
should have been paid under the 2005–2008 collective-bargaining
agreement and the wage rates actually paid, with interest compounded
quarterly; 2) make all the payments to the various fringe benefit funds,
including all liquidated damages; and 3) file the required monthly
fringe benefit reports not yet filed with the fringe benefit funds. The
General Counsel’s request is granted, except as set forth in fns. 4 and 5,
in order to remedy the Respondent’s repudiation of the agreement.
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.4
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 actions designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by refusing to comply with the terms and condi-
tions of the 2005–2008 collective-bargaining agreement,
thereby repudiating the agreement, we shall order the
Respondent to adhere to the collective-bargaining
agreement with the Union. In addition, in order to rem-
edy the repudiation of the agreement, we shall order the
Respondent to (1) make the unit employees whole for the

4 The prayer for relief in the complaint requests that the Respondent
make all payments to the various fringe benefit funds but does not
identify what those funds are. The General Counsel’s motion, how-
ever, indicates that these fringe benefit funds are described in adden-
dum III of the collective-bargaining agreement as follows: vaca-
tion/savings, miscellaneous and work assessment deductions which
consist of dues and the youth-to-youth fund, health and welfare, pen-
sion, a second health plan entitled 401H, International Training Insti-
tute (ITI) which implements apprenticeship training programs, National
Energy Management Institute (NEMI) which funds and creates appren-
ticeship programs, Sheet Metal Occupational Health Institute Trust
(SMOIT) which funds and creates health and safety programs, and the
Industry Fund which funds the contractor’s organizations.
With respect to the “miscellaneous and work assessment deductions
which consist of dues and the youth-to-youth fund” neither the com-
plaint nor the motion describes the type of dues or what the “youth-to-
youth fund” is. In addition, the Industry Fund appears to be an industry
advancement fund. The Board has held that certain types of benefit
funds are permissive subjects of bargaining for which no remedy would
be warranted. See, e.g., Finger Lakes Plumbing & Heating Co., 254
NLRB 1399 (1981) (industry advancement fund). Because there is no
indication here as to the nature of the “miscellaneous and work assess-
ment deductions,” and because the Industry Fund appears to be an
industry advancement fund, we decline to find that the Respondent
violated the Act by refusing to make these contributions. Accordingly,
the General Counsel’s request that the Respondent be ordered to make
these payments is denied, and the matter is remanded to the Regional
Director for further appropriate action. See Nick & Bob Partners, 340
NLRB 1196 fn. 2 (2003) (default judgment denied as to allegation that
respondent failed to bargain over decision to close business); St. Regis
Hotel, 339 NLRB 143, 144 fn. 3 (2003) (default judgment denied as to
information request for “other matters important to the Union”); Michi-
gan Inn, 340 NLRB 983, 989 (2003) (complaint not well pleaded if too
vague to determine whether a violation occurred). Nothing herein will
require a hearing if, in the event of an appropriate amendment to the
complaint, the Respondent again fails to answer, thereby admitting
evidence that would permit the Board to find the alleged violation. In
such circumstances, the General Counsel may renew the motion for
default judgment with respect to the amended complaint allegations.
See, e.g., Cray Construction Group LLC, 341 NLRB 944 (2004).
Although Member Liebman agrees with former Member Walsh’s
dissenting opinion in Cray Construction Group, she acknowledges that,
in contrast to the situation presented in Cray Construction Group, the
complaint involved here does not allege that the funds at issue are
mandatory subjects of bargaining.
ABS HEATING & COOLING 3
difference owed to them between the wage rates that
should have been paid under the 2005–2008 collective-
bargaining agreement and the wage rates actually paid,5
(2) make all the payments to the fringe benefit funds,
including all liquidated damages as required by the col-
lective-bargaining agreement and any additional amounts
due the funds in accordance with Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979);6 and 3) file the
required monthly fringe benefit reports not yet filed with
the fringe benefit funds.
The Respondent shall also reimburse unit employees
for any expenses ensuing from its failure to make the
required contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Brian David Sanderson d/b/a ABS Heating
and Cooling, Linden, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
with Local 7, Sheet Metal Workers International Asso-
ciation, AFL–CIO, as the limited exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All employees engaged in the fabrication, erection, in-
stallation, repairing, replacing and servicing of all resi-
dential heating and air conditioning systems and the ar-
chitectural sheet metal work of such residences; and all
employees engaged in the fabrication, erection, installa-
tion, repairing, replacing and servicing of all jobs con-
sisting of 20 tons of light commercial work.
(b) Failing to comply with the terms and conditions of
the 2005–2008 collective-bargaining agreement between

5 In the complaint’s prayer for relief, the General Counsel seeks “in-
terest compounded quarterly” for any difference in wage rates owing to
the unit employees. Having duly considered the matter, we are not
prepared at this time to deviate from our current practice of assessing
simple interest. See, e.g., Rogers Corp., 344 NLRB 504 (2005).
6 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions to the various fringe benefit
funds during the period of the delinquency, the Respondent will reim-
burse the employee, but the amount of such reimbursement will consti-
tute a setoff to any amount that the Respondent otherwise owes the
fund.
the Flint Area Association of Sheet Metal Contractors
and the Union, thereby repudiating the agreement.
(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.
(a) On request, recognize and bargain collectively and
in good faith with the Union as the limited exclusive col-
lective-bargaining representative of the unit employees.
(b) Comply with the terms and conditions of employ-
ment of the unit employees contained in the 2005–2008
collective-bargaining agreement between the Flint Area
Association of Sheet Metal Contractors and the Union.
(c) Make whole the unit employees for the difference
owed to them between the wage rates that should have
been paid under the 2005–2008 collective-bargaining
agreement and the wage rates actually paid, as set forth
in the remedy section of this decision.
(d) Make all the contractually-required payments that
have not been paid to the fringe benefit funds, as set forth
in the remedy section of this decision and file the re-
quired monthly fringe benefit reports not yet filed with
the fringe benefit funds.
(e) 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.
(f) Within 14 days after service by the Region, post at
its facility in Linden, Michigan, copies of the attached
notice marked “Appendix.”7 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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-

7 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
plicate 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 May 30, 2007.
(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-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 7, 2008
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, 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 vio-
lated 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 refuse to bargain collectively and in good
faith with Local 7, Sheet Metal Workers International
Association, AFL–CIO, as the limited exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All employees engaged in the fabrication, erection, in-
stallation, repairing, replacing and servicing of all resi-
dential heating and air conditioning systems and the ar-
chitectural sheet metal work of such residences; and all
employees engaged in the fabrication, erection, installa-
tion, repairing, replacing and servicing of all jobs con-
sisting of 20 tons of light commercial work.
WE WILL NOT fail to comply with the terms and condi-
tions of the 2005–2008 collective-bargaining agreement
between the Flint Area Association of Sheet Metal Con-
tractors and the Union.
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, on request, recognize and bargain collec-
tively and in good faith with the Union as the limited
exclusive collective-bargaining representative of the unit
employees.
WE WILL comply with the terms and conditions of em-
ployment of the unit employees contained in the 2005–
2008 collective-bargaining agreement.
WE WILL make whole the unit employees for the differ-
ence owed to them between the wage rates that should
have been paid under the 2005–2008 collective-
bargaining agreement and the wage rates actually paid,
with interest.
WE WILL make all the contractually required payments
that have not been paid to the fringe benefit funds, with
interest, and WE WILL file the required monthly fringe
benefit reports not yet filed with the fringe benefit funds.
BRIAN DAVID SANDERSON D/B/A ABS HEATING
AND COOLING