Finger Lakes Plumbing & Heating Co.

National Labor Relations Board - Board Decisions

Mar 16, 1981

254 N.L.R.B. 1399 (N.L.R.B. 1981)

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et ab, 404 157,
(1971): Ladish Co., McColl
(1968); Axelson. Inc.. o/ I n c .
(1978); Peerless PublIcations Inc. (Potls~own
FINGER LAKES HEATING CO. 1399
Finger Lakes Plumbing Heating Co., Inc. arrd
United Association of Journeymen and
tices of the Plumbing and Pipefitting Industry
of the United States and Canada, Local Union
No. 13. Case 3-CA-9262
March 16, 1981
SUPPLEMENTAL DECISION AND

ORDER

On November 9, 1980, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding1 in which it adopted the
findings, conclusions, and recommendations of the
Administrative Law Judge as contained in his De-
cision of June 18, 1980, and ordered Respondent to
take the action set forth in the Administrative Law
Judge's recommended Order, as modified by the
Board. Specifically, in addition to the other reme-
dial measures recommended by the Administrative
Law Judge and adopted by the Board, and in order
to fully remedy Respondent's unlawful
of payments of contractually mandated contri-
butions for certain fringe benefits, we ordered Re-
spondent to pay all delinquent contractually man-
dated contributions to such fringe benefit funds, to-
gether with contractually mandated liquidated
damages for such delinquent contributions, and to
continue to pay such contributions until such time
as Respondent negotiates in good faith with the
Union to a new agreement or to an impasse.
The fringe benefit funds to which Respondent
was ordered to pay such contributions were the
Group Insurance Plan, Pension Plan, Apprentice-
ship Training and Education Fund, Journeyman
Education Training Fund, Mechanical Contractors
Industry Advancement Program, Vacation Fund,
Holiday Fund, and Annuity Fund.
On December 11, 1980, Respondent filed a
"Motion for Reconsideration and Reopening of the
Record," requesting that the Board set aside the
above-described aspect of its Order as being puni-
tive rather than remedial, and further requesting
that the Board reopen the record to take evidence
relating to whether those requirements of the
Board's Order in question are punitive rather than
remedial.
On January 9, 1981, the Charging Party filed a
response in opposition to Respondent's motion.
The matters presented by Respondent in support
of its contention that the above-described aspects
of the Board's Order should be rescinded as being
punitive rather than remedial are the same matters
Respondent raised before the Board in its brief in
response to the Charging Party's exceptions to the
253 N L R B No. 49
254 NLRB No. 182
Administrative Law Judge's failure to provide for
such a in his recommended Order. The
Board considered and rejected those matters in
finding merit in the Charging Party's exceptions
and in thus modifying the Administrative Law
Judge's recommended Order as described above.
Thus, Respondent's motion is hereby denied to the
extent that it raises matters previously considered
and resolved by the Board in this case.
However, for the first time in this proceeding,
Respondent also contends in its motion that it
should specifically not be required to pay any de-
linquent or future contributions to the Mechanical
Contractors Industry Advancement Program fund
on the grounds that said fund is a nonmandatory,
permissive subject of bargaining. For the reasons
discussed below, we find merit in this contention of
Respondent. Thus, we grant Respondent's motion
for reconsideration to this limited extent.
Industry advancement funds, also known as in-
dustry funds or industry promotions funds, are per-
missive, nonmandatory subjects of It is
not an unfair labor practice for an employer to
refuse to bargain over a permissive, nonmandatory
subject of nor is it an unfair labor
practice for an employer unilaterally to make a
change in a permissive, nonmandatory subject of
bargaining.'
Thus, on reconsideration, we shall modify our
original Order by deleting the requirement that Re-
spondent make delinquent and future payments to
the- Mechanical Contractors Industry Advancement
Program fund.
have set out our Orders, as so modified, in
full below, and have substituted the attached notice
for the notice which is attached as an appendix to
our Decision and Order.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Finger Lakes Plumbing Heating Co., Inc.,
Sheet Metal Workers International Local Union 38
Sheet Metal Works, 231 N L R B 699 (1977); Detroit Resil-
ient Floor Decorators Local Union No. 2265 the United Brotherhood of
Carpenters and Joiners of America, A F L - C I O (Mil l Covering.
136 N L R B 769 (1962).
v . Division of Corp., 356 U.S. 342, 349
(1958).
Allied Chemical Alkali Workers of America. Local I v .
Pittsburgh Plate Glass. Chemical Division. U.S. 185-188
cf. 219 N L R B 354 (1975); Corporation, 172
N L R B 540 Subsidiary U S . Industries, 234
N L R B 414 see also Mercury).
231 N L R B 244 (1977); The Capital Times Company. 223 N L R B 651
(1976).
253 N L R B NO. 49
14(X) LABOR
1976-79),
~ourneymen
organization againit
8(a)(3)
backpay
VII
10
2(d)
jobsites,
"Appendi~ ."~
In
Relat~ons shall "Posted
Un~ted Courr
Natlonal
DECISIONS OF NATIONAL RELATIONS BOARD
Geneva, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Unlawfully withdrawing recognition from
United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the
United States and Canada, Local Union No. 13, as
the exclusive collective-bargaining representative
of employees in the below-listed appropriate bar-
gaining unit, refusing to bargain collectively with
said Union, and from making unilateral changes, all
with respect to rates of pay, wages, benefits, hours,
and other terms and conditions-of employment of
employees in the below-listed appropriate bargain-
ing unit:
All plumbers, steamfitters and pipefitters em-
