Golden Plumbing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 1016 (N.L.R.B. 1993)

1016
312 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Indeed, the General Counsel notes in his Motion for Summary
Judgment that for the pension fund the instant complaint seeks to re-
cover payments for time periods not covered by the other judgment.
Golden Plumbing & Heating Co. Inc. and Local
217, United Association of Journeymen & Ap-
prentices of the Plumbing and Pipefitting In-
dustry. Case 1–CA–29181
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge and an amended charge filed by
Local United Association of Journeymen & Appren-
tices of the Plumbing and Pipefitting Industry (the
Union), the General Counsel of National Labor Rela-
tions Board issued a complaint on April 24 1992,
against Golden Plumbing & Heating Co., Inc. (the Re-
spondent), alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. About
May 13, 1992, Respondent filed an answer to the com-
plaint. About February 3, 1993, the Respondent filed
an amended answer to the complaint, in which it ad-
mitted the factual allegations in the complaint, but de-
nied that it committed any unfair labor practices, and
further asserted an affirmative defense.
On July 30, 1993, the General Counsel filed a mo-
tion transfer proceeding to the Board and for Summary
Judgment, with exhibits attached. On August 6, 1993,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent did not
file a response to the Board’s Notice to Show Cause.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that a respondent shall file an answer within
14 days from the service of the complaint. Section
102.20 further provides:
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial.
In the instant case, the Respondent filed an amended
answer in which it admitted each and every factual al-
legation in complaint. The Respondent accordingly ad-
mitted the complaint allegations that:
Since about September 11, 1991, Respondent has
failed to continue in effect all the terms and con-
ditions of the [parties’] 1991 [collective-bargain-
ing] agreement by failing and refusing to pay the
fringe benefit [funds] (pension, health and wel-
fare, annuity, and apprenticeship training and
building fund) and file the corresponding fringe
benefit reports as required by Section V of that
agreement. . . . Respondent engaged in the con-
duct described above . . . without the Union’s
consent.
Although the Respondent thus admitted that it engaged
in the conduct at issue in the complaint, it denied the
complaint allegations that by such conduct it engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act. Rather, the Respondent asserted the
following affirmative defense in its amended answer:
Respondent asserts that judgments have been ren-
dered in other jurisdiction[s] for monies alleged
by the complaint to be due and owing, and peti-
tioner is therefore precluded from bringing this
action with respect to those issues disposed of by
prior judgments.
We find meritless the Respondent’s affirmative de-
fense that the instant proceeding is precluded because
judgments have been rendered in other jurisdictions for
monies alleged by the instant complaint to be owing.
The General Counsel is not seeking an order to require
the Respondent to make a double payment into the
fringe benefit funds for any amounts for which the Re-
spondent has been ordered to make payment by a judg-
ment in another forum.1 The Order in this case shall
thus not require duplicative payment for any amounts
owing by the Respondent to the fringe benefit funds.
Because the Respondent has admitted all the factual al-
legations in the complaint, and as the Respondent has
raised no valid defense, we find all the allegations of
the complaint to be true and 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 Maine corporation with an office
and place of business in Portland, Maine, is engaged
as a plumbing and heating contractor. During the 12-
month period ending March 11, 1992, the Respondent,
in the conduct of its business operations, purchased
and received at its Maine facility goods valued in ex-
cess of $50,000 directly from points outside the State
of Maine. Based on the foregoing, we find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
We also find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1017GOLDEN PLUMBING CO.
2 Any additional amounts owed employee benefit funds shall be
determined in accordance with the procedure set forth in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
The Respondent shall not be required to pay the funds any
amounts which it has already paid pursuant to judgments rendered
in other jurisdictions for time periods covered by the instant com-
plaint.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union’s
Representative Status
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 full-time and regular part-time plumbers and
pipefitters employed by Respondent in the terri-
torial jurisdiction of Locals 217, 321, and 783,
United Association of Journeymen & Apprentices
of the Plumbing and Pipefitting Industry, but ex-
cluding all other employees, guards, and super-
visors as defined in the Act.
