H. Jonas and Son, Inc.

1 325 NLRB No. 228 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. H. Jonas and Son, Inc. and its alter ego, J&H Me- chanical and United Association of Plumbers and Pipefitters, AFL–CIO, Local 1, formerly known as United Association of Plumbers and Pipefitters, AFL–CIO, Local 2. Case 2–CA– 28902 July 31, 1998 DECISION AND ORDER BY MEMBERS FOX, HURTGEN, AND BRAME Upon a charge filed by the Union on November 9, 1995, the General Counsel of the National Labor Rela- tions Board issued a complaint on October 17, 1997, against H. Jonas and Son, Inc. (Respondent Jonas) and its alter ego, J&H Mechanical (Respondent J&H), col- lectively, the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge and the complaint, the Respondent failed to file an an- swer. On July 14, 1998, the Acting General Counsel filed a Motion for Summary Judgment with the Board. On July 15, 1998, 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 Re- spondent filed no response. The allegations in the mo- tion 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 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 al- legations in the Motion for Summary Judgment dis- close that the Region, by letter dated January 5, 1998, notified the Respondent that unless an answer were re- ceived by January 19, 1998, 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 Acting 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, Respondent H. Jonas, a cor- poration, with an office and a place of business located at 429 West 44th Street, New York, New York, has been engaged in the provision of commercial plumbing maintenance and repair services. About May 1995, Re- spondent J&H was established by Respondent H. Jonas as a disguised continuance of Respondent H. Jonas. Respondent J&H and Respondent H. Jonas are and have been at all material times alter egos and a single integrated enterprise. At all material times, the Association of Contracting Plumbers of the City of New York, Inc. (the Associa- tion) has been an organization composed of various employers engaged in the business of providing com- mercial plumbing maintenance and repair services, one purpose of which is to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the Union. At all material times, the Respondent has been an employer-member of the Association and has delegated and authorized the Association to represent the Respondent in negotiating and administering col- lective-bargaining agreements with various labor orga- nizations, including the Union. Annually, the em- ployer-members of the Association, including the Re- spondent, collectively purchase and receive at their New York State facilities products, goods, and mate- rials valued in excess of $50,000 directly from points outside the State of New York. We find that the em- ployer-members of the Association, including the Re- spondent, are now, and have been at all material times, employers 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 At all material times the following employees of the Respondent constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time journeymen, apprentices and worker trainees employed by the employer-members of the Association, but exclud- ing all managers, clericals, guards, professional employees and supervisors as defined in the Act. At all material times, the Union has been the des- ignated limited exclusive collective-bargaining rep- resentative of the unit and has been recognized as such representative by the Respondent. Such recognition has been embodied in successive collective-bargaining agreements, including a recent agreement which was 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such re- imbursement will constitute a setoff to the amount that the Respond- ent otherwise owes the fund. 2 Member Hurtgen would make whole, but would not reinstate, employees who should have been referred to the Respondent. See his effective by its terms from June 29, 1994, to June 24, 1997 (the 1994–1997 agreement). At all material times, based on Section 8(f) of the Act, the Union has been the limited exclusive collective-bargaining rep- resentative of the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. Article 2 of the 1994–1997 agreement requires the Respondent to make monthly monetary contributions to the Union’s Medical Fund, Pension Fund, Holiday and Vacation Fund, Education Fund, and Supplemental Benefits Fund; to make authorized weekly salary de- ductions from each employee covered by the collec- tive-bargaining agreement for union dues and initiation fees, and to remit the deductions to the Union; and to pay wages in accord with the rates specified therein. Article 18 of the 1994–1997 agreement requires the Respondent to seek applicants for employment from the Union’s referral list. These subjects relate to wages, hours, and other terms and conditions of em- ployment of the unit and mandatory subjects for the purposes of collective bargaining. Since about May 1995, the Respondent has unilaterally failed to abide by the terms of the 1994–1997 agreement by, inter alia, failing and refusing to honor and give effect to these specific contractual obligations. Respondent en- gaged in these acts without affording the Union an op- portunity to bargain with respect to such conduct and the effects of such conduct. CONCLUSION OF LAW By the acts and conduct described above, the Re- spondent has been failing and refusing to bargain in good faith with the limited exclusive collective-bar- gaining representative of its employees, and has there- by engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to make contractually required contributions to the Union’s Medical Fund, Pension Fund, Holiday and Vacation Fund, Education Fund, and Supplemental Benefits Fund since about May 1995, we shall order the Re- spondent to honor the terms of the 1994–1997 collec- tive-bargaining agreement and to make whole its unit employees by making all such delinquent contributions that have not been made since about May 1995, in- cluding any additional amounts due the funds in ac- cordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensu- ing from its failure to make the required 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 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).1 Furthermore, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to deduct union dues and initiation fees for employees who had executed dues-checkoff authorizations and to remit them to the Union, as required by article 2 of the 1994–1997 agreement, since about May 1995, we shall order the Respondent to deduct and remit union dues as required by the 1994–1997 agreement