Standard Plumbing Co.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standard Plumbing and Heating Company , Inc., and Sam F. Messina d/b/a Standard Plumbing Compa- ny and Plumbers and Steamfitters Local Union No. 141 a/w United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL- CIO. Cases 15-CA-3058 and 15-CA-3202 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On April 26, 1968, Trial Examiner John F. Funke issued his Decision in the above-entitled consolidated proceeding finding that Respondent Standard Plumb- ing and Heating Company, Inc., herein called Respondent Standard, had engaged in and was engag- ing in certain unfair labor practices, and recommend- ing that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. He also found that Respondent Sam F. Messina d/b/a Standard Plumbing Company, herein called Respondent Messina, had not engaged in any unfair labor practices and recommended that the complaint be dismissed as to them. However, the Trial Examiner found that Respondent Messina, as a successor to Respondent Standard, was obligated to remedy the unfair labor practices of its predecessor, only from a date starting 10 days after the Trial Examiner's Decision. The Trial Examiner further found that the two Respondents did not engage in certain other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondents and the General Counsel filed excep- tions to the Trial Examiner's Decision, and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, and the entire record in these cases and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. The Trial Examiner found that Respondent Standard, as a member of a multiemployer bargaining association, was engaged in commerce within the meaning of the Act, inferring that the total dollar figure of the Association would exceed the Board's retail jurisdictional standard, but he did not determine whether Respondent Standard was a retail or nonretail enterprise. The General Counsel argues that Respond- ent Standard was at all times material herein engaged in both retail and nonretail operations and that the Board's policy for asserting jurisdiction in such a case is to apply its nonretail standard unless the nonretail aspect of the business is de minimis. As Respondent Messina continued operations similar to his predecessor, the General Counsel claims the nonre- tail standard applies to him also. We find merit in the General Counsel's exceptions. The evidence shows that Respondent Standard engaged in plumbing repairs, remodeling, Roto-Rooter Sewer Service, and plumbing installation in houses under construction. Dominic Messina, president of Respondent Standard, testified that approximately 95 to 98 percent of the business was repair work, leaving approximately 3 to 5 percent of the business in the nature of plumbing installation in homes under con- struction. As argued by the General Counsel, it is the Board's policy to apply its nonretail operations where the nonretail operations exceed de minimis.' We find that the nonretail sales, which totaled between $9,000 and $16,360, exceeded de minimis, and the nonretail standard is applicable. In view of the testimo- ny of Sam F. Messina, who stated that he is engaged in the same business as the predecessor, Respondent Standard, we find it is proper to apply our nonretail standard to Respondent Messina as well. Since both Respondents purchased (or projected figures predict they will purchase) materials valued in excess of $50,000 from firms which in turn purchased such materials directly from places outside the State of Louisiana, we find they are engaged in commerce within the meaning of the Act and that it will effectu- ate the purposes of the Act to assert jurisdiction over both Respondents herein. 2. The Trial Examiner found, and we agree, that Respondent Standard violated Section 8(a)(5) and (1) of the Act by failing and refusing to give full force and effect to the collective-bargaining contract between the Association and the Union, and by unilat- erally changing the terms and conditions of employ- ment of its employees. We further agree with the Trial Examiner, on the basis of the record testimony, that Respondent Standard's offer to pay the fines of employees who might be fined by the Union did ' Cemetery Service Corporation (Park view and Springdale Cemeteries), 149 NLRB 604, and cases cited therein at fn 5 185 NLRB No. 63 STANDARD PLUMBING & HEATING CO., INC not violate' Section 8(a)(1) in the circumstances of this case.' 3. The Trial Examiner concluded that Respondent Messina did not violate Section 8(a)(5) and (1) of the Act since no request for bargaining was ever made on Respondent Messina. However, the Trial Examiner did find that Respondent Messina, a bona fide purchaser of Respondent Standard 's business, was obligated to remedy the unfair labor practices of Respondent Standard . Since the Trial Examiner found no unfair labor practices against Respondent Messina, he recommended that Respondent Messina only be