L.M. Insulating Contractors

National Labor Relations Board - Board Decisions

Nov 23, 1994

315 N.L.R.B. 626 (N.L.R.B. 1994)

626
315 NLRB No. 85
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
L.M. Insulating Contractors, Inc., L.M. Insulating
Contractors, Inc. d/b/a L.M. Insulating Con-
tractors and Supply Company, Larry
Minnifield d/b/a L.M. Insulating Contractors
and Larry Minnifield d/b/a L.M. Insulation
Supplies and International Association of Heat
and Frost Insulators and Asbestos Workers
Local 23, AFL–CIO. Cases 4–CA–21918 and 4–
CA–22045
November 23, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon charges and amended charges filed by Inter-
national Association of Heat and Frost Insulators and
Asbestos Workers Local 23, AFL–CIO (the Union) on
July 23 and September 2 and 28, 1993, the General
Counsel of the National Labor Relations Board issued
a consolidated complaint on April 29, 1994, against
L.M. Insulating Contractors, Inc., L.M. Insulating Con-
tractors, Inc., d/b/a L.M. Insulating Contractors and
Supply Company, Larry Minnifield d/b/a L.M. Insulat-
ing Contractors and Larry Minnifield d/b/a L.M. Insu-
lation Supplies (the Respondents), alleging that they
have violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Although properly served with
copies of the charges and consolidated complaint, the
Respondents failed to file an answer.
On July 18, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On July
25, 1994, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respond-
ents 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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the consolidated
complaint affirmatively notes that unless an answer is
filed within 14 days of service, all the allegations in
the consolidated complaint will be considered admit-
ted. Further, the undisputed allegations in the Motion
for Summary Judgment disclose that the Region, by
letter dated June 22, 1994, notified the Respondents
that unless an answer were received by July 8, 1994,
a Motion for Summary Judgment would be filed.
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
At all material times, L.M. Contractors, Inc. has
been a Pennsylvania corporation engaged in the con-
struction industry as an insulation contractor with a fa-
cility located in Harrisburg, Pennsylvania. On about
December 5, 1991, L.M. Contractors, Inc. registered
with the Commonwealth of Pennsylvania to conduct
business under the fictitious name L.M. Insulating and
Supply Company.
At all material times, Larry Minnifield, a sole pro-
prietor, has been engaged in the construction industry
as an insulation contractor with a facility located in
Harrisburg, Pennsylvania. On about September 21,
1987, and October 16, 1990, respectively, Larry
Minnifield registered with the Commonwealth of Penn-
sylvania to conduct business under the fictitious names
L.M. Insulating Contractors and L.M. Insulation Sup-
plies.
During the time period material here, L.M. Contrac-
tors, Inc. and/or Larry Minnifield as a sole proprietor
have also done business as L.M. Insulating Contractors
and Supply, Inc., L.M. Insulating Contractors, L.M. In-
sulating and Supplies, Inc., L.M. Insulation and Sup-
ply, Inc., L.M. Insulation Contractors, Inc., L&M Insu-
lating Contractors and L.M. Insulating & Supply, Inc.
At all material times, L.M. Contractors, Inc., Larry
Minnifield as a sole proprietor, and the other entities
referred to above (Respondents) have been affiliated
business enterprises with common officers, ownership,
directors, management and supervision; have adminis-
tered a common labor policy; have shared common
premises and facilities; have provided services for, and
made sales to, each other; have interchanged personnel
with each other; and have held themselves out to the
public as a single integrated business enterprise.
Based on the operations described above, the Re-
spondents constitute a single integrated business enter-
prise and a single employer within the meaning of the
Act.
During the 12-month period ending August 31,
1993, the Respondents, in conducting the business op-
erations described above, provided services valued in
excess of $50,000 for the McClure Company within
the Commonwealth of Pennsylvania. The McClure
Company, a Pennsylvania corporation, with an office
and place of business in Harrisburg, Pennsylvania, is
engaged in the construction industry as a mechanical
contractor doing plumbing, heating, air-conditioning,
and industrial process piping work.
