Catskill Mountain Mechanical Corp.

National Labor Relations Board - Board Decisions

Nov 5, 2008

353 N.L.R.B. 46 (N.L.R.B. 2008)

353 NLRB No. 46
Catskill Mountain Mechanical Corp. and its alter ego,
Plant Maintenance Services, Inc. and Iron
Workers Local Union No. 12, AFL–CIO. Case 3–
CA–26213
November 5, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks summary judgment1 in this
case on the ground that the Respondent has withdrawn its
answers to the complaint. Upon a charge and an
amended charge filed by the Union on February 28 and
April 23, 2007, respectively, the General Counsel issued
the complaint on June 25, 2007, against Catskill Moun-
tain Mechanical Corp. (Respondent Catskill Mountain)
and its alter ego Plant Maintenance Services, Inc. (Re-
spondent Plant Maintenance), collectively called the Re-
spondent, alleging that it has violated Section 8(a)(5),
(3), and (1) of the Act. On July 9, 2007, Respondent
Catskill Mountain and Respondent Plant Maintenance
filed separate answers and, on March 21, 2008, separate
amended answers to the complaint. On April 8, 2008,
the General Counsel filed a Motion for Summary Judg-
ment. On June 30, 2008, the Board denied the Motion
for Summary Judgment.2 Thereafter, on August 25,
2008, by separate letters, Respondent Catskill Mountain
and Respondent Plant Maintenance withdrew their an-
swers.
On September 12, 2008, the General Counsel filed an-
other Motion for Summary Judgment with the Board.
On September 17, 2008, 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 Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
Ruling on Motion for Default Judgment3
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be

1 The General Counsel’s motion requests summary judgment on the
ground that Respondent Catskill Mountain and Respondent Plant Main-
tenance have withdrawn their answers to the complaint. Accordingly,
we construe the General Counsel’s motion as a motion for default
judgment.
2 352 NLRB No. 101.
3 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.
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 states
that unless the answer was received by the Regional Of-
fice on or before July 9, 2007, the Board may find that
the allegations in the complaint are true. Although Re-
spondent Catskill Mountain and Respondent Plant Main-
tenance filed separate answers and amended answers to
the complaint, those answers were subsequently with-
drawn. The withdrawal of an answer has the same effect
as a failure to file an answer, i.e., the allegations in the
complaint must be considered to be true.4
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 Catskill Mountain, a
limited liability corporation with its principal place of
business located at 19 Coons Road, Coeymans, New
York, and a place of business located at 13880 State
Route 92, West Coxsackie, New York, has been engaged
in the building and construction industry as a contractor
serving the cement and other industries.
At all material times, Respondent Plant Maintenance, a
corporation, with its place of business located at 13880
State Route 92, West Coxsackie, New York, has been
engaged in the building and construction industry as a
contractor serving the cement and other industries.
At all material times, Respondent Catskill Mountain
and Respondent Plant Maintenance have had substan-
tially identical management, business purpose, opera-
tions, equipment, customers, as well as ownership.
On about a date presently unknown in September
2006, Respondent Plant Maintenance was established by
Respondent Catskill Mountain as a subordinate instru-
ment to and a disguised continuation of Respondent
Catskill Mountain.
Based on its operations described above, Respondent
Plant Maintenance and Respondent Catskill Mountain
constitute a single-integrated business and have been at
all material times alter egos and a single employer within
the meaning of the Act.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $100,000 and purchased and received at its
office and jobsites located in the State of New York
goods valued in excess of $50,000 from other enter-