obligated to remedy the unfair labor practices of Respondent Standard from a time after issuance of his Trial Examiner 's Decision . The General Counsel excepted to the Trial Examiner's failure to find that Respondent Messina violated Section 8(a)(5) and (1) by refusing to agree to and accept the contract execut- ed on April 1, 1967 , by the Association and the Union . Since Respondent Standard was a member of this multiemployer bargaining group , had been a member for 20 years, and had negotiated many of the Association's contracts, its withdrawal from the Association after negotiations had been initiated with the Union , absent unusual circumstances not present or alleged herein , was untimely and its failure to honor or abide by the collective-bargaining agree- ment resulting from such negotiations was unlawful. After Respondent Standard continued to refuse to agree to the terms of the contract , the Union picketed Respondent Standard's premises. A month after the picketing began and with full knowledge of the picket- ing, Respondent Messina purchased and took over the business of Respondent Standard , as more fully described in the Trial Examiner's Decision. When Respondent Standard informed its employees it was going out of business, Respondent Messina also spoke to the employees and hired most of Standard's employ- ees. Without any hiatus , Respondent Messina contin- ued the business formerly operated by Respondent Standard. Sam Messina, the purchaser of Respondent Stand- ard, is the nephew of Dominic Messina and son of Frank Messina, the two partners operating Respondent Standard , and had also been an employee of Respondent Standard . He was clearly aware of ' Member Brown would find that Respondent Standard violated Sec 8(a)(1) by these offers See Leeds & Northup Company, 155 NLRB 1292, 1294, Barney Wilkerson Construction Co, 145 NLRB 704, 716 ' The General Counsel excepted to the Trial Examiner's failure to find that three named employees are unfair labor practice sinkers There is no showing that the three either joined or participated in the strike against Respondent Standard As any other separation from employment was neither alleged nor argued as being a violation of the Act, we will not disturb the Trial Examiner's Conclusions that the three were not unfair labor practice strikers 445 the picketing and the reasons therefor at the time he purchased the business of Respondent Standard. Thereafter, without any hiatus in the continuity of the employing enterprise, Respondent Messina contin- ued the same business as Respondent Standard, but did not abide by the terms of the Association contract his predecessor was bound to honor. Respondent Messina admitted he was aware of the reasons for the picketing and therefore can be charged with knowl- edge of his predecessor's unfair labor practices, even though he may not have had knowledge that formal charges were filed. Under such circumstances, we find that Respondent Messina, as a successor employ- er, as well as Respondent Standard, violated Section 8(a)(5) and (1) by failing to agree to and abide by the terms of the contract executed April 1, 1967, and expiring March 31, 1969, between the Association and the Union.' In fashioning a remedy for Respondent Messina's violation of Section 8(a)(5) and (1) of the Act, we shall not limit, as did the Trial Examiner, Respondent Messina's obligation from a date starting after receipt of the Trial Examiner's Decision.' Respondent Messi- na violated the Act from the moment he failed to abide by the terms and conditions of the Association contract.' Therefore, we shall order Respondent Messi- na to make whole his employees in the appropriate unit for any loss of benefits, including loss of wages, they may have suffered from his failure to abide by the terms of the contract, and to give full force and effect to the terms of the contract from May 29, 1967, to March 31, 1969.' Although no request to bargain has been made on Respondent Messina, his obligation to bargain did not cease with the expira- tion of the contract. Accordingly, we shall also order Respondent Messina to bargain collectively, upon request, with the Union as the representative of his employees in the appropriate unit, and if an under- standing is reached, to embody such understanding in a signed agreement. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 4: "By failing and refusing to give full force and effect to the collective-bargaining contract between the Union and the multiemployer Association of which " William J. Burns International Detective Agency, 182 NLRB No. 50, Hackney Iron and Steel Co 182 N LR B No 53 ' See, Perma Vinyl Corporation, Dade Plastics Co and United States Pipe and Foundry Company, 164 NLRB 968 6 William J. Burns International Detective Agency, supra ' F. W Woolworth, 90 NLRB 289, Isis Plumbing and Heating Co., 138 NLRB. 716 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his predecessor was a member , Respondent Messina violated Section 8(a)(5) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, as herein modified, and hereby orders that the Respondent, Standard Plumbing and Heating Company, Inc., Shreveport, Louisiana, its officers, agents, successors, and assigns, and the Respondent, Sam F. Messina d/b/a Standard Plumbing Company, Shreveport, Louisiana, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below. The Recommended Order as to Respondent Sam Messina d/b/a Standard Plumbing Company will be modified by the following: 1. Delete from paragraph 1 the words "Within 10 days from receipt of this Decision" and substitute therefor "Cease and desist from failing and refusing to... " 2. Redesignate paragraphs 2, 3, and 4 as paragraphs 4, 5, and 6, respectively, and insert as new paragraph 2 the following: "2. Make whole its journeymen plumbers and apprentices for any loss of benefits, including loss of wages, they may have suffered from its failure to give full force and effect to the terms and conditions of the collective-bargaining agreement set forth above." 3. Insert as new paragraph 3, the following: "3. Bargain, upon request, with the Plumbing and Steam- fitters Local Union 141 and, if an understanding is reached, embody such understanding in a signed agreement." 4. Delete from the Notice marked "Appendix B" the words "within 10 days from the date I received a copy of the Trial Examiner's Decision in Case No. 3202." 5. Add as additional paragraph to the notice marked "Appendix B" the following: I WILL make whole my journeymen plumbers and apprentices for any loss of benefits, including loss of wages, they may have lost because of my failure to give full force and effect to the above-mentioned contract. This will apply to all journeymen plumbers and apprentices employed by me from May 29, 1967, to the date of the expiration of said contract. I WILL bargain, upon request, with the Plumb- ing and Steamfitters Local Union 141, and, if an understanding is reached, I will embody such understanding in a signed agreement. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F FUNKE, Trial Examiner. Upon a charge filed in Case 15-CA-3058 on April 19, 1967, by Plumbers and Steamf►tters Local Union No. 141, herein the Union, against Standard Plumbing and Heating Company, Inc, herein Respondent Standard, the General Counsel issued a complaint dated June 15, 1967, alleging Respondent Stand- ard violated Section 8(a)(5) and (1) of the Act Upon a charge filed in Case 15-CA-3202 on November 11, 1967, by the Union against Sam F. Messina d/b/a Standard Plumbing Company, herein Respondent Messina, the Gener- al Counsel issued a complaint dated December 12, 1967, alleging Respondent Messina violated Section 8(a)(5) and (1) of the Act On the same date the General Counsel issued an order consolidating said cases for the purposes of hearing Respondents Standard and Messina filed answers in each case denying the commission of any unfair labor practices. These cases, with all parties represented, were heard before me on February 14 and 15 at Shreveport, Louisiana. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and the Respondent on April 10. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTIONAL FINDINGS Respondent Standard is a Louisiana corporation maintain- ing its office and principal place of business at Shreveport, Louisiana, where it is and has been engaged in the business of making plumbing repairs, providing general plumbing services and Roto-Rooter Sewer Services During the 12- month period preceding the issuance of the complaint in Case 15-CA-3058 Respondent Standard purchased mate- rials valued in excess of $50,000 from firms which in turn purchased materials valued in excess of $50,000 directly from places outside the State of Louisiana Respondent Standard contends, however, that it is a retail enterprise engaged in sales and plumbing repairs made to local consum- ers and that its total sales for the past year had totaled only $327,061. This total does not meet the Board's jurisdic- tional standards for retail enterprises. Respondent was, however, a member of the Plumbing and Air Conditioning Contractors Association of Shreve- port, Inc. herein the Association , and engaged in collective bargaining as a multiemployer group with other members of the Association with the Union The record does not reveal the amount of business done, whether intrastate or interstate , of the other members of the Association. STANDARD PLUMBING & HEATING CO, INC 447 Dominic C. Messina, president of Respondent Standard,' testified that the other members of the Association were engaged primarily in construction plumbing, i e, plumbing installations in buildings under construction. General Coun- sel's Exhibit 4, a letter from the president of the Association dated April 5, 1967, lists 16 plumbing firms which were members of the Association as of that date I think it only reasonable to infer that the total dollar figure of sales and services of the Association, in view