627L.M. INSULATING CONTRACTORS
1 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or 8(f), Mem-
ber Browning would not reach that issue.
2 For reasons stated in his concurring opinion in J. E. Brown Elec-
tric, Member Stephens would not include a reinstatement order.
During the 12-month period ending on August 31,
1993, the McClure Company purchased and received
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania and was
directly engaged in interstate commerce.
We find that the Respondents are employers en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In about August 1990, the Respondents, employers
engaged in the building and construction industry as
described above, granted recognition to the Union as
the exclusive collective-bargaining representative of a
unit of the Respondents’ employees (the unit), by en-
tering into a collective-bargaining agreement (the
agreement) with the Union for the period from August
1, 1990, to July 31, 1993, without regard to whether
the majority status of the Union had ever been estab-
lished under Section 9(a) of the Act. The unit de-
scribed in article XII of the agreement has at all mate-
rial times been appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act. For the period from August 1, 1990, to July
31, 1993, based on Section 9(a) of the Act, the Union
has been the limited exclusive collective-bargaining
representative of the unit.1
Since about January 24, 1993, the Respondents have
failed to continue in effect all the terms and conditions
of the agreement by: (i) hiring employees not referred
by the Union in violation of article VII of the agree-
ment; (ii) failing to make payments to the Union
Health and Welfare Fund, Pension Fund, Annuity Fund
and Vacation Fund as required by article X of the
agreement; and (iii) failing to participate in proceed-
ings of the Trade Board and to comply with Trade
Board decisions as required by article V of the agree-
ment.
Although the terms and conditions of employment
described above are mandatory subjects for the pur-
poses of collective bargaining, the Respondents en-
gaged in the conduct described above without the
Union’s consent.
On about April 19, 1993, the Respondents, by letter,
withdrew their recognition of the Union as the limited
exclusive collective-bargaining representative of the
unit.
On about April 28, 1993, the Union requested that
the Respondents furnish it with all payroll records for
the period from April 1, 1990, through April 28, 1993,
along with copies of all contracts or agreements for
work entered into by the Respondents during the same
period.
The information requested by the Union, is nec-
essary for, and relevant to, the Union’s performance of
its duties as the limited exclusive collective-bargaining
representative of the unit.
Since about April 28, 1993, the Respondents have
failed and refused to furnish the Union with the infor-
mation it requested.
CONCLUSION OF LAW
By the conduct described above, the Respondents
have been failing and refusing to bargain collectively
with the limited exclusive bargaining representative of
their employees, and have thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondents have violated
Section 8(a)(5) and (1) by failing since January 24,
1993, to continue in effect provisions contained in arti-
cles V, VII, and X of the agreement dealing with refer-
rals from the Union, benefit fund payments, and Trade
Board proceedings, we shall order the Respondents to
honor those provisions of the agreement.
In accordance with our decision in J. E. Brown
Electric, 315 NLRB No. 84 (issued today), we shall
order the Respondent to offer immediate and full em-
ployment to those applicants who would have been re-
ferred to the Respondent for employment by the Union
were it not for the Respondent’s unlawful conduct, and
to make them whole for any loss of earnings and other
benefits they may have suffered by reason of the Re-
spondent’s failure to hire them. Backpay is to be com-
puted 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).
Reinstatement and backpay issues will be resolved by
a factual inquiry at the compliance stage of the pro-
ceeding. J. E. Brown Electric, supra.2
Further, we shall order the Respondent to make
whole its unit employees, and those employees who
would have been referred, by making all delinquent
fringe benefit fund contributions owed since January
24, 1993, including any additional amounts due the
funds in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979). In addition, the
Respondent shall reimburse unit employees, and those
628 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.’’
employees who would have been referred, for any ex-
penses ensuing from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), such amounts 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 Re-
tarded, supra.
In addition, having found that the Respondents un-
lawfully withdrew recognition from the Union on April
19, 1993, we shall order the Respondents to recognize
the Union as the limited exclusive bargaining rep-
resentative of the unit employees.