About August 1989, the Respondent, an employer
engaged in the building and construction industry,
granted recognition to the Union as the exclusive col-
lective-bargaining representative of the bargaining unit
employees by entering into a collective-bargaining
agreement with the Union for the period July 13, 1988,
through July 12, 1990. About July 15, 1991, the Re-
spondent and the Union entered into a collective-bar-
gaining agreement for the period from July 13, 1991,
until July 12, 1992, without regard to whether the ma-
jority status of the Union has ever been established
under the provisions of Section 9 of the Act.
The Respondent admits that for the period of July
13, 1991, until July 12, 1992, by virtue of Section 9(a)
of the Act, the Union has been the limited exclusive
collective-bargaining representative of the Respond-
ent’s employees in the above-described unit for the
purposes of collective bargaining with respect to rates
of pay, wages, hours, and other terms and conditions
of employment.
B. The Violations
Since about September 11, 1991, the Respondent
has failed to continue in effect all the terms and condi-
tions of the collective-bargaining agreement effective
from July 13, 1991, to July 12, 1992, by failing and
refusing to pay the Union’s fringe benefit funds—the
pension, health and welfare, annuity, and apprentice-
ship training and building funds—as required by that
agreement and by failing to file the corresponding
fringe benefit reports as required by section V of the
agreement. The Respondent engaged in the above-
decribed conduct without the Union’s consent, and
these terms and conditions of employment are manda-
tory subjects for the purpose of collective bargaining.
We find that by these acts, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By the conduct described above in the section enti-
tled ‘‘The Violations,’’ the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
THE 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. We shall
order the Respondent to remit to the Union’s pension
fund, health and welfare fund, annuity fund, and ap-
prenticeship training and building fund, the contribu-
tions required under the collective-bargaining agree-
ment effective from July 13, 1991, to July 12, 1992,
that the Respondent failed to make,2 and to file the
corresponding fringe benefit reports as required by sec-
tion V of that collective-bargaining agreement. The
Respondent shall also reimburse its employees for any
expenses ensuing from its failure to make contributions
to the funds, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). All payments to employees shall be
with interest computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The Natlonal Labor Relations Board orders that the
Respondent, Golden Plumbing & Heating Co., Inc.,
Portland, Maine, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and
conditions of the parties’ collective-bargaining agree-
ment by failing and refusing to make payments to the
Union’s pension fund, health and welfare fund, annuity
fund, and apprenticeship training and building fund, as
required by the parties’ collective-bargaining agree-
ment, and failing to file the corresponding frinqe bene-
fit reports as required by section V of the parties’ col-
lective-bargaining agreement.
(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.
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the Union’s pension fund, health
and welfare fund, annuity fund, and apprenticeship
training and building fund, for any payments required
by the collective-bargaining agreement effective from
July 13, 1991, to July 12, 1992, that the Respondent
failed to make, in the manner set forth in the remedy
section of this decision.
(b) Make whole unit employees for any losses re-
sulting from the Respondent’s failure to make fringe
benefit fund contributions, in the manner set forth in
the remedy section of this decision.
(c) File the appropriate fringe benefit reports as re-
quired by section V of the collective-bargaining agree-
ment.
(d ) 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.
(e) Post at its facility in Portland, Maine, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent’s
authorized 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.
(f) 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 to continue in effect all the terms
and conditions of our collective-bargaining agreement
by failing and refusing to make payments to the
Union’s pension fund, health and welfare fund, annuity
fund, and apprenticeship training and building fund, as
required by that agreement and WE WILL NOT fail to
file the corresponding fringe benefit reports as required
by section V of the collective-bargaining aqreement.
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 whole the Union’s pension fund,
health and welfare fund, annuity fund, and apprentice-
ship and building fund for the contractually required
payment we failed to make.
WE WILL make whole unit employees for any losses
resulting from our failure to make contractually re-
quired fringe benefit contributions.
WE WILL file the appropriate fringe benefit reports
as required by section V of our collective-bagaining
agreement.
GOLDEN PLUMBING & HEATING CO., INC.