of Respondent Standard's total annual sales of $327,061, would exceed $500,000 annually I therefore find, reluctant as I am to make a jurisdictional finding based on inference, that Respondent Standard was, at the time of the alleged unfair labor practices, engaged in commerce within the meaning of the Act 2 In so finding I am not passing upon the question as to whether or not Respondent Standard is a retail or nonretail enterprise' The admission in the answer that Respondent Standard purchased goods and materials valued in excess of $50,000 annually from firms which,in turn, purchase more than $50,000 annually directly from places outside the State of Arkansas establishes jurisdiction if Respondent Standard is a nonretail business The $500,000 retail standard is met on the basis of Respondent Standard's membership in the Association. As to Respondent Messina I find it unnecessary to determine whether or not it meets the Board's standards for asserting jurisdiction. Legal jurisdiction over Respondent Messina is found in view of the fact that it purchased goods and materials valued in excess of $4,000 during the period from beginning May 29, 1967 until February 29, 1968, directly from places outside the State of Louisiana. Because of the findings hereinafter made and for reasons later stated I hold that the policies of the Act would best be effectuated by asserting jurisdiction over Respondent. In Tropicana Products, Inc., 122 NLRB 121, the employer failed to appear at a representation hearing and the Hearing Officer took secondary evidence as to the commerce opera- tions of the employer The Board, pages 122 and 123, stated. The foregoing evidence conclusively demonstrates that the Employer is extensively engaged in the ship- ment of goods in interstate commerce. The record does not reveal, however, the precise value of the Employer's interstate shipments, and thus does not show that the Employer's operations satisfy the Board's jurisdictional standards. These standards were adopted by the Board, inter aiia, as an administrative aid to ' Dominic's brother, Frank Messina, became vice president of Respond- ent Standard and the two owned the controlling interest in it 2 American Linen Supph Co, 128 NLRB 639 Painting & Decorating Contractor[ Aciouation of Orange Counts Inc 147 NLRB I Fichernien'c Cooperative As%n 128 NLRB 62 Local 20076 Sightseeing Guides & Lecturers Union of Greater Vecc I orb ( -1 BT Sightseeing Tours Inc ) 133 NLRB 985 This is true notwithstanding in employer', tender of resignation from the.eoocidtion Lotal6 Building Siriice Ei» ploieec (Rani,e Building), 128 NLRB 74 ' The General Counsel offered no evidence to establish that Respondent Standard was a nonretail enterpise He merely applied the nonretail standards to its volume of business I do not think that this sustains his burden of proof on the jurisdictional issue The admitted indirect inflow is sufficient to establish legal jurisdiction over Respondent Standard Cf Southern Dolomite, 129 NLRB 1342 facilitate its jurisdictional determinations in order that it might reduce the amount of time and energy expended in the investigation of jurisdictional questions, so that it might concentrate its energies on substantive issues in the many important cases coming before it and thus increase its case-handling capacity. The adoption of such standards in no way precludes the Board from exercising its statutory authority, in any properly filed case, where legal jurisdiction alone is proven, if the Board is satisfied that such action will best effectuate the policies of the Act. [Fn. 3 cites N.L.R.B. v W. B Jones Lumber Company, Inc., 245 F.2d 388 (C A. 9) ] I therefore find that the discretion to exercise jurisdiction in this case rests solely with the Board ° IL THE UNFAIR LABOR PRACTICES A Case 15-CA-3058 Respondent Standard was incorporated in 1964 and Dominic Messina became its president. Prior to that time the same business was operated as a partnership composed of Dominic and his brother Frank Messina. The partnership became a member of the Association in 1948 or 1949 and Respondent Standard became a member of the Associa- tion when incorporated Dominic Messina testified that he was a member of the Association's bargaining committee during negotiations leading to the last three contracts, which included the one made effective April 1, 1967, and expiring March 31, 1969 (G. C. Exh. 3 )' Respondent Standard, as a member of the Association, had been a party to all prior contracts which were signed by the chairman of the Association's Negotiating Committee and which were binding upon the members. Respondent Standard did not sign the April 1, 1967, agreement Messina testified that it was his position, and had been for some time, that the contract should contain a split scale, one for the construction plumbers and one for the repair shop plumbers All other members of the Association were construction plumbers6 and, according to Messina, could pay higher rates than he