Finally, having found that the Respondents have un-
lawfully failed to furnish the Union information it re-
quested on April 28, 1994, we shall order the Re-
spondents to furnish the Union with the information
requested.
ORDER
The National Labor Relations Board orders that the
Respondents, L.M. Insulating Contractors, Inc., L.M.
Insulating Contractors, Inc., d/b/a L.M. Insulating Con-
tractors and Supply Company, Larry Minnifield d/b/a
L.M. Insulating Contractors and Larry Minnifield d/b/a
L.M. Insulation Supplies, Harrisburg, Pennsylvania,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to recognize and bargain with the Inter-
national Association of Heat and Frost Insulators and
Asbestos Workers Local 23, AFL–CIO as the limited
exclusive collective-bargaining representative of the
employees in the unit described in article XII of the
agreement, by hiring employees not referred by the
Union in violation of article VII; failing to make pay-
ments to the Union Health and Welfare Fund, Pension
Fund, Annuity Fund and Vacation Fund as required by
article X; failing to participate in the proceedings and
comply with the decisions of the Trade Board pursuant
to article V of the agreement; withdrawing recognition
from the Union; and failing and refusing to furnish the
Union with requested information that is relevant to,
and necessary for, the performance of its duties as the
limited exclusive representative of the unit employees.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize the Union as the limited exclusive
collective-bargaining representative of the unit employ-
ees.
(b) Honor articles V, VII, and X of the agreement
regarding referrals from the Union, benefit fund pay-
ments, and Trade Board proceedings.
(c) Offer immediate and full employment to those
applicants who would have been referred to the Re-
spondent for employment by the Union were it not for
the Respondent’s unlawful conduct, and make them
whole for any loss of earnings and other benefits suf-
fered by reason of the Respondent’s failure to hire
them, in the manner set forth in the remedy section of
this decision.
(d) Make whole unit employees, and employees who
would have been referred, by making all delinquent
fringe benefit fund contributions owed since January
24, 1993, and reimburse all such employees for any
expenses ensuing from the Respondent’s failure to
make the required contributions, in the manner set
forth in the remedy section of this decision.
(e) Furnish the Union with the information it re-
quested on April 28, 1993.
(f) 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.
(g) Post at its facility in Harrisburg, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(h) 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 or refuse to recognize and bargain
with the International Association of Heat and Frost
Insulators and Asbestos Workers Local 23, AFL–CIO
629L.M. INSULATING CONTRACTORS
as the limited exclusive collective-bargaining rep-
resentative of the employees in the unit described in
article XII of the agreement, by hiring employees not
referred by the Union in violation of article VII; failing
to make payments to the Union Health and Welfare
Fund, Pension Fund, Annuity Fund and Vacation Fund
as required by article X; failing to participate in the
proceedings and comply with the decisions of the
Trade Board pursuant to article V of the agreement;
withdrawing recognition from the Union; and failing
and refusing to furnish the Union with requested infor-
mation that is relevant to, and necessary for, the per-
formance of its duties as the limited exclusive rep-
resentative 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 recognize the Union as the limited exclu-
sive collective-bargaining representative of the unit
employees.
WE WILL honor articles V, VII, and X of the agree-
ment regarding referrals from the Union, benefit fund
payments, and Trade Board proceedings.
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 the our
unlawful conduct, and make them whole for any loss
of earnings and other benefits suffered by reason of
our failure to hire them, with interest.
WE WILL make whole unit employees, and employ-
ees who would have been referred, by making all de-
linquent fringe benefit fund contributions owed since
January 24, 1993, and reimburse all such employees
for any expenses ensuing from our failure to make the
required contributions, with interest.
WE WILL furnish the Union with the information it
requested on April 28, 1993.
L.M. INSULATING CONTRACTORS, INC.,
L.M. INSULATING CONTRACTORS, INC.
D/B/A L.M. INSULATING CONTRACTORS
AND SUPPLY COMPANY, LARRY MINNI-
FIELD D/B/A L.M. INSULATING CON-
TRACTORS AND LARRY MINNIFIELD
D/B/A L.M. INSULATION SUPPLIES