L.M. Insulating Contractors

626 315 NLRB No. 85 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD L.M. Insulating Contractors, Inc., L.M. Insulating Contractors, Inc. d/b/a L.M. Insulating Con- tractors and Supply Company, Larry Minnifield d/b/a L.M. Insulating Contractors and Larry Minnifield d/b/a L.M. Insulation Supplies and International Association of Heat and Frost Insulators and Asbestos Workers Local 23, AFL–CIO. Cases 4–CA–21918 and 4– CA–22045 November 23, 1994 DECISION AND ORDER BY MEMBERS STEPHENS, DEVANEY, AND BROWNING Upon charges and amended charges filed by Inter- national Association of Heat and Frost Insulators and Asbestos Workers Local 23, AFL–CIO (the Union) on July 23 and September 2 and 28, 1993, the General Counsel of the National Labor Relations Board issued a consolidated complaint on April 29, 1994, against L.M. Insulating Contractors, Inc., L.M. Insulating Con- tractors, Inc., d/b/a L.M. Insulating Contractors and Supply Company, Larry Minnifield d/b/a L.M. Insulat- ing Contractors and Larry Minnifield d/b/a L.M. Insu- lation Supplies (the Respondents), alleging that they have violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served with copies of the charges and consolidated complaint, the Respondents failed to file an answer. On July 18, 1994, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On July 25, 1994, 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 Respond- ents 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, un- less good cause is shown. In addition, the consolidated complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the consolidated complaint will be considered admit- ted. Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Region, by letter dated June 22, 1994, notified the Respondents that unless an answer were received by July 8, 1994, 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 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, L.M. Contractors, Inc. has been a Pennsylvania corporation engaged in the con- struction industry as an insulation contractor with a fa- cility located in Harrisburg, Pennsylvania. On about December 5, 1991, L.M. Contractors, Inc. registered with the Commonwealth of Pennsylvania to conduct business under the fictitious name L.M. Insulating and Supply Company. At all material times, Larry Minnifield, a sole pro- prietor, has been engaged in the construction industry as an insulation contractor with a facility located in Harrisburg, Pennsylvania. On about September 21, 1987, and October 16, 1990, respectively, Larry Minnifield registered with the Commonwealth of Penn- sylvania to conduct business under the fictitious names L.M. Insulating Contractors and L.M. Insulation Sup- plies. During the time period material here, L.M. Contrac- tors, Inc. and/or Larry Minnifield as a sole proprietor have also done business as L.M. Insulating Contractors and Supply, Inc., L.M. Insulating Contractors, L.M. In- sulating and Supplies, Inc., L.M. Insulation and Sup- ply, Inc., L.M. Insulation Contractors, Inc., L&M Insu- lating Contractors and L.M. Insulating & Supply, Inc. At all material times, L.M. Contractors, Inc., Larry Minnifield as a sole proprietor, and the other entities referred to above (Respondents) have been affiliated business enterprises with common officers, ownership, directors, management and supervision; have adminis- tered a common labor policy; have shared common premises and facilities; have provided services for, and made sales to, each other; have interchanged personnel with each other; and have held themselves out to the public as a single integrated business enterprise. Based on the operations described above, the Re- spondents constitute a single integrated business enter- prise and a single employer within the meaning of the Act. During the 12-month period ending August 31, 1993, the Respondents, in conducting the business op- erations described above, provided services valued in excess of $50,000 for the McClure Company within the Commonwealth of Pennsylvania. The McClure Company, a Pennsylvania corporation, with an office and place of business in Harrisburg, Pennsylvania, is engaged in the construction industry as a mechanical contractor doing plumbing, heating, air-conditioning, and industrial process piping work. 627 L.M. INSULATING CONTRACTORS 1 In the absence of any need to determine in this proceeding whether the parties’ relationship is governed by Sec. 9 or 8(f), Mem- ber Browning would not reach that issue. 2 For reasons stated in his concurring opinion in J. E. Brown Elec- tric, Member Stephens would not include a reinstatement order. During the 12-month period ending on August 31, 1993, the McClure Company purchased and received goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania and was directly engaged in interstate commerce. We find that the Respondents are employers en- gaged 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 In about August 1990, the Respondents, employers engaged in the building and construction industry as described above, granted recognition to the Union as the exclusive collective-bargaining representative of a unit of the Respondents’ employees (the unit), by en- tering into a collective-bargaining agreement (the agreement) with the Union for the period from August 1, 1990, to July 31, 1993, without regard to whether the majority status of the Union had ever been estab- lished under Section 9(a) of the Act. The unit de- scribed in article XII of the agreement has at all mate- rial times been appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. For the period from August 1, 1990, to July 31, 1993, based on Section 9(a) of the Act, the Union has been the limited exclusive collective-bargaining representative of the unit.1 Since about January 24, 1993, the Respondents have failed to continue in effect all the terms and conditions of the agreement by: (i) hiring employees not referred by the Union in violation of article VII of the agree- ment; (ii) failing to make payments to the Union Health and Welfare Fund, Pension Fund, Annuity Fund and Vacation Fund as required by article X of the agreement; and (iii) failing to participate in proceed- ings of the Trade Board and to comply with Trade Board decisions as required by article V of the agree- ment. Although the terms and conditions of employment described above are mandatory subjects for the pur- poses of collective bargaining, the Respondents en- gaged in the conduct described above without the Union’s consent. On about April 19, 1993, the Respondents, by letter, withdrew their recognition of the Union as the limited exclusive collective-bargaining representative of the unit. On about April 28, 1993, the Union requested that the Respondents furnish it with all payroll records for the period from April 1, 1990, through April 28, 1993, along with copies of all contracts or agreements for work entered into by the Respondents during the same period. The information requested by the Union, is nec- essary for, and relevant to, the Union’s performance of its duties as the limited exclusive collective-bargaining representative of the unit. Since about April 28, 1993, the Respondents have failed and refused to furnish