could afford Messina, on behalf of the Association and also on behalf of Respondent Standard's individual position, participated in the negotiations from December 1966 until March 30, 1967. Messina told the other members of the Association on the night of March 30, the final night of negotiations, that he would agree to a wage increase of $1.02 per hour ' I do not regard direct inflow in excess of $4,000 as de minions Cf Lamar Hotel, 127 NLRB No 11 ' The contract, article If, covers all journeymen plumbers and apprentices within the jurisdiction of the Association I therefore find that the appropriate unit consists of All journeymen plumbers and apprentices employed by the Employer at its Shreveport, Louisiana, shop, excluding office clerical employees, guards, and supervisors as defined by the Act Construction plumbers performed the plumbing work on new construc- tion Messina testified that 95 percent to 98 percent of Respondent Standard's sales were for local repair work and that only on a few occasions did it perform so-called construction plumbing 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but that "I don't want to have anything else to do. I cannot survive" He then "went over and sat on a stool by the wall, and I did not have anything else to do with negotiations." The Association and the Union finally agreed on a wage scale increasing rates to $1 20 per hour with an additional 3 cents for a welfare fund. The next day the Association and the Union ratified the agreement, although Messina did not vote and told Dick Fitzgerald, chairman of the Association's Negotiating Committee, that he would have to get out of the Association. On April 1, 1967, he prepared a letter of withdrawal from the Associa- tion which he delivered to the president of the Association a few days later. (Joint Exh 7 ) On the evening of March 31 Messina told his employees that he was no longer a party to any union contract and that the men could either work for him or go back to the Union. He offered them a 20-cent-per-hour increase effective as of Monday, April 3; told them he would pay for their uniforms and guaranteed at least one employee a 40-hour week.' Based on the foregoing statement of facts, taken from the testimony of Dominic Messina, I find Respondent Stand- ard violated Section 8(a)(5) and (1) of the Act by refusing to agree to and accept the contract executed on April I by the Association and the Union It is, as the Board has consistently held, unlawful for an employer who is a member of a multiemployer bargaining group to withdraw from multiemployer bargaining after negotiations have been initiated with the union. Due and timely notice is, absent unusual circumstances, required to be given before negotia- tions start! I also find Respondent Standard violated Section 8(a)(5) and (1) by granting its employees 20 cents per hour increase and agreeing to pay for their uniforms without notice to or bargaining with the Union concerning such benefits. I do not, however, find that these benefits were conditioned on or offered as an inducement to the men to abandon the Union No hostility toward the Union has been shown and Messina attempted to reach agreement with the Union after April 1 based on a split scale contract. Under these circumstances and since a finding of an independent violation of Section 8(a)(1) would not add to the remedial order recommended, I find it unnecessary to pass on that issue' Following Messina's speech to his employees on March 31 an employee named Spears quit, telling Messina that he (Spears) was getting old and would "spend the rest of my time in the union shop." Tommy Messina, a nephew, also quit, telling Dominic that he had a card with a Califor- nia local, had pension rights there and would return to ' Messina said his men always worked 40 hours per week, although it was not guaranteed Retail 4sionaies Inc 1220 NLRB 388 -1ndersun Lithograph Conipam Inc 124 NLRB920 CI LI S Lingerie Corp 170 NLRB No 77 ' The General Counsel argues that Respondent Standard 's offer to pay the fines of any employees who might be fined for continuing working violated Section 8 (a)(1) There is no evidence that the Employer was doing more than protecting those employees who wished to continue working , a right the Act confers on them, from possible reprisal by the Union He neither interfered with their right to work nor with their right to strike California. Another employee named Bell also quit to remain a union member. Although the Union started picketing Respondent Stand- ard's place of business on April 19 I do not find that employees Spears, Bell, and Messina engaged in a strike against Respondent Standard."' All three, on the record before me, voluntarily quit their employment with no expec- tation of returning and without stating they would return if Messina signed a contract with the Union In any event neither the issue of an unfair labor practice strike nor the issue of reinstatement was properly before me since no