Morton L. Chait Plumbering Corp.

MORTON L. CHAIT PLUMBING CORP. Morton L. Chait Plumbing Corp. and Local Union No. 1 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Case 29-CA- 6265 November 8, 1978 DECISION AND ORDER By MEMBERS JENKINS, MURPHY. AND TRUESDALE Upon a charge filed on March 13, 1978,' by Local Union No. I of the United Association of Journey- men and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, herein called the Union, and duly served on Morton L. Chait Plumbing Corp., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, is- sued a complaint and notice of hearing on April 28 against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing be- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that Respondent has rec- ognized the Union as the collective-bargaining repre- sentative of its employees in an appropriate unit; that pursuant to a collective-bargaining agreement be- tween Respondent and the Union, which was entered into on December 6, 1976, and bears an expiration date of August 3, 1978, Respondent has agreed to keep its labor payrolls, job and time books, and com- pensation books available for joint inspection by rep- resentatives of the Union, the Contracting Plumbers Association of Brooklyn and Queens, Inc., herein called the Association, and the accountant of the Plumbers Industry Board, herein called the accoun- tant; that on or about November 4 and 10 and De- cember 23, 1977, the Union requested Respondent's permission to have the accountant conduct an audit of Respondent's above-described books and records, as provided in the aforesaid collective-bargaining agreement; and that since the first request by the Union, Respondent has refused and continues to re- fuse to permit an audit by the Union, the Associa- tion, and the accountant of such books and records. By such refusal, the complaint alleges, Respondent I All dates herein are in 1978 unless other'ise indicated has violated Section 8(a)(5) and (I) of the Act. Re- spondent failed to file an answer to the complaint. On August I, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subsequently. on August 7. the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter failed to file a response to the Notice To Show Cause, and therefore the allegations in the Mo- tion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions. Series 8, as amended, provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing issued on April 28, and served personally on Morton L. Chait. an officer and agent of Respondent, specifically states that unless an answer to the complaint is filed within 10 days of service thereof, "all the allegations in the Complaint shall be deemed to be admitted by [Respondent] to be true and may be so found by the Board." According to the uncontroverted allegations of the Motion for Summary Judgment, commencing on or about May 8 Respondent repeatedly ignored requests from counsel for the General Counsel to an- swer the complaint. On June 29, counsel for the Gen- eral Counsel notified Respondent's officer and agent. Morton L. Chait, that an answer to the complaint was overdue and advised that if an answer was not immediately forthcoming, a Motion for Summary 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judgment would be filed. Hie also informed Chair that if no answer were filed, all the allegations in the complaint could be deemed to be admitted to be true. By August 1, no answer had been filed, and, accordingly, counsel for the General Counsel sought summary judgment herein. On August 7, the Board, as noted, ordered the pro- ceeding herein transferred to it and gave notice that Respondent show cause on or before August 21 why the General Counsel's Motion for Summary Judg- ment should not be granted. To date, Respondent has failed to file a response to the Notice To Show Cause or an answer to the complaint. Under the rule set forth above, no good cause hav- ing been shown for Respondent's failure to answer, the allegations of the complaint are deemed admitted and are found to be true. Accordingly, we grant the Motion for Summary Judgment. FINDINGS OF FACT 1. iHE BUSINESS OF RESPONDEN1 Respondent Morton L. Chait Plumbing Corp. is, and has been at all times material herein, a corpora- tion with its principal office and place of business at 5518 Church Avenue, Brooklyn, New York, and var- ious other places of business, including 195 Locust Wood Boulevard, Elmont, New York, where it is, and has been at all times material herein, continuous- ly engaged in the construction industry, performing plumbing and related services. During the past year, which is a representative pe- riod, Respondent, in the course and conduct of its business operations, performed plumbing and related services valued in excess of $50,000 of which services valued in excess of $50,000 were performed for New York City, the Board of Education, and for other enterprises located within the State of New York. each of which enterprises purchased and caused to be transported and delivered to their places of busi- ness goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to their places of business in interstate commerce directly from States of the United States other than the State in which said places of business are located. During the same representative period, Respon- dent, in the course and conduct of its business opera- tions, purchased pipes, plumbing supplies, and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were shipped and delivered to its places of business in interstate commerce directly from States of the United States other than the State in which it is