4 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
prises, including Greene Equipment Rentals, Northeast
Gas Technologies, and Kivort Steel, each of which other
enterprises had received these goods directly from out-
side the State of New York.
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 Iron Workers Local Union No. 12,
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, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and are agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Brenda Shields Owner/Director—Respondent
Catskill Mountain
Martin Shields Manager—Respondent Catskill
Mountain;
Owner and Manager—Respon-
dent Plant Maintenance
Robert Austin Human Resources/Safety Offi-
cer—Respondent Catskill
Mountain;
Operations Manager/Human
Resources Officer—Respon-
dent Plant Maintenance
Orville Boehkle Supervisor—Respondent Cats-
kill Mountain;
Supervisor—Respondent Plant
Maintenance
Paul Bendick Field Operations Manager—
Respondent Catskill Mountain
The following employees (the unit) constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All journeymen and apprentices iron workers em-
ployed by Respondent in the geographical jurisdic-
tional area of the Union; excluding all other employees,
office clericals, guards and supervisors as defined in the
Act.
On April 9, 2004, Respondent Catskill Mountain, an
employer engaged in the construction industry, granted
recognition to the Union as the limited exclusive collec-
tive-bargaining representative of the unit by signing a
letter of assent agreeing to be bound to the collective-
bargaining agreement between the Union and Upstate
Iron Workers Employer’s Association, Inc., effective
May 1, 2003, to April 30, 2006, and any successor
agreements, including the collective-bargaining agree-
ment effective May 1, 2006, to April 30, 2009, without
regard to whether the majority status of the Union has
ever been established under the provisions of Section 9
of the Act.
At all material times, based on Section 9(a) of the Act,
the Union has been, and will be, the limited exclusive
collective-bargaining representative of the unit.5
On about December 7, 2006, at the Lafarge Cement
jobsite in Ravena, New York, the Respondent, by Paul
Bendick, informed employees that they were being laid
off because Respondent Catskill Mountain was abrogat-
ing its collective-bargaining agreement with the Union
and would no longer employ members of the Union.
On about December 7, 2006, the Respondent laid off
the following named employees: Liam Haley, Vernon
Moore, and Clifton Winchester.
The Respondent engaged in the conduct described
above because the named employees joined and assisted
the Union and engaged in concerted activities and to dis-
courage employees from engaging in these activities.
Since about October 2006, the Respondent has ceased
to continue in force and effect the collective-bargaining
agreement effective May 1, 2006, to April 30, 2009 re-
ferred to above, and has unilaterally abrogated, re-
scinded, and repudiated the collective-bargaining agree-
ment.
About December 4, 2006, in writing, the Union re-
quested the Respondent to provide information, set forth
in appendix A, concerning the relationship between Re-
spondent Catskill Mountain and Respondent Plant Main-
tenance. The information requested by the Union is rele-
vant and necessary to the Union’s performance of its
duties as the limited exclusive collective-bargaining rep-
resentative of the unit. Since about December 4, 2006,
the Respondent has failed to furnish the information.
CONCLUSIONS OF LAW
1. By the acts and conduct described above, the Re-
spondent has been interfering with, restraining, and co-
ercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
2. By the acts and conduct described above, the Re-
spondent has been discriminating in regard to the hire,

