Local Lodge S-76 of the International Association of Machinists & Aerospace Workers, DL-1, AFL-CIO

National Labor Relations Board - Board Decisions

Nov 8, 2012

359 NLRB No. 17 (N.L.R.B. 2012)

359 NLRB No. 17
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Local Lodge S-76 of the International Association of
Machinists & Aerospace Workers, DL-1, AFL–
CIO and South Jersey Energy Service Plus.
Case 04–CB–083627
November 8, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
The Acting General Counsel seeks default judgment in
this case on the ground that the Respondent has failed to
file an answer to the complaint. Upon a charge and an
amended charge filed by South Jersey Energy Service
Plus (SJE) (the Employer) on June 21 and August 21,
2012, respectively, the Acting General Counsel issued a
complaint and notice of hearing on August 29, 2012,
against Local Lodge S-76 of the International Associa-
tion of Machinists & Aerospace Workers, DL-1, AFL–
CIO (the Respondent) alleging that it has violated Sec-
tion 8(b)(3) of the Act. The Respondent failed to file an
answer.
On September 24, 2012, the Acting General Counsel
filed a Motion for Default Judgment with the Board.
Thereafter, on September 28, 2012, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent filed no response. The allega-
tions 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that the answer must be received by the Regional Office
on or before September 12, 2012. Further, the undis-
puted allegations in the Acting General Counsel’s motion
disclose that the Region, by letter dated September 14,
2012, notified the Respondent that unless an answer was
received by September 21, 2012, a motion for default
judgment would be filed. Nevertheless, the Respondent
failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, SJE, a New Jersey corporation
with its offices in Folsom, New Jersey, has been a New
Jersey corporation engaged primarily in the residential
installation and repair of heating and air-conditioning
units and other appliance services.
During the 12-month period preceding issuance of the
complaint, SJE, in conducting its business operations
described above, received gross revenues in excess of
$500,000 and purchased and received at the warehouse
goods valued in excess of $50,000 directly from points
outside the State of New Jersey.
We find that SJE is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and that the Respondent Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions or acted in the capacity set forth opposite
their respective names and have been agents of the Re-
spondent within the meaning of Sections 2(13) and 8(b)
of the Act.
Daniel J. Chmelko–International Business Agent
Laurence G. Powell–President since December 2010
Brian Askins–President until December 2010
Jeannie Abbott–Recording Secretary
Shawn Garrity–Former Shop Steward
Bill Urban–Former Shop Steward
The following employees of SJE (the unit) constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
Appliance service technicians, appliance dispatch &
service representatives, installers, plumbers, helpers
and parts order entry clerks hired after April 15, 2003,
and appliance service technicians, AST inspectors, ap-
pliance dispatch service representatives and parts order
entry clerks who transferred from South Jersey Gas on
September 1, 2004.
At all material times, SJE has recognized the Respon-
dent as the exclusive collective-bargaining representative
of the unit. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which was effective by its terms from January 15,
2005, through January 14, 2009.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
At all material times, since at least January 15, 2005,
based on Section 9(a) of the Act, the Respondent Union
has been the exclusive collective-bargaining representa-
tive of the unit.
On about December 22 and 29, 2011, SJE and the Re-
spondent reached complete agreement (the contract),
containing the terms and conditions of employment of
the unit. The contract was effective by its terms from
October 27, 2009, through August 31, 2014.
On January 31, 2012, SJE emailed the contract to the
Respondent and requested that the Respondent execute
the contract.
Since about January 31, 2012, the Respondent has
failed and refused to execute the contract.
Since about February 1, 2012, the Respondent has
failed to respond to SJE’s request that it execute the con-
tract embodying the terms and conditions of employment
agreed to with SJE, as described above.
CONCLUSION OF LAW
By failing and refusing, since about January 31, 2012,
to execute the contract, and failing, since about February
1, 2012, to respond to SJE’s request that it execute the
contract, the Respondent has been failing and refusing to
bargain collectively and in good faith with the Employer
within the meaning of Section 8(d) of the Act in violation
of Section 8(b)(3) of the Act. The Respondent’s 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 cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(b)(3) of the
Act by failing, since about January 31, 2012, to execute
the contract, we shall order the Respondent to execute
and implement the contract and give retroactive effect to
its terms.
ORDER
The National Labor Relations Board orders that the
Respondent, Local Lodge S-76 of the International Asso-
ciation of Machinists & Aerospace Workers, DL-1,
AFL–CIO, Williamstown and Pitman, New Jersey, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to execute the complete
agreement (the contract), reached with South Jersey En-
ergy Service Plus (the Employer), on December 22 and
29, 2011, and effective by its terms from October 27,
2009, through August 31, 2014, containing the terms and
conditions of employment of the following unit employ-
ees:
Appliance service technicians, appliance dispatch &
service representatives, installers, plumbers, helpers
and parts order entry clerks hired after April 15, 2003,
and appliance service technicians, AST inspectors, ap-
pliance dispatch service representatives and parts order
entry clerks who transferred from South Jersey Gas on
September 1, 2004.
(b) Failing and refusing to respond to the Employer’s
request to execute the contract.
(c) In any like or related manner restraining or coerc-
ing 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) Immediately execute the contract.
(b) Give retroactive effect to the provisions of the con-
tract.
(c) Within 14 days after service by the Region, post at
its business office and meeting places, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
4, 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
and members are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
members by such means.2 Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Within 14 days after service by the Region, deliver
to the Regional Director for Region 4 signed copies of
the notice in sufficient numbers for posting by the Em-

1 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
2 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
MACHINISTS LODGE S-76 (SOUTH JERSEY ENERGY SERVICE PLUS) 3
ployer at its Folsom, New Jersey facility, if it wishes, in
all places where notices to employees are customarily
posted.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 8, 2012
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Brian E. Hayes, Member
______________________________________
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to execute the complete
agreement, the contract, reached with South Jersey En-
ergy Service Plus, the Employer, on December 22 and
29, 2011, and effective by its terms from October 27,
2009 through August 31, 2014, containing the terms and
conditions of employment of the following unit employ-
ees:
Appliance service technicians, appliance dispatch &
service representatives, installers, plumbers, helpers
and parts order entry clerks hired after April 15, 2003,
and appliance service technicians, AST inspectors, ap-
pliance dispatch service representatives and parts order
entry clerks who transferred from South Jersey Gas on
September 1, 2004.
WE WILL NOT fail and refuse to respond to the Em-
ployer’s request to execute the contract.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL immediately execute the contract.
WE WILL give retroactive effect to the provisions of the
contract.
LOCAL LODGE S-76 OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS & AEROSPACE
WORKERS, DL-1, AFL–CIO