application for reinstatement had been made at the time of the hearing B Case 15-CA-3202 The issues posed are whether Respondent Messina refused to bargain in good faith with the Union and whether, as a successor to Respondent Standard, it became obligated to remedy its predecessor's unfair labor practices Sam Francis Messina, nephew of Dominic and son of Frank Messina, had been employed by Respondent Standard until May 26, 1967 Sometime prior to May 26 Sam received his plumber's license and then, on May 26, entered into the lease and sale agreements, as above set forth, by which he took over the business of Respondent Standard " Follow- ing Dominic's speech to his employees, supra, Sam spoke to them, telling them he was starting business the following Monday and would hire any employees who would work for him He commenced operations as a plumbing repair and service shop and testified that it was similar to Respond- ent Standard's business, adding, "But that's the only business I know, I am a repair plumber." A comparison of the payroll of Respondent Standard for the period May 19- 26 (G C. Exh 19-a) and the payroll of Respondent Messina for May 29-June 2 establishes that there were 18 employees, excluding Dominic, Frank and Sam Messina on each payroll. All 18 who had been employed by Respondent Standard became employees of Respondent Messina On February 2, 1968, 15 of these employees were on the payroll of Respondent Messina which at that time had a total of 25 employees. (G C. Exh. 21-b.) Sam Messina denied any knowledge of unfair labor prac- tices on the part of Respondent Standard. Sam Messina did know, however, that Respondent Standard had not signed the new contract with the Union and that the Union was picketing Respondent Standard The picket signs read STANDARD PLUMBING UNFAIR TO LOCAL PLUMBERS AND STEAMFITTERS LOCAL UNION 141.'2 10 The Union continued to picket the premises which were occupied by Respondent Standard after the lease to Respondent Messina Respond- ent Standard did continue its business on a greatly reduced scale at these premises after the lease " No evidence was offered that the purpose of the sale was to evade the statutory bargaining obligation of Respondent Standard I find the transaction was bona fide " The sign remained unchanged after the transfer of the business to Respondent Messina STANDARD PLUMBING & HEATING CO, INC. Sam acquired knowledge that unfair labor practices had been charged when charges were filed against Respondent Messina and he was so notified by Board Agent Gentile." Dominic Messina could not remember ever discussing the charges filed , against Respondent Standard with Sam although he did have discussions concerning them with Frank Messina, (Dominic's former partner and vice presi- dent of Respondent Standard). It is difficult to believe that neither his father nor his uncle would discuss these charges with Sam before he took over the business. Neverthe- less I find that notice of a labor dispute which involved picketing of the premises where Sam worked and which he was about to lease constituted a caveat sufficient to put him on notice. While I do not expect a journeymen plumber fully to understand the sundry obligations imposed by the statute I would not permit either his ignorance nor innocence to relieve him from those obligations. His employees are not to be deprived of their rights on such grounds. Sam Messina testified that he did not notify the Union of the change of ownership and stated, and this is not contradicted, that the Union did not at any time request that he bargain with it. Accordingly no negotiations were ever held and there the matter rested at the time of hearing Based upon the foregoing facts, substantially uncontradict- ed, I reach the following conclusions. 1. Respondent Messina is a successor employing industry to Respondent Standard" and as such is obligated to remedy the unfair labor practices of its predecessor. In Perma Vinyl Corporation, et al., 164 NLRB No 119, the Board, reversing Syms Grocer Co., 109 NLRB 346, held that "one who acquires and operates a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor practices charges against his predecessor should be held responsible for remedying his predecessor's unlawful conduct." 