5 The complaint alleges that Respondent Catskill Mountain is a con-
struction industry 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 con-
tract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012 (1994).
CATSKILL MOUNTAIN MECHANICAL CORP. 3
tenure, or terms or conditions of employment of its em-
ployees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
3. By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain collec-
tively with the limited exclusive collective-bargaining
representative of its employees, in violation of Section
8(a)(5) and (1) of the Act.
The unfair labor practices of the Respondent described
above 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. Specifically, having
found that the Respondent has violated Section 8(a)(3)
and (1) by laying off Liam Haley, Vernon Moore, and
Clifton Winchester on December 7, 2006, because they
joined and assisted the Union and engaged in concerted
activities and to discourage employees from engaging in
these activities, we shall order the Respondent to offer
Haley, Moore, and Winchester full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their seniority
or any other rights or privileges previously enjoyed. Fur-
ther, the Respondent shall make Liam Haley, Vernon
Moore, and Clifton Winchester whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent
shall also be required to expunge from its files any and
all references to the unlawful layoffs of Liam Haley,
Vernon Moore, and Clifton Winchester, and to notify
them in writing that this has been done and that the
unlawful layoffs will not be used against them in any
way.
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act since October
2006 by failing to continue in force and effect the terms
and conditions of the May 1, 2006, to April 30, 2009
collective-bargaining agreement with the Union and by
unilaterally abrogating, rescinding, and repudiating the
agreement, we shall order the Respondent to honor the
terms and conditions of the agreement with the Union,
and any automatic renewal or extension of it. We shall
also order the Respondent to make whole its unit em-
ployees for any loss of earnings and other benefits which
they have suffered as a result of the Respondent’s failure
to continue in effect all the terms of the agreement. Such
amounts are 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 interest as prescribed
in New Horizons for the Retarded, supra.
We shall also order the Respondent to make all con-
tractually required benefit fund contributions that have
not been made since October 2006, including any addi-
tional amounts due the funds in accordance with Merry-
weather Optical Co., 240 NLRB 1213, 1216 fn. 6 (1979).
The Respondent shall 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, 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981). Such amounts are to be computed in the
manner set forth in Ogle Protection Service, supra, with
interest as prescribed in New Horizons for the Retarded,
supra.6
Further, in order to remedy the Respondent’s failure to
utilize the Union’s hiring hall since October 2006, as
required by the May 1, 2006, to April 30, 2009 collec-
tive-bargaining agreement, we shall order the Respon-
dent to offer immediate and full employment to those
applicants who would have been referred to the Respon-
dent for employment by the Union were it not for the
Respondent’s unlawful conduct, and to make them whole
for any losses suffered by reason of the Respondent’s
failure to hire them.7 Backpay is to be computed in ac-
cordance with F. W. Woolworth Co., supra, with interest
as prescribed in New Horizons for the Retarded, supra.
Reinstatement and backpay issues will be resolved by a
factual inquiry at the compliance stage of the proceeding.
J. E. Brown Electric, supra.
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to provide the Union
with information that is necessary and relevant to its role
as the limited exclusive bargaining representative of the
unit employees, we shall order the Respondent to furnish
the Union with the information it requested in its letter of
December 4, 2006.

6 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
7 We leave to the compliance stage the determination of which, if
any, employees fall into this category.
In this regard, Chairman Schaumber does not now decide issues
concerning the validity of J. E. Brown Electric, 315 NLRB 620 (1994).
See concurring opinions in J. E. Brown, and in Coulter’s Carpet, 338
NLRB 732 (2002). See also dissenting opinions in M. J. Wood, 325
NLRB 1065, 1068 fn. 9 (1998), and Baker Electric, 317 NLRB 335,
336 fn. 4 (1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
ORDER
The National Labor Relations Board orders that the
Respondent, Catskill Mountain Mechanical Corp. and its
alter ego, Plant Maintenance Services, Inc., Coeymans
and West Coxsackie, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Informing employees that they are being laid off
because Respondent Catskill Mountain was abrogating
its May 1, 2006, to April 30, 2009 collective-bargaining
agreement with the Union and that Respondent Catskill
Mountain would no longer employ members of the Un-
ion.
(b) Laying off employees because they form, join, or
assist the Union, or any other labor organization, or en-
gaged in concerted activities, or to discourage employees
from engaging in these activities.
(c) Failing and refusing to bargain collectively and in
good faith with the Iron Workers Local Union No. 12,
AFL–CIO as the limited exclusive collective-bargaining
representative of the employees in the following unit by
failing to continue in effect all of the terms and condi-
tions of the May 1, 2006, to April 30, 2009 collective-
bargaining agreement with the Union, and by unilaterally
abrogating, rescinding, and repudiating the collective-
bargaining agreement. The appropriate unit is:
All journeymen and apprentices iron workers em-
ployed by Respondent in the geographical jurisdic-
tional area of the Union; excluding all other employees,
office clericals, guards and supervisors as defined in the
Act.
(d) Failing to furnish the Union with information that
is necessary and relevant to its role as the limited exclu-
sive collective-bargaining representative of the unit em-
ployees.
(e) 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) Within 14 days from the date of this Order, offer
Liam Haley, Vernon Moore, and Clifton Winchester full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed.
(b) Make whole Liam Haley, Vernon Moore, and
Clifton Winchester for any loss of earnings and other
benefits suffered as a result of their unlawful layoffs,
with interest, in the manner set forth in the remedy sec-
tion of this Decision.
(c) Within 14 days from the date of this Order, remove
from its files all references to the unlawful layoffs of
Liam Haley, Vernon Moore, and Clifton Winchester, and
within 3 days thereafter, notify them in writing that this
has been done and that the unlawful layoffs will not be
used against them in any way.
(d) Continue in force and effect all the terms and con-
ditions of the May 1, 2006, to April 30, 2009 collective-
bargaining agreement with the Union as the limited ex-
clusive collective-bargaining representative of the unit
employees.
(e) Make whole the unit employees for any loss of
earnings and benefits suffered as a result of the Respon-
dent’s unlawful conduct, with interest, in the manner set
forth in the remedy section of this Decision.
(f) Offer immediate and full employment to those ap-
plicants who would have been referred to the Respondent
for employment by the Union were it not for the Respon-
dent’s unlawful conduct, and make them whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s failure to hire them, with interest, in
the manner set forth in this decision.
(g) Furnish the Union with the information it requested
in its letter of December 4, 2006.
(h) 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.
(i) Within 14 days after service by the Region, post at
its facilities in Coeymans and West Coxsackie, New
York, copies of the attached notice marked “Appendix
B.”8 Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent 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 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 Respondent has gone out of business or

