Catskill Mountain Mechanical Corp.

353 NLRB No. 46 Catskill Mountain Mechanical Corp. and its alter ego, Plant Maintenance Services, Inc. and Iron Workers Local Union No. 12, AFL–CIO. Case 3– CA–26213 November 5, 2008 DECISION AND ORDER BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN The General Counsel seeks summary judgment1 in this case on the ground that the Respondent has withdrawn its answers to the complaint. Upon a charge and an amended charge filed by the Union on February 28 and April 23, 2007, respectively, the General Counsel issued the complaint on June 25, 2007, against Catskill Moun- tain Mechanical Corp. (Respondent Catskill Mountain) and its alter ego Plant Maintenance Services, Inc. (Re- spondent Plant Maintenance), collectively called the Re- spondent, alleging that it has violated Section 8(a)(5), (3), and (1) of the Act. On July 9, 2007, Respondent Catskill Mountain and Respondent Plant Maintenance filed separate answers and, on March 21, 2008, separate amended answers to the complaint. On April 8, 2008, the General Counsel filed a Motion for Summary Judg- ment. On June 30, 2008, the Board denied the Motion for Summary Judgment.2 Thereafter, on August 25, 2008, by separate letters, Respondent Catskill Mountain and Respondent Plant Maintenance withdrew their an- swers. On September 12, 2008, the General Counsel filed an- other Motion for Summary Judgment with the Board. On September 17, 2008, the Board issued an order trans- ferring 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. Ruling on Motion for Default Judgment3 Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be 1 The General Counsel’s motion requests summary judgment on the ground that Respondent Catskill Mountain and Respondent Plant Main- tenance have withdrawn their answers to the complaint. Accordingly, we construe the General Counsel’s motion as a motion for default judgment. 2 352 NLRB No. 101. 3 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively states that unless the answer was received by the Regional Of- fice on or before July 9, 2007, the Board may find that the allegations in the complaint are true. Although Re- spondent Catskill Mountain and Respondent Plant Main- tenance filed separate answers and amended answers to the complaint, those answers were subsequently with- drawn. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be true.4 Accordingly, we grant the General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Catskill Mountain, a limited liability corporation with its principal place of business located at 19 Coons Road, Coeymans, New York, and a place of business located at 13880 State Route 92, West Coxsackie, New York, has been engaged in the building and construction industry as a contractor serving the cement and other industries. At all material times, Respondent Plant Maintenance, a corporation, with its place of business located at 13880 State Route 92, West Coxsackie, New York, has been engaged in the building and construction industry as a contractor serving the cement and other industries. At all material times, Respondent Catskill Mountain and Respondent Plant Maintenance have had substan- tially identical management, business purpose, opera- tions, equipment, customers, as well as ownership. On about a date presently unknown in September 2006, Respondent Plant Maintenance was established by Respondent Catskill Mountain as a subordinate instru- ment to and a disguised continuation of Respondent Catskill Mountain. Based on its operations described above, Respondent Plant Maintenance and Respondent Catskill Mountain constitute a single-integrated business and have been at all material times alter egos and a single employer within the meaning of the Act. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $100,000 and purchased and received at its office and jobsites located in the State of New York goods valued in excess of $50,000 from other enter- 4 See Maislin Transport, 274 NLRB 529 (1985). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 prises, including Greene Equipment Rentals, Northeast Gas Technologies, and Kivort Steel, each of which other enterprises had received these goods directly from out- side the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Iron Workers Local Union No. 12, AFL–CIO, 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 individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and are agents of the Respondent within the meaning of Section 2(13) of the Act: Brenda Shields Owner/Director—Respondent Catskill Mountain Martin Shields Manager—Respondent Catskill Mountain; Owner and Manager—Respon- dent Plant Maintenance Robert Austin Human Resources/Safety Offi- cer—Respondent Catskill Mountain; Operations Manager/Human Resources Officer—Respon- dent Plant Maintenance Orville Boehkle Supervisor—Respondent Cats- kill Mountain; Supervisor—Respondent Plant Maintenance Paul Bendick Field Operations Manager— Respondent Catskill Mountain The following employees (the unit) constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All journeymen and apprentices iron workers em- ployed by Respondent in the geographical jurisdic- tional area of the Union; excluding all other employees, office clericals, guards and supervisors as defined in the Act. On April 9, 2004, Respondent Catskill Mountain, an employer engaged in the construction industry, granted recognition to the Union as the limited exclusive collec- tive-bargaining representative of the unit by signing a letter of assent agreeing to be bound to the collective- bargaining agreement between the Union and Upstate Iron Workers Employer’s Association, Inc., effective May 1, 2003, to April 30, 2006, and any successor agreements, including the collective-bargaining agree- ment effective May 1, 2006, to April 30, 2009, without regard to whether the majority status of the Union has ever been established under the provisions of Section 9 of the Act. At all material times, based on Section 9(a) of the Act, the Union has been, and will be, the limited exclusive