FRASER ENGINEERING COMPANY, INC. AND FRASER PETROLEUM SERVICES, INC.

National Labor Relations Board - Board Decisions

Sep 9, 2016

01-CA-150746 (N.L.R.B. Sep. 9, 2016)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FRASER PETROLEUM SERVICES, INC. AND
FRASER ENGINEERING COMPANY, INC.,
a Single Employer
and Cases 01-CA-150746
01-CA-153888
LOCAL 537, PIPEFITTERS ASSOCIATION
OF BOSTON, a/w UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES
AND CANADA
DECISION AND ORDER
Statement of the Cases
On May 26, 2016, Fraser Petroleum Services, Inc. (Respondent FPS), Fraser
Engineering Company, Inc. (Respondent FEC) (collectively, the Respondent), Local
537, Pipefitters Association of Boston, a/w United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
(the Union), and the General Counsel of the National Labor Relations Board entered
into a Formal Settlement Stipulation, subject to the Board’s approval, providing for the
entry of a consent order by the Board and a consent judgment by any appropriate
United States Court of Appeals. The parties waived all further and other proceedings
before the Board to which they may be entitled under the National Labor Relations Act
and the Board’s Rules and Regulations, and the Respondent waived its right to contest
the entry of a consent judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the record,
and the proceeding is transferred to and continued before the Board in Washington,
D.C., for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
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Findings of Fact
1. The Respondent’s businesses
Respondent FPS is a Massachusetts corporation with an office and principal
place of business at 65 Court Street, Newton, Massachusetts (the FPS Newton
location), and it provides mechanical, maintenance, construction, and tank farm repair
services for customers in the petroleum industry.
Annually, in conducting its operations, Respondent FPS derives gross revenues
in excess of $500,000 and purchases and receives at the FPS Newton location goods
valued in excess of $50,000 directly from points outside the Commonwealth of
Massachusetts.
At all material times, Respondent FPS has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Respondent FEC is a Massachusetts corporation with an office and principal
place of business at 65 Court Street, Newton, Massachusetts (the FEC Newton
location), and it provides mechanical, plumbing, electrical, and HVAC services.
Annually, in conducting its operations, Respondent FEC derives gross revenues
in excess of $500,000 and purchases and receives at the FEC Newton location goods
valued in excess of $50,000 directly from points outside the Commonwealth of
Massachusetts.
At all material times, Respondent FEC has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times, Respondent FPS and Respondent FEC have been affiliated
business enterprises with common officers, ownership, directors, management, and
supervision; have formulated and administered a common labor policy; have shared
common premises and facilities (herein referred to as the Newton location); have
provided services for each other; have interchanged personnel with each other; have
had interrelated operations with common purchasing and sales, consolidated financial
reporting, common insurance policies, and shared equipment; and have held
themselves out to the public as a single integrated business enterprise.
Based on the operations described in the preceding paragraph, Respondent FPS
and Respondent FEC constitute a single integrated business enterprise and a single
employer within the meaning of the Act.
2. The labor organization involved
The Union is a labor organization within the meaning of Section 2(5) of the Act.
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ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that the Respondent, Fraser Petroleum Services,
Inc. (Respondent FPS) and Fraser Engineering Company, Inc. (Respondent FEC), as a
single employer, Newton, Massachusetts, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from
(a) Maintaining the following provisions of its Employee Handbook (Handbook):
Article VII, Work Conditions
L. Computer, Internet, and Internet Usage
1. General
. . .
2. Computer, Internet and E-mail Usage
. . .
The following behaviors are examples of previously stated or
additional actions and activities that are prohibited and can result
in disciplinary action:
. . .
ï‚· Sending anonymous email messages
Article VIII, Conduct/Disciplinary Action
A. Employee Conduct and Work Rules
. . .
The following are examples of infractions of rules of conduct that may
result in disciplinary action, up to and including termination of
employment:
. . .
any absence without prior notice or proper explanation.
(b) Threatening employees with job loss if they select the Union as their
collective-bargaining representative.
(c) Threatening employees with loss of work because they selected the Union as
their collective-bargaining representative.
(d) Failing or refusing to bargain with the Union in the following appropriate unit
before making any changes to employee wages, hours, benefits, or other working
conditions:
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All full-time and regular part-time pipefitters and welders, including
apprentices, and foremen employed by Fraser Petroleum Services, Inc. at
its Newton, Massachusetts facility but excluding all employees employed
by Fraser Engineering Company, Inc., electricians, all other crafts, office
clerical employees, managerial employees, guards, and supervisors as
defined in the Act.
(e) No longer assigning Respondent FPS employees to Respondent FEC jobs,
including Respondent FEC prevailing wage jobs, because of their Union support, and
failing and refusing to bargain with the Union to agreement or good-faith impasse before
changing the Respondent’s practice of assigning Respondent FPS employees to