2. Since no request for bargaining was ever made upon Respondent Messina I do not find that Respondent Messina violated Section 8(a)(5) and (1) of the Act iIi THE REMEDY Having found that Respondent Standard engaged in and is engaging in certain unfair labor practices it shall be recommended that it cease and desist from the same and " The charge is dated November 9, 1967 , and the letter notifying Respondent Messina of the filing of the charge, signed by Charles M Paschal, Jr , Acting Regional Director for Region 15, is dated the same day Both the letter and the charge named the Respondent as Standard Plumbing Company The charge (paragraph 1-d) named Sam F Messina as the person to contact " Wiley v Livingston, 376 US 543, 551, NLR B v Hoppes Mfg Co, 170 F 2d 962, (C A 6) NLR B. v Downtown Bakery, 330 F 2d 921 (C A 6), Overnite Transportation Co v NLRB, 372 F 2d 765, 767-768 (C A 4) cert denied 389 U S 838 Y L R B v luto Ventshade Inc 276 F 2d 303 306-308 (C A 5) N L R B i Mi Farland 306 F 2d 219 (C A 10) Mmntenanie In, 148 NLRB 1299 CI V L R B i Birdmll- Stnc ddale Motor Co 208 F 2d 231 (C A 10) 449 take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent Messina is obligated, inso- far as possible, to remedy the unfair labor practices of Respondent Standard, it shall be recommended that Respondent Messina take certain affirmative action neces- sary to effectuate the policies of the Act Having found that Respondent Standard was obligated by law to give full force and effect to the contract made effective April 1, 1967, and expiring March 31, 1969, between the Association and the Union, it shall be recom- mended that Respondent make whole all employees on its payroll from April 1 through May 26, 1967, for any loss of benefits, including wages, they may have suffered by reason of Respondent Standard's failure to give full force and effect to such contract 15 Because all of the employees on the payroll for said period appear to have entered the employ of Respondent Messina on May 29, 1967, Respondent Standard will be responsible for making these employees whole for loss of benefits from April 1 to May 29, 1967.i6 Having found that Respondent Messina was obligated to remedy the unfair labor practices of Respondent Standard it shall be recommended that it give full force and effect to the contract, including its wage scale, between the Associ- ation and the Union for the balance of its term Since no unfair labor practices were found against Respondent Messina until the date of this Decision it shall be recom- mended that Respondent Messina shall give full force and effect to said contract from a date starting 10 days after receipt of this Decision and continuing until the expiration of said contract Upon the basis of the foregoing findings and conclusions, I make the following. CONCLUSIONS OF LAW 1. By failing and refusing to give full force and effect to a collective-bargaining contract between the Association and the Union, effective April 1, 1967, and expiring March 31, 1969, and by unilaterally changing the terms and condi- tions of employment of its employees, Respondent Standard violated Section 8(a)(5) and (1) of the Act. 2. The unit appropriate for collective bargaining is All journeymen plumbers and apprentices employed at Respondent Standard's Shreveport, Louisiana, plant, excluding office clerical employees, guards and supervi- sors as defined by the Act 3 The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. 4. Respondent Messina has not engaged in unfair labor practices within the meaning of the Act " Dominic Messina testified that he was still doing business , having reserved an office for himself at the leased premises The record does not indicate whether he employs or may in the future employ any employees at that address Any such employees would be entitled to the benefits of the aforesaid contract until its expiration " Overnite Transportation Co v NL R B, 372 F 2d 765, supra 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER A. Respondent Standard Plumbing and Heating Company, Inc., its officers , agents, successors , and assigns, shall- I Cease and desist from- (a) Failing and refusing to give full force and effect to a collective-bargaining contract made effective April 1, 1967, and expiring March 31, 1969, between Plumbing and Air Conditioning Contractors Association of Shreve- port, Inc, and Plumbing and Steamfitters Local Union 141, which contract covers the terms and conditions of employment of journeymen plumbers and apprentices engaged in the installing of all plumbing , air conditioning, refrigeration, and/or pipefitting systems and component parts thereof, including fabrication, assembling , erection, installation , dismantling, repairing, reconditioning, adjust- ing, altering, servicing and handling, unloading , distributing, reloading, tying on, and hoisting all piping materials, appurtenances, and equipment by any method, including all hangers and supports of every description and all other work included in the trade jurisdictional claims of the United Association. (b) Effecting changes in the wages, hours, and other terms and conditions of employment of its employees in the unit found appropriate herein without notice to and consultation with the Union 2 Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole its journeymen plumbers and apprentices for any loss of benefits, including loss of wages, they may have suffered from its failure to give full force and effect to the collective-bargaining agreement set forth in paragraph 1(a) of this Recommended Order." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, and personnel records necessary to analyze and compute the amounts due its journeymen plumbers and apprentices employed after April 1, 1967, under the terms of said contract. (c) Post at its Shreveport, Louisiana, shop copies of the attached notice marked "Appendix A."18 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent Standard, shall be posted by the Respondent Standard immediately upon receipt there- of, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent Standard to insure that such " This recommendation shall apply to all journeymen plumbers and apprentices on Respondent Standard 's payroll between April 1 and May 29, 1967, and to all journeymen plumbers and apprentices employed thereafter until the expiration of said contract " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice in the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " notices are not altered , defaced , or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent Standard has taken to comply herewith." It is further recommended that all allegations of the complaint not specifically found to be in violation of the Act be dismissed. B. Respondent Sam Messina d/b/a Standard Plumbing Company, his agents, successors, and assigns shall take the following affirmative action necessary to effectuate pur- poses of the Act 1. Within 10 days from receipt of this Decision give full force and effect to the collective -bargaining contract, including its rates of pay, made effective April 1, 1967, and expiring March 31, 1969, between Plumbing and Air Conditioning Contractors Association of Shreveport, Inc , and Plumbing and Steamfitters Local Union 141, covenng journeymen and apprentices as more fully set forth in paragraph 1 (a) of this Recommended Order. Full force and effect to the terms of this contract shall be given until March 31, 1969 2. Post at his Shreveport , Louisiana, shop, copies of the attached notice marked "Appendix B "20 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent Messina, shall be posted by the Respondent Messina immediately upon receipt there- of, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent Messina to insure that such notices are not altered, defaced, or covered by any other material 3. Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll and other records necessary to analyze and compute the amounts due its journeymen plumbers and apprentices employed after 10 days from the date of receipt of this Recommended Order 4. Notify the Regional Director for Region 15, in writing, within 20 days of this Decision , what steps it has taken to comply herewith.21 IT IS FURTHER RECOMMENDED that the complaint against Respondent Messina be dismissed in its entirety. " In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 15, in writing , within 10 days from the date of this Order, what steps Respondent Standard has taken to comply here- with " '0 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words, "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15, in writing , within 10 days from the date of this Order, what steps Respondent Messina has taken to comply herewith " STANDARD PLUMBING APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL give full force and effect to the collective- bargaining agreement made effective April 1, 1967, and expiring March 31, 1969, between Plumbing and Air Conditioning Contractors Association of Shreve- port, Inc, and Plumbing and Steamfitters Local Union 141, covering journeymen plumbers and apprentices until the expiration of said contract WE WILL make whole any journeymen plumbers and apprentices employed by us for any loss of benefits, including our failure to pay the wage scale of said contract, they may have lost because we did not give full force and effect to said contract. This will apply to all journeymen plumbers and apprentices employed by us from April 1 to May 29, 1967, and to any journeymen plumbers and apprentices employed after May 29 to date of the expiration of said contract. WE WILL NOT change the wages, hours, or other terms and conditions of employment of our journeymen plumbers and apprentices without notice to and consul- tation with Plumbing and Steamfitters Local Union 141 STANDARD PLUMBING AND HEATING COMPANY, INC (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate & HEATING CO , INC 451 directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that I WILL, within 10 days from the date I received a copy of the Trial Examiner's Decision in Case No. 3202, give full force and effect to the collective-bargain- ing contract, including its rates of pay, made effective April 1, 1967, and expiring March 31, 1969, between Plumbing and Air Conditioning Contractors Associa- tion of Shreveport, Inc., and Plumbing and Steamfitters Local Union 141 This contract covers all journeymen plumbers and apprentices employed by me Full force and effect shall be given by and until the expiration date of said contract, March 31, 1969. SAM F MESSINA d/b/a STANDARD PLUMBING COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisi- ana 70113, Telephone 527-6391.