and to reim- burse the Union for its failure to do so, with interest as prescribed in New Horizons for the Retarded, supra. In addition, having found that the Respondent vio- lated Section 8(a)(5) and (1) by failing to pay wage rates in accord with article 2 of the 1994–1997 agree- ment since about May 1995, we shall order the Re- spondent to make the unit employees whole for any loss of earnings attributable to its unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Service, supra, with interest as prescribed in New Horizons for the Retarded, supra. Finally, having found that the Respondent has failed to comply with article 18 of the 1994–1997 agreement since about May 1995 which requires the Respondent to seek applicants for employment from the Union’s referral list, we shall order it to offer immediate and full employment to any applicants who would have been referred by the Union to the Respondent for em- ployment in accord with the 1994-1997 agreement since about May 1995, were it not for the Respond- ent’s unlawful conduct, and to make them whole for any loss of earnings and other benefits they may have suffered by reason of the Respondent’s failure to hire them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest as prescribed in New Horizons for the Retarded, supra. Reinstatement and backpay issues will be re- solved at the compliance stage of the proceeding. J. E. Brown Electric, 315 NLRB 620 (1994).2 3 H. JONAS & SON, INC. dissent in M. J. Wood & Associates, Inc., 325 NLRB No. 199, slip op. at 4, fn. 9 (July 8, 1998). 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.’’ ORDER The National Labor Relations Board orders that the Respondent, H. Jonas and Son, Inc. and its alter ego, J&H Mechanical, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally failing to abide by the terms of the 1994-1997 agreement by failing or refusing to make monthly monetary contributions to the Union’s Medi- cal Fund, Pension Fund, Holiday and Vacation Fund, Education Fund, or Supplemental Benefits Fund, to make authorized weekly salary deductions from each employee covered by the collective-bargaining agree- ment for union dues and initiation fees and to remit the deductions to the Union, to pay wages in accord with the specified rates, or to seek applicants for employ- ment from the Union’s referral list. (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) Honor the terms of the 1994–1997 agreement and make the following unit employees whole by mak- ing all contractually required contributions to the Union’s Medical Fund, Pension Fund, Holiday and Va- cation Fund, Education Fund, and Supplemental Bene- fits Fund that have not been made since about May 1995, and reimburse unit employees for any expenses ensuing from its failure to make the required contribu- tions, in the manner set forth in the remedy section of this decision: All full-time and regular part-time journeymen, apprentices and worker trainees employed by the employer-members of the Association, but exclud- ing all managers, clericals, guards, professional employees and supervisors as defined in the Act. (b) Deduct and remit authorized union dues as re- quired by the 1994–1997 agreement since about May 1995 and reimburse the Union for its failure to do so, with interest, in the manner set forth in the remedy section of this decision. (c) Make the unit employees whole, with interest, for any loss of earnings attributable to its failure to pay wage rates in accord with the 1994–1997 agreement since about May 1995, in the manner set forth in the remedy section of this decision. (d) Offer immediate and full employment to any ap- plicants who would have been referred by the Union to the Respondent for employment in accord with arti- cle 18 of the 1994–1997 agreement since about May 1995, and make them whole for any loss of earnings and other benefits they may have suffered by reason of the Respondent’s failure to hire them, in the manner set forth in the remedy section of this decision. (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 pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained 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 no- tices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since May 1994. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 31, 1998 llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Peter J. Hurtgen, Member llllllllllllllllll J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 DECISIONS 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT unilaterally fail to abide by the terms of the 1994–1997 agreement with United Association of Plumbers and Pipefitters, AFL–CIO, Local 1 by failing or refusing to make monthly monetary contribu- tions to the Union’s Medical Fund, Pension Fund, Hol- iday and Vacation Fund, Education Fund, or Supple- mental Benefits Fund, to make authorized weekly sal- ary deductions from each employee covered by the collective-bargaining agreement for union dues and ini- tiation fees and to remit the deductions to the Union, to pay wages in accord with the specified rates, or to seek applicants for employment from the Union’s re- ferral list. 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 honor the terms of the 1994–1997 agree- ment and make the following unit employees whole by making all contractually required contributions to the Union’s Medical Fund, Pension Fund, Holiday and Va- cation Fund, Education Fund, and Supplemental Bene- fits Fund that have not been made since about May 1995, and reimburse unit employees for any expenses ensuing from our failure to make the required contribu- tions: All full-time and regular part-time journeymen, apprentices and worker trainees employed by the employer-members of the Association of Con- tracting Plumbers of the City of New York, Inc., but excluding all managers, clericals, guards, pro- fessional employees and supervisors as defined in the Act. WE WILL deduct and remit authorized union dues as required by the 1994–1997 agreement since about May 1995 and reimburse the Union for our failure to do so, with interest. WE WILL make our unit employees whole, with in- terest, for any loss of earnings attributable to our fail- ure to pay wage rates in accord with the 1994–1997 agreement since about May 1995. WE WILL offer immediate and full employment to any applicants who would have been referred to us by the Union for employment in accord with article 18 of the 1994–1997 agreement since about May 1995, and WE WILL make them whole for any loss of earnings and other benefits they may have suffered by reason of our failure to hire them. H. JONAS AND SON, INC. AND ITS ALTER EGO, J&H MECHANICAL