WRH Mechanical, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 202 (N.L.R.B. 1999)

327 NLRB No. 202
1
NOTICE: This opinion is subject to formal revision before publication in the
Board 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.
WRH Mechanical, Inc. and North Star Heating & Air
Conditioning and Sheet Metal Workers Interna-
tional Association Local Union No. 85, AFL–
CIO. Case 10–CA–31172
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
Upon a charge filed by the Union on August 26, 1998,1
the General Counsel of the National Labor Relations
Board issued a complaint on January 29, 1999, against
WRH Mechanical, Inc. (WRH) and North Star Heating
& Air Conditioning (North Star), collectively referred to
as the Respondent, alleging that it has violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act.
Although properly served copies of the charge and com-
plaint, the Respondent failed to file an answer.
On March 5, 1999, the General Counsel filed a Motion
for Summary Judgment with the Board. On March 10,
1999, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent 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, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated February 18, 1999, notified the Respondent
that unless an answer were received by February 25,
1999, a Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following

1 The General Counsel’s motion indicates that the charge was served
by registered mail to the Respondent’s last known address and was not
returned by the Postal Service. The failure of communications sent by
ordinary mail to be returned to the Regional Office by the Postal Serv-
ice indicates actual service. Lite Flight, Inc., 285 NLRB 649, 650
(1987).
FINDINGS OF FACT
I. JURISDICTION
At all times material, WRH and North Star have been
affiliated business enterprises with common officers,
ownership, directors, management, and supervision; have
formulated and administered a common labor policy af-
fecting employees of the operations; have shared com-
mon premises and facilities; and have interchanged per-
sonnel with each other. At all material times, WRH, a
Georgia corporation, with an office and place of business
located in Snellville, Georgia, has been engaged in the
installation of commercial heating, ventilation, and air-
conditioning systems. At all material times, North Star, a
Georgia corporation, with an office and place of business
located in Snellville, Georgia, has been engaged in the
installation of commercial and residential heating, venti-
lation, and air-conditioning systems. By virtue of their
operations described above, WRH and North Star con-
stitute a single integrated business enterprise and are a
single employer within the meaning of the Act.
During the 12-month period preceding the issuance of
the complaint, WRH and North Star, in the course and
conduct of their operations, have purchased at their
Snellville, Georgia location goods, products, and materi-
als valued in excess of $50,000 directly from suppliers
located outside the State of Georgia.
We find that the Respondent is an employer engaged
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
The Respondent and the Union are parties to a collec-
tive-bargaining agreement effective August 1, 1997, to
July 31, 2000, encompassing, inter alia, rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of certain employees.
All employees of the Respondent performing the work
described in article 1, section 1, of the collective-
bargaining agreement referred to above, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
At all material times, the Union, by virtue of Section
9(a) of the Act has been, and is, the exclusive represen-
tative of the employees in the unit for the purpose of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
On or about February 26, 1998, the Respondent laid
off its employee Onnie Rubbin Mosley.
The Respondent engaged in the described above, in
furtherance of its plan to rid its workforce of union
members so as to repudiate its collective-bargaining re-
lationship with the Union.
Since about February 26, 1998, the Respondent has re-
pudiated and failed to honor the terms of the collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
bargaining agreement and imposed terms and conditions
of employment which are inconsistent with the terms of
that agreement.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has been discriminating in regard to the hire, or ten-
ure, or terms and conditions of employment of employ-
ees and has failed and refused to bargain collectively and
in good faith with the representative of its employees,
and has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1), (3),
and (5) and 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 has violated Section 8(a)(3)
and (1) by laying off Onnie Rubbin Mosley, we shall
order the Respondent to offer the discriminatee full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed, and to make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
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). The Respondent
shall also be required to remove from its files any and all
references to the unlawful discharges, and to notify the
discriminatee in writing that this has been done.
Furthermore, specifically having found that the Re-
spondent violated Section 8(a)(5) and (1) by repudiating
and failing to honor the terms of the 1997–2000 agree-
ment and imposing terms and conditions of employment
which are inconsistent with the terms of the agreement,
we shall order the Respondent to recognize and, on re-
quest, bargain with the Union, and to comply with all the
terms of 1997–2000 agreement with the Union. The Re-
spondent shall also make whole its unit employees by
providing all contractual benefits and making contractu-
ally required benefit payments or contributions, includ-
ing any additional amounts applicable to such delinquent
payments as determined pursuant to Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 (1979). In addition, the
Respondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make such required
payments or contributions, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2. (1980), enfd. 661 F.2d
940 (9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
632 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons for the Retarded,
supra.2
ORDER
The National Labor Relations Board orders that the
Respondent, WRH Mechanical, Inc. and North Star
Heating & Air Conditioning, Snellville, Georgia, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees in furtherance of its plan to
rid its work force of union members so as to repudiate
the collective-bargaining relationship between the Re-
spondent and Sheet Metal Workers International Asso-
ciation Local Union No. 85, AFL–CIO, which is the ex-
clusive bargaining representative of the employees in the
unit.
(b) Failing and refusing to recognize and bargain with
the Union, by repudiating and failing to honor the terms
of the 1997–2000 collective-bargaining agreement, and
imposing terms and conditions of employment which are
inconsistent with the terms of that agreement.
(c) In any like or related manner interfering with, re-
straining, 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) Within 14 days from the date of this Order, offer
Onnie Rubbin Mosley immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
(b) Make Onnie Rubbin Mosley whole for any loss of
earnings or other benefits suffered as a result of the dis-
crimination against him, with interest, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoff of On-
nie Rubbin Mosley, and within 3 days thereafter notify
him in writing that this has been done and that the layoff
will not be used against him in any way.
(d) Comply with the terms and conditions of the 1997–
2000 agreement by making all contractually required
payments or contributions and make whole the unit em-
ployees for any loss of benefits or expenses ensuing from
its failure, since February 26, 1998, to provide these
benefits, with interest, as set forth in the remedy section
of this decision.

2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the respondent other-
wise owes the fund.
WRH MECHANICAL, INC. 3
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Snellville, Georgia, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 26, 1998.
(g) 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. March 31, 1999
John C. Truesdale, Chairman
Peter J. Hurtgen, Member
J. Robert Brame III, Member
(SEAL) 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 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.”
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT lay off employees in furtherance of our
plan to rid our work force of union members so as to
repudiate the collective-bargaining relationship between
us and Sheet Metal Workers International Association
Local Union No. 85, AFL–CIO, which is the exclusive
bargaining representative of the employees in the unit.
WE WILL NOT fail and refuse to recognize and bargain
with the Union, by repudiating and failing to honor the
terms of the 1997–2000 collective-bargaining agreement,
and imposing terms and conditions of employment which
are inconsistent with the terms of that agreement.
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, within 14 days from the date of this Order,
offer Onnie Rubbin Mosley immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Onnie Rubbin Mosley whole for any
loss of earnings or other benefits suffered as a result of
the discrimination against him, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful lay-
off of Onnie Rubbin Mosley, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the layoff will not be used against him in any
way.
WE WILL comply with the terms and conditions of the
1997–2000 agreement by making all contractually re-
quired payments or contributions retroactive to February
26, 1998, and WE WILL make whole the unit employees
for any loss of benefits or expenses ensuing from our
failure, since February 26, 1998, to provide these bene-
fits, with interest.
WRH MECHANICAL, INC. AND NORTH STAR
HEATING & AIR CONDITIONING