Respondent FEC jobs, including prevailing wage jobs.
(f) Failing and refusing to bargain with the Union to agreement or good faith
impasse before laying off Unit employees.
(g) Interfering with employee rights in any similar manner under Federal law.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days of the Board’s Order, rescind or revise the Handbook rules
set forth in Paragraph 1(a) above.
(b) Make whole the following employees for the loss of pay and benefits they
suffered by reason of the alleged discrimination against them, by payment to them of
the amounts set forth opposite their respective names:
James Brogan, Jr. $18,636
William McHugh $12,567
Dennis Morse $25,268
(c) The Respondent has offered to recall James Brogan, Jr. and Dennis Morse
to their former positions. Dennis Morse accepted the recall offer on or about May 12,
2016. James Brogan, Jr. declined the recall offer.
(d) Provide the Union with prior notice and an opportunity to bargain to
agreement or good-faith impasse about any proposed changes to unit employees’
wages, hours, benefits, or other working conditions.
(e) Reinstate the Respondent’s practice of assigning Respondent FPS unit
employees to Respondent FEC jobs, including Respondent FEC prevailing wage jobs,
and continue that practice unless Respondent FPS bargains to agreement or good-faith
impasse with the Union.
(f) Provide the Union with prior notice and an opportunity to bargain to
agreement or good-faith impasse prior to laying off any unit employees.
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(g) Within 14 days of service by the Region, post at its Newton, Massachusetts
facility copies of the attached notice marked “Appendix A.” Copies of the notice, on
forms provided by Region 1, 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. The Respondent will take reasonable steps to ensure that the
notices are not altered, defaced, or covered by any other material.
(h) Within 21 days after service by the Region, file with the Regional Director for
Region 1 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., September 9, 2016.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Philip A. Miscimarra, Member
___________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT maintain or enforce Handbook rules which prevent you from sending
anonymous email messages and which provide for disciplinary action, up to and
including termination of employment, for any absence without prior notice or proper
explanation.
WE WILL NOT threaten employees with job loss if they select the Union as their
collective-bargaining representative.
WE WILL NOT threaten employees with loss of work because they selected the Union
as their collective-bargaining representative.
WE WILL NOT fail or refuse to bargain with the Union in the following appropriate unit
before making any changes to employee wages, hours, benefits, or other working
conditions:
All full-time and regular part-time pipefitters and welders, including
apprentices, and foremen employed by Fraser Petroleum Services, Inc. at
its Newton, Massachusetts facility but excluding all employees employed
by Fraser Engineering Company, Inc., electricians, all other crafts, office
clerical employees, managerial employees, guards, and supervisors as
defined in the Act.
WE WILL NOT stop assigning Fraser Petroleum Services, Inc. employees to Fraser
Engineering Company, Inc. jobs, including Fraser Engineering Company, Inc. prevailing
wage jobs, because of their Union support, and WE WILL NOT fail and refuse to
bargain with the Union to agreement or good-faith impasse before changing our practice
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of assigning Fraser Petroleum Services, Inc. employees to Fraser Engineering
Company, Inc. jobs, including Fraser Engineering Company, Inc. prevailing wage jobs.
WE WILL NOT fail or refuse to bargain with the Union to agreement or good-faith
impasse before laying off unit employees.
WE WILL NOT in any similar manner interfere with your rights under Section 7 of the
Act.
WE WILL revise or rescind Handbook rules which prevent you from sending
anonymous email messages and which provide for disciplinary action, up to and
including termination of employment, for any absence without prior notice or proper
explanation.
WE WILL pay James Brogan, Jr. for the wages and other benefits he lost because we
stopped assigning him to Fraser Engineering Company, Inc. jobs, including Fraser
Engineering Company, Inc. prevailing wage jobs, and because we laid him off.
WE WILL pay William McHugh for the wages and other benefits he lost because we
stopped assigning him to Fraser Engineering Company, Inc. jobs, including Fraser
Engineering Company, Inc. prevailing wage jobs.
WE WILL pay Dennis Morse for the wages and other benefits he lost because we laid
him off.
WE HAVE offered to recall James Brogan, Jr. and Dennis Morse to their former
positions. Dennis Morse accepted our recall offer on or about May 12, 2015. James
Brogan, Jr. declined our recall offer.
WE WILL provide the Union with prior notice and an opportunity to bargain about any
proposed changes to unit employees’ wages, hours, benefits, or other working
conditions.
WE WILL reinstate our practice of assigning Fraser Petroleum Services, Inc. employees
to Fraser Engineering Company, Inc. jobs, including Fraser Engineering Company, Inc.
prevailing wage jobs, and WE WILL continue that practice unless we bargain to
agreement or good-faith impasse with the Union.
WE WILL provide the Union notice and an opportunity to bargain to agreement or good-
faith impasse before laying off any unit employees.
FRASER PETROLEUM SERVICES, INC. AND
FRASER ENGINEERING COMPANY, INC.,
A Single Employer
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The Board’s decision can be found at www.nlrb.gov/case/01-CA-150746 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.