8 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.”
CATSKILL MOUNTAIN MECHANICAL CORP. 5
closed the facility involved in these proceedings, the Re-
spondent shall duplicate 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 December 4, 2006.
(j) 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.
APPENDIX B
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 inform employees that they are being
laid off because we abrogated our collective-bargaining
agreement with the Union and that we would no longer
employ members of the Union.
WE WILL NOT lay off employees because they form,
join, or assist the Union, or any other labor organization,
or engaged in concerted activities, or to discourage em-
ployees from engaging in these activities.
WE WILL NOT fail to bargain collectively and in good
faith with the Iron Workers Local Union No. 12, AFL–
CIO as the limited exclusive collective-bargaining repre-
sentative of the employees in the following unit by fail-
ing to continue in effect all of the terms and conditions of
the May 1, 2006, to April 30, 2009 collective-bargaining
agreement with the Union, and unilaterally abrogating,
rescinding, and repudiating said collective-bargaining
agreement. The appropriate unit is:
All journeymen and apprentices iron workers em-
ployed by us in the geographical jurisdictional area of
the Union; excluding all other employees, office cleri-
cals, guards and supervisors as defined in the Act.
WE WILL NOT fail to furnish the Union with informa-
tion that is necessary and relevant to its role as the lim-
ited exclusive collective-bargaining representative of the
unit employees.
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, within 14 days from the date of this Order,
offer Liam Haley, Vernon Moore, and Clifton Winches-
ter full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges previously enjoyed.
WE WILL make Liam Haley, Vernon Moore, and
Clifton Winchester whole for any loss of earnings and
other benefits suffered as a result of their unlawful lay-
offs, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files all references to the unlawful lay-
offs of Liam Haley, Vernon Moore, and Clifton Win-
chester, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
unlawful layoffs will not be used against them in any
way.
WE WILL continue in force and effect all the terms and
conditions of the May 1, 2006, to April 30, 2009 collec-
tive-bargaining agreement with the Union as the limited
exclusive collective-bargaining representative of the unit
employees.
WE WILL make whole the unit employees for any loss
of earnings and benefits suffered as a result of our unlaw-
ful conduct, with interest.
WE WILL offer immediate and full employment to
those applicants who would have been referred to us for
employment by the Union were it not for our unlawful
conduct, and make them whole for any loss of earnings
and other benefits suffered as a result of our failure to
hire them, with interest.
WE WILL furnish the Union with the information it re-
quested in its letter of December 4, 2006.
CATSKILL MOUNTAIN MECHANICAL CORP. AND
ITS ALTER EGO, PLANT MAINTENANCE
SERVICES, INC.