the Union with the infor- mation it requested. CONCLUSION OF LAW By the conduct described above, the Respondents have been failing and refusing to bargain collectively with the limited exclusive bargaining representative of their employees, and have thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifi- cally, having found that the Respondents have violated Section 8(a)(5) and (1) by failing since January 24, 1993, to continue in effect provisions contained in arti- cles V, VII, and X of the agreement dealing with refer- rals from the Union, benefit fund payments, and Trade Board proceedings, we shall order the Respondents to honor those provisions of the agreement. In accordance with our decision in J. E. Brown Electric, 315 NLRB No. 84 (issued today), we shall order the Respondent to offer immediate and full em- ployment to those applicants who would have been re- ferred to the Respondent for employment by the Union were it not for the Respondent’s unlawful conduct, and to make them whole for any loss of earnings and other benefits they may have suffered by reason of the Re- spondent’s failure to hire them. Backpay is to be com- puted 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). Reinstatement and backpay issues will be resolved by a factual inquiry at the compliance stage of the pro- ceeding. J. E. Brown Electric, supra.2 Further, we shall order the Respondent to make whole its unit employees, and those employees who would have been referred, by making all delinquent fringe benefit fund contributions owed since January 24, 1993, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees, and those 628 DECISIONS OF THE 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 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.’’ employees who would have been referred, for any ex- penses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heat- ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 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 Re- tarded, supra. In addition, having found that the Respondents un- lawfully withdrew recognition from the Union on April 19, 1993, we shall order the Respondents to recognize the Union as the limited exclusive bargaining rep- resentative of the unit employees. Finally, having found that the Respondents have un- lawfully failed to furnish the Union information it re- quested on April 28, 1994, we shall order the Re- spondents to furnish the Union with the information requested. ORDER The National Labor Relations Board orders that the Respondents, L.M. Insulating Contractors, Inc., L.M. Insulating Contractors, Inc., d/b/a L.M. Insulating Con- tractors and Supply Company, Larry Minnifield d/b/a L.M. Insulating Contractors and Larry Minnifield d/b/a L.M. Insulation Supplies, Harrisburg, Pennsylvania, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to recognize and bargain with the Inter- national Association of Heat and Frost Insulators and Asbestos Workers Local 23, AFL–CIO as the limited exclusive collective-bargaining representative of the employees in the unit described in article XII of the agreement, by hiring employees not referred by the Union in violation of article VII; failing to make pay- ments to the Union Health and Welfare Fund, Pension Fund, Annuity Fund and Vacation Fund as required by article X; failing to participate in the proceedings and comply with the decisions of the Trade Board pursuant to article V of the agreement; withdrawing recognition from the Union; and failing and refusing to furnish the Union with requested information that is relevant to, and necessary for, the performance of its duties as the limited exclusive representative of the unit employees. (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) Recognize the Union as the limited exclusive collective-bargaining representative of the unit employ- ees. (b) Honor articles V, VII, and X of the agreement regarding referrals from the Union, benefit fund pay- ments, and Trade Board proceedings. (c) Offer immediate and full employment to those applicants who would have been referred to the Re- spondent for employment by the Union were it not for the Respondent’s unlawful conduct, and make them whole for any loss of earnings and other benefits suf- fered by reason of the Respondent’s failure to hire them, in the manner set forth in the remedy section of this decision. (d) Make whole unit employees, and employees who would have been referred, by making all delinquent fringe benefit fund contributions owed since January 24, 1993, and reimburse all such employees for any expenses ensuing from the Respondent’s failure to make the required contributions, in the manner set forth in the remedy section of this decision. (e) Furnish the Union with the information it re- quested on April 28, 1993. (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Harrisburg, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Re- gional Director for Region 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained 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 notices are not al- tered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 fail or refuse to recognize and bargain with the International Association of Heat and Frost Insulators and Asbestos Workers Local 23, AFL–CIO 629 L.M. INSULATING CONTRACTORS as the limited exclusive collective-bargaining rep- resentative of the employees in the unit described in article XII of the agreement, by hiring employees not referred by the Union in violation of article VII; failing to make payments to the Union Health and Welfare Fund, Pension Fund, Annuity Fund and Vacation Fund as required by article X; failing to participate in the proceedings and comply with the decisions of the Trade Board pursuant to article V of the agreement; withdrawing recognition from the Union; and failing and refusing to furnish the Union with requested infor- mation that is relevant to, and necessary for, the per- formance of its duties as the limited exclusive rep- resentative of the unit employees. 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 recognize the Union as the limited exclu- sive collective-bargaining representative of the unit employees. WE WILL honor articles V, VII, and X of the agree- ment regarding referrals from the Union, benefit fund payments, and Trade Board proceedings. WE WILL offer immediate and full employment to those applicants who would have been referred to us for employment by the Union were it not for the our unlawful conduct, and make them whole for any loss of earnings and other benefits suffered by reason of our failure to hire them, with interest. WE WILL make whole unit employees, and employ- ees who would have been referred, by making all de- linquent fringe benefit fund contributions owed since January 24, 1993, and reimburse all such employees for any expenses ensuing from our failure to make the required contributions, with interest. WE WILL furnish the Union with the information it requested on April 28, 1993. L.M. INSULATING CONTRACTORS, INC., L.M. INSULATING CONTRACTORS, INC. D/B/A L.M. INSULATING CONTRACTORS AND SUPPLY COMPANY, LARRY MINNI- FIELD D/B/A L.M. INSULATING CON- TRACTORS AND LARRY MINNIFIELD D/B/A L.M. INSULATION SUPPLIES