Advanced Mechanical Corp.

National Labor Relations Board - Board Decisions

Feb 9, 1994

313 N.L.R.B. 629 (N.L.R.B. 1994)

629
313 NLRB No. 89
ADVANCED MECHANICAL CORP.
1 Although the Region’s October 13, 1993 letter was returned by
the Postal Service on November 2, 1993, with a notice that the Re-
spondent had moved and left no forwarding address, the Respond-
ent’s failure to provide for appropriate service cannot serve to defeat
the purposes of the Act. See National Automatic Sprinklers, 307
NLRB 481 fn. 1 (1992).
Advanced Mechanical Corporation and Enterprise
Association Metal Trades Branch of Local 638,
United Association of Journeymen and Pipe-
fitting Industry of the United States and Can-
ada, AFL–CIO. Case 29–CA–17219
February 7, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a charge filed on March 15, 1993, by Enter-
prise Association Metal Trades Branch of Local 638,
United Association of Journeymen and Pipefitting In-
dustry of the United States and Canada, AFL–CIO (the
Union), the General Counsel of the National Labor Re-
lations Board issued a complaint on April 20, 1993,
against Advanced Mechanical Corporation (the Re-
spondent) alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent failed to file an answer.
On December 10, 1993, the General Counsel filed a
Motion for Summary Judgment with the Board. On
December 15, 1993, the Board issued an order trans-
ferring 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 Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that on October 13, 1993, the Region sent a letter
notifying the Respondent that an answer had not been
filed and that unless an answer was received by close
of business on November 1, 1993, a Motion for Sum-
mary Judgment would be filed.1
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent, a New York
corporation, with its principal office and place of busi-
ness located at 253 East Merrick Road, Village of
Freeport, County of Nassau, State of New York, has
been engaged in nonretail air conditioning, heating,
and refrigeration installation and repair. During the 12-
month period preceding the issuance of the complaint,
the Respondent, in the course and conduct of its busi-
ness operations, performed services valued in excess of
$50,000 for various enterprises located in the State of
New York, each of which enterprises, in turn, is di-
rectly engaged in interstate commerce and meets a
Board standard for the assertion of jurisdiction, exclu-
sive of indirect inflow or indirect outflow.
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 the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All refrigeration, air conditioning and oil burning
maintenance and installation mechanics, employed
by Respondent at its Freeport facility, excluding
all other employees, business office clerical em-
ployees, guards and supervisors as defined by the
Act.
At all times material, the Union has been the exclu-
sive collective-bargaining representative of the Re-
spondent’s employees in the unit for the purpose of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment, and has been recognized as
such representative by the Respondent. Such recogni-
tion has been embodied in successive collective-bar-
gaining agreements, the most recent of which is effec-
tive by its terms for the period July 1, 1989, through
June 30, 1992.
At all times material, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive rep-
resentative of the employees in the unit for the purpose
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.
The collective-bargaining agreement contains, inter
alia, provisions requiring the Respondent to make
monthly contributions on behalf of the unit employees
to the Trustees of the Welfare Fund of the Metal
Trades Branch Enterprise Association, Local Union
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Industry promotion and education funds are generally permissive
subjects of bargaining for which no remedy would normally be war-
ranted in this proceeding. See Finger Lakes Plumbing & Heating
Co., 254 NLRB 1399 (1981), and cases cited there. However, as the
record here fails to indicate the purpose(s) of the Service Fitters In-
dustry Promotional and Educational Funds, we shall leave this issue
to compliance.
3 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
638, to the Trustees of the Metal Trades Branch, Local
Union 638, Pension Fund, to the Service Fitters Indus-
try Promotional Fund of New York, and to the Service
Fitters Industry Educational Fund (the funds).
From in or about February 1992, until in or about
September 1992, the Respondent failed and refused to
comply with the provisions of the collective-bargaining
agreement by failing to make contributions to the
funds.
On or about September 19, 1992, the Union and the
Respondent negotiated an agreement whereby the Re-
spondent agreed to pay all monies due and owing to
the funds, in four monthly installments and to extend
the collective-bargaining agreement to October 31,
1992.
In or about October 1992, the Respondent failed and
refused to comply with the provisions of the collective-
bargaining agreement by failing to make current con-
tributions to the funds.
In or about November 1992, the Respondent
changed the terms and conditions of employment of its
employees in the bargaining unit by ceasing to make
any current payments to the funds, and since said date
the Respondent has continued to fail and refuse to
make such payments.
Since in or about December 1992, the Respondent
has failed and refused to make the monthly retroactive
fund payments required by its agreement with the
Union.
The Respondent engaged in the conduct described
above unilaterally and without bargaining with, or ob-
taining the agreement of, the Union.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing, its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has failed and refused, and
is failing and refusing, to bargain collectively with the
representative of its employees, thereby engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing and refusing to make
required contributions to various benefit funds, we
shall order the Respondent to make whole its unit em-
ployees by making all such delinquent contributions,
including any additional amounts due the funds in ac-
cordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from its failure to make the required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 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 inter-
est as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).2
ORDER
The National Labor Relations Board orders that the
Respondent, Advanced Mechanical Corporation, Free-
port, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to make required contribu-
tions to various benefit funds on behalf of employees
in the following unit:
All refrigeration, air conditioning and oil burning
maintenance and installation mechanics, employed
by Respondent at its Freeport facility, excluding
all other employees, business office clerical em-
ployees, guards and supervisors as defined by the
Act.
(b) In any like or related manner interfering with,
restraining, 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) Make all required contributions to the various
benefit funds on behalf of the unit employees, and
make the unit employees whole for any loss of benefits
or expenses resulting from its unlawful failure to do so
as set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Freeport, New York, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
631ADVANCED MECHANICAL CORP.
the notice, on forms provided by the Regional Director
for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to make required con-
tributions to various benefit funds on behalf of em-
ployees in the following unit:
All refrigeration, air conditioning and oil burning
maintenance and installation mechanics, employed
by us at our Freeport facility, excluding all other
employees, business office clerical employees,
guards and supervisors as defined by 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 make all required contributions to the var-
ious benefit funds on behalf of unit employees, and WE
WILL make the unit employees whole for any loss of
benefits or expenses resulting from our unlawful fail-
ure to do so.
ADVANCED MECHANICAL CORPORATION