ployed by Respondent in commercial jobs (as
more completely described in the contract it
had with said Union for excluding
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
(b) Discouraging membership in United Associ-
ation of and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada. Local Union No. 13, or anv
other labor by discriminating
its employees, laid-off employees, or applicants for
employment through the imposition of illegal con-
ditions of employment or by otherwise discriminat-
ing against any of its employees in regard to hire,
tenure, or conditions of their employment.
(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act,
except to the extent that such rights may] be affect-
ed by lawful agreements in accord with Section
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Offer Kenneth Akens, Kenneth Page, and
John Armstrong immediate and full instatement to
the positions they would have been instated absent
the discrimination against them or, if such positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them and all employees employed on and
after May 31, 1979, whole for any loss of pay or
other benefits suffered by reason of the discrimina-
tion against them in the manner described in the
section entitled "The Remedy" in the Administra-
tive Law Judge's Decision in 253 NLRB No. 49.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of due under the terms of this
Order.
(d) In accordance with the terms set out in arti-
cle VII of the May 1, 1976-May 31, 1979, collec-
tive-bargaining agreement between the parties, pay
all delinquent contributions since June 1979 to the
following funds or plans: Group Insurance Plan,
Pension Plan, Apprenticeship Training and Educa-
tion Fund, Journeyman Education Training Fund,
Vacation Fund, Holiday Fund, and Annuity Fund;
and continue to pay such contributions until such
time as Respondent negotiates in good faith with
the Union to a new agreement or to an impasse.
(e) In accordance with the terms set out in arti-
cle of the aforementioned collective-bargaining
agreement, pay into the above-specified funds, as
liquidated damages, an additional sum amounting
to percent of the delinquent contributions due
those funds pursuant to paragraph of this
Order.
(f) Post at Respondent's place of business in
Geneva, New York, and all copies of the
attached notice marked Copies of
said notice, on forms provided by the Regional Di-
rector for Region 3, after being duly signed by Re-
spondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that all allegations of
unlawful conduct not specifically found to be vio-
lative herein be, and they hereby are, dismissed.
In the event that this Order is enforced by a Judgment of a United
States Court o f Appeals. the words the notice reading "Posted by
Order o f the Notional Labor Roard" read Pursu-
ant to a Judgment o f the States o f Appeals Enforcing an
Order o f the Lobar Relations Board."
&
;f
condi-
WILL
1976-79),
8(a)(3)
repre-
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WILL
collective-
All
8(a)(3)
FINGER LAKES PLUMBING HEATING CO. 1401
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government
WE NOT make unilateral changes con-
cerning rates of pay, wages, benefits, hours,
and other terms and conditions of employment
of employees in the below-listed approriate
bargaining unit, nor will we otherwise refuse
to bargain collectively with or unlawfully
withdraw recognition from United Association
of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United
States and Canada, Local Union No. 13, as the
exclusive representative of the employees in
the bargaining unit described below:
All plumbers, steamfitters and pipefitters em-
ployed by us in commercial jobs (as more
completely described in the contract we had
with said Union for excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT discourage membership in the
above-named Union, or in any other labor or-
ganization, by discriminating against employ-
ees, laid-off employees, or applicants for em-
ployment through the imposition of illegal
conditions of employment or by otherwise dis-
criminating against any of our employees in
regard to hire, tenure, or conditions of their
employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act, except to the extent that such
rights may be affected by lawful agreements in
accordance with Section of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive
sentative of all employees in the bargaining
unit described abovk with respect to rates
pay, wages, hours, and other terms and
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WILL offer Kenneth Akens, Kenneth
Page, and John Armstrong immediate and full
instatement to the positions they would have
been instated absent the discrimination against
them or, if such positions no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed, and make them
and all employees hired on and after May 31,
1979, whole, with interest, for any loss of pay
or other benefits suffered by reason of the dis-
crimination against them.
WE NOT in accordance with the terms
of the May 1, 1976-May 31, 1979,
bargaining agreement between us and the
Union, pay all deliquent contributions since
June 1979 to the following funds or plans:
Group Insurance Plan, Pension Plan, Appren-
ticeship Training and Education Fund, Jour-
neyman Education Training Fund, Vacation
Fund, Holiday Fund, and Annuity Fund.
WE WILL continue to pay such contributions
until such time as we negotiate in good faith
with the Union to a new agreement or to an
impasse.
WE WILL also pay into those funds and
plans, as liquidated damages, an additional sum
amounting to 10 percent of the delinquent con-
tributions due on those funds and plans.
of our employees are free to become or
remain, or refrain from becoming or remaining,
members of any labor organization, except to the
extent provided by Section of the Act.