Clayton Plumbing

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 583 (N.L.R.B. 1992)

583
306 NLRB No. 110
CLAYTON PLUMBING CORP.
Clayton Plumbing Corporation and Plumbers Local
Union No. 68, affiliated with United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL–CIO. Case 16–
CA–15159
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
Upon charges filed by the Union, Plumbers Local
Union No. 68, affiliated with United Association of
Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada,
AFL–CIO, on July 31 and August 30, 1991, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint and an amendment to the complaint
against Clayton Plumbing Corporation, the Respond-
ent, alleging that it has violated Section 8(a)(1), (3),
and (5) and Section 8(d) of the National Labor Rela-
tions Act. Although properly served copies of the
charges, the complaint, and the amendment to the
complaint, the Respondent has failed to file an answer.
On November 12, 1991, the General Counsel filed
a Motion for Summary Judgment. On November 19,
1991, the Board issued an order transferring the pro-
ceeding 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 Summary 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. The complaint states that unless an answer
is filed within 14 days of service ‘‘all of the allega-
tions in the Complaint shall be deemed to be admitted
to be true and may be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that the Respondent was sent,
by certified mail, a letter dated October 3, 1991, stat-
ing that unless it filed an answer by October 15, 1991,
counsel for the General Counsel would file a Motion
for Summary Judgment with the Board. On October 8,
1991, the Respondent’s registered agent for service of
process notified counsel for the General Counsel of a
post office box address to which all documents relating
to this proceeding should be directed. On that same
date counsel for the General Counsel sent to the Re-
spondent at the designated post office address, by cer-
tified mail, copies of the amended charge, the com-
plaint, and the letter concerning the necessity for filing
an answer. Finally, on October 22, 1991, the Respond-
ent was sent by regular and certified mail, copies of
the original charge, the amended charge, the complaint,
the amendment to the complaint, and a letter stating
that if no answers were filed by November 5, 1991,
summary judgment proceedings would be commenced.
These documents were sent to the Respondent at three
different addresses, including the post office box num-
ber designated by the Respondent’s registered agent.
Copies of the documents sent to two of the addresses
were returned to the Regional Office marked ‘‘Moved,
left no address’’ and ‘‘Undeliverable as addressed, for-
warding order expired,’’ while return receipt cards
were received from those mailed to the post office box
address.
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
The Respondent, a State of Texas corporation, is en-
gaged in the business of providing plumbing services
with its principal place of business in Houston, Texas.
In the course of its business, the Respondent has per-
formed services valued in excess of $50,000 for Spaw
Glass, a Texas corporation engaged in the construction
industry, which has itself performed services valued in
excess of $50,000 in states other than the State of
Texas. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 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
Pursuant to a prehire arrangement embodied in a
collective-bargaining agreement effective from October
1, 1988, to September 30, 1991, and at all times mate-
rial in this proceeding, the Union has been the des-
ignated exclusive collective-bargaining representative
of the Respondent’s employees in the following appro-
priate unit:
All Journeymen and Apprentice Plumbers, exclud-
ing all other employees, guards, watchmen and
supervisors as defined in the Act.
Since about July 23, 1991, the Respondent has failed
and refused to hire applicants for employment who are
members of the Union by advertising for an experi-
enced ‘‘non-union’’ plumber in the daily newspaper,
the Houston Post. The Respondent so styled its em-
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s obligation to recognize the Union and abide by
the contract terms ended with the agreement’s expiration on Sep-
tember 30, 1991. Because recognition was granted pursuant to a
prehire agreement, and there is no allegation that the Union subse-
quently achieved majority status, the bargaining relationship between
the Respondent and the Union is governed by Sec. 8(f) of the Act.
See generally, John Deklewa & Sons, 282 NLRB 1375 (1987).
2 Ibid.
3 We leave to compliance the identification of individuals who
have suffered losses as a result of the Respondent’s repudiation of
contract terms.
ployment advertisement because applicant members of
the Union joined, supported, or assisted the Union and
in order to discourage employees from engaging in
such activities or other protected concerted activities.