located. We find, on the basis of the foregoing, that Re- spondent is and has been at all times material herein an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II 1111 I.ABOR OR(iANIZA1 ION INV)OI VXli) Local Union No. I of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Can- ada is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111 li 1H- NFAIR LABOR PRA(C'ICES A. The Unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All journeymen plumbers, apprentice plumbers and plumber trainees employed by Respondent in new building construction or major alteration of private, New York City, New York State, or Federal work exclusive of supervisors and all other employees. B. The Representative Status of the Union Respondent has recognized the Union as the col- lective-bargaining representative of the employees in said unit at all times material herein, and on or about December 6, 1976, Respondent and the Union exe- cuted a collective-bargaining agreement effective through August 3. 1978. The said agreement contains, inter alia, a provision whereby Respondent agrees to keep its labor pay- rolls, job and time books, and compensation books available for joint inspection by representatives of the Union, the Association, and the accountant. C. The Request To Bargain and Respondent's Refusal On or about November 4 and 10 and December 23, the Union, pursuant to the provision in the agree- ment decried above, requested Respondent's permis- sion to have the accountant conduct an audit of Respondent's books and records.2 Since on or about November 4. 1977, and at all 2The charge alleges that the purpose of the requested audit is to de- termine if fringe benefit contributions required under the collective-bargain- ing agreement are being made 224 MORTON L. CHAIT PLUMBING CORP. times thereafter Respondent has refused to permit an audit of the above-described books by the Union, the Association, and the accountant. We find, accordingly, that Respondent has, by such refusals, refused to bargain collectively with the Union and that by such refusals Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE FFFECT OF TIE, UNFAIR I.ABOR PRACTI CES IUPON ('OMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic. and commerce among the several States and tend to lead to labor disptues burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pol- icies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CoN(c I iSlNS o() LAW I. Morton L. Chait Plumbing Corp. is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. I of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Can- ada is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit ap- propriate for collective bargaining purposes within the meaning of Section 9(b) of the Act: All journeymen plumbers. apprentice plumbers and plumber trainees employed by Respondent in new building construction or major alteration of private, New York City, New York State, or Federal work, exclusive of supervisors and all other employees. 4. At all times material herein, the above-named labor organization has been the contractual and rec- ognized exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 4 and 10 and December 23, 1977, and at all times thereafter, to permit an audit of its labor payrolls, job and time books, and compensation books, as requested by the Union, Respondent has refused to bargain in good faith and thereby has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusals to bargain collectively with the Union, Respondent has interfered with, re- strained, and coerced, and is interfering with, re- straining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Morton L. Chait Plumbing Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively by refusing to permit an audit of its labor payrolls, job and time books, and compensation books, as requested by Lo- cal Union No. I of the United Association of Jour- neymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, herein the Union. the recognized contractual and collective-bargaining representative of its employees in the following appropriate collective-bargaining unit: All journeymen plumbers, apprentice plumbers and plumber trainees employed by Respondent in new building construction or major alteration of private, New York City, New York State, or Federal work exclusive of supervisors and all other employees. (b) In any like or related manner interfering with. restraining, or coercing employees in their rights guaranteed by Section 7 of the National Labor Rela- tions Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request. permit an audit of its books and records by the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages, hours, and other terms and conditions of employment. (b) Post at its facilities at 5518 Church Avenue, Brooklyn, New York, and 195 Locust Wood Boule- vard, Elmont, New York, copies of the attached no- tice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 3 In the event that this Order is enforced by a judgment of a UInited 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively by refusing to permit an audit of our books and records, as requested by Local Union No. I of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit de- scribed below by permitting an audit of our books and records as requested by the Union. The bargaining unit is: All journeymen plumbers, apprentice plumb- ers and plumber trainees employed by Re- spondent in new building construction or ma- jor alteration of private, New York City, New York State, or Federal work, exclusive of sup- ervisors and all other employees. MORTON L. CHAIT PLUMBING CORP. 226