In addition, since about April 1, 1991, the Respondent
has failed to pay all contractually mandated contribu-
tions to the Union’s pension and welfare funds. Fur-
ther, since about July 23, 1991, the Respondent has
bypassed the contractually mandated exclusive hiring
hall and has obtained employees from outside the hir-
ing hall. By these actions the Respondent has repudi-
ated and refused to abide by the collective-bargaining
agreement then in effect with the Union.
On the basis of the foregoing uncontested allega-
tions, we find that the Respondent has been engaging
in unfair labor practices within the meaning of Section
8(a)(5), (3), and (1) and Section 8(d) of the Act.
CONCLUSIONS OF LAW
1. By failing to pay, since about April 1, 1991, all
contractually mandated contributions to the Union’s
pension and welfare funds, and by bypassing, since
about July 23, 1991, the contractually mandated exclu-
sive hiring hall and obtaining employees from sources
outside the hiring hall, the Respondent has violated
Section 8(a)(5) and (1) and Section 8(d) of the Act.
2. By placing an advertisement about July 23, 1991,
seeking only ‘‘non-union’’ employees to apply for jobs
at its facility, the Respondent has violated Section
8(a)(3) and (1) of the Act.
3. The above 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
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.
Having found that the Respondent has unlawfully
repudiated and refused to abide by the collective-bar-
gaining agreement’s requirement to make contributions
to the Union’s pension and welfare funds, we shall
order it to make the payments it should have made into
the appropriate funds, with interest or other sums ap-
plicable to the payments to be computed in accordance
with the Board’s decision in Merryweather Optical
Co., 240 NLRB 1213 (1979).1 We shall also order the
Respondent to make whole any employees who may
have suffered losses as a result of its failure to make
the contractually required fund contributions, Kraft
Plumbing, 252 NLRB 891 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981), to be computed in the man-
ner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest calculated in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent has refused to
hire union members and has bypassed a contractually
mandated hiring hall and obtained employees from
outside the hiring hall,2 we shall order it to cease and
desist from such action and to make whole any indi-
viduals who were denied employment because of the
Respondent’s failure to follow the contractual hiring
hall procedure, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons, supra.3
ORDER
The National Labor Relations Board orders that the
Respondent, Clayton Plumbing Corporation, Houston,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Repudiating and refusing to abide by the terms
of the then effective collective-bargaining agreement
by failing to make the required contributions to the
pension and welfare funds.
(b) Repudiating and refusing to abide by the terms
of the then effective collective-bargaining agreement
by bypassing the contractually mandated exclusive hir-
ing hall and obtaining employees from outside the hir-
ing hall.
(c) Discriminating against union members by seek-
ing ‘‘non-union’’ applicants for employment.
(d) 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) Pay all delinquent pension and welfare fund con-
tributions and reimburse employees for any losses at-
tributable to the withholding of those contributions in
the manner set forth in the remedy section of this deci-
sion.
(b) Make whole any employees who were denied
employment because of its failure to follow the con-
tractual hiring hall procedures, with interest as set forth
in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
585CLAYTON PLUMBING CORP.
4 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.’’
cards, personnel records and reports, all records con-
cerning the above-mentioned contractual provisions
and the funds they describe, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Houston, Texas facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the
notice, on forms provided by the Regional Director for
Region 16, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon 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.
(e) 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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail to pay into contractually man-
dated union pension and welfare funds.
WE WILL NOT bypass a contractually mandated
union hiring hall in hiring employees.
WE WILL NOT refuse to hire employees because they
are members of 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 transmit to the Union’s pension and wel-
fare funds those contributions we unlawfully withheld
pursuant to the collective-bargaining agreement with
the Union.
WE WILL make whole any employees who suffered
losses as a result of our failure to make the contrac-
tually required contributions into the Union’s pension
and welfare funds, with interest.
WE WILL make whole any employees who were de-
nied employment as a result of our failure to follow
the contractually required hiring hall procedures, with
interest.
CLAYTON PLUMBING CORPORATION