collective-bargaining representative of the unit.5 On about December 7, 2006, at the Lafarge Cement jobsite in Ravena, New York, the Respondent, by Paul Bendick, informed employees that they were being laid off because Respondent Catskill Mountain was abrogat- ing its collective-bargaining agreement with the Union and would no longer employ members of the Union. On about December 7, 2006, the Respondent laid off the following named employees: Liam Haley, Vernon Moore, and Clifton Winchester. The Respondent engaged in the conduct described above because the named employees joined and assisted the Union and engaged in concerted activities and to dis- courage employees from engaging in these activities. Since about October 2006, the Respondent has ceased to continue in force and effect the collective-bargaining agreement effective May 1, 2006, to April 30, 2009 re- ferred to above, and has unilaterally abrogated, re- scinded, and repudiated the collective-bargaining agree- ment. About December 4, 2006, in writing, the Union re- quested the Respondent to provide information, set forth in appendix A, concerning the relationship between Re- spondent Catskill Mountain and Respondent Plant Main- tenance. The information requested by the Union is rele- vant and necessary to the Union’s performance of its duties as the limited exclusive collective-bargaining rep- resentative of the unit. Since about December 4, 2006, the Respondent has failed to furnish the information. CONCLUSIONS OF LAW 1. By the acts and conduct described above, the Re- spondent has been interfering with, restraining, and co- ercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By the acts and conduct described above, the Re- spondent has been discriminating in regard to the hire, 5 The complaint alleges that Respondent Catskill Mountain is a con- struction industry employer and that it granted recognition to the Union without regard to whether the Union had established majority status. Accordingly, we find that the relationship was entered into pursuant to Sec. 8(f) of the Act and that the Union is therefore the limited 9(a) representative of the unit employees for the period covered by the con- tract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012 (1994). CATSKILL MOUNTAIN MECHANICAL CORP. 3 tenure, or terms or conditions of employment of its em- ployees, thereby discouraging membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act. 3. By the acts and conduct described above, the Re- spondent has been failing and refusing to bargain collec- tively with the limited exclusive collective-bargaining representative of its employees, in violation of Section 8(a)(5) and (1) of the Act. The unfair labor practices of the Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(3) and (1) by laying off Liam Haley, Vernon Moore, and Clifton Winchester on December 7, 2006, because they joined and assisted the Union and engaged in concerted activities and to discourage employees from engaging in these activities, we shall order the Respondent to offer Haley, Moore, and Winchester full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed. Fur- ther, the Respondent shall make Liam Haley, Vernon Moore, and Clifton Winchester whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to expunge from its files any and all references to the unlawful layoffs of Liam Haley, Vernon Moore, and Clifton Winchester, and to notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way. In addition, having found that the Respondent has vio- lated Section 8(a)(5) and (1) of the Act since October 2006 by failing to continue in force and effect the terms and conditions of the May 1, 2006, to April 30, 2009 collective-bargaining agreement with the Union and by unilaterally abrogating, rescinding, and repudiating the agreement, we shall order the Respondent to honor the terms and conditions of the agreement with the Union, and any automatic renewal or extension of it. We shall also order the Respondent to make whole its unit em- ployees for any loss of earnings and other benefits which they have suffered as a result of the Respondent’s failure to continue in effect all the terms of the agreement. Such amounts are 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, supra. We shall also order the Respondent to make all con- tractually required benefit fund contributions that have not been made since October 2006, including any addi- tional amounts due the funds in accordance with Merry- weather Optical Co., 240 NLRB 1213, 1216 fn. 6 (1979). The Respondent shall reimburse unit employees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be computed in the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons for the Retarded, supra.6 Further, in order to remedy the Respondent’s failure to utilize the Union’s hiring hall since October 2006, as required by the May 1, 2006, to April 30, 2009 collec- tive-bargaining agreement, we shall order the Respon- dent to offer immediate and full employment to those applicants who would have been referred to the Respon- dent for employment by the Union were it not for the Respondent’s unlawful conduct, and to make them whole for any losses suffered by reason of the Respondent’s failure to hire them.7 Backpay is to be computed in ac- cordance with F. W. Woolworth Co., supra, with interest as prescribed in New Horizons for the Retarded, supra. Reinstatement and backpay issues will be resolved by a factual inquiry at the compliance stage of the proceeding. J. E. Brown Electric, supra. Finally, having found that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with information that is necessary and relevant to its role as the limited exclusive bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the information it requested in its letter of December 4, 2006. 6 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the employer’s delin- quent contributions during the period of the delinquency, the Respon- dent will reimburse the employee, but the amount of such reimburse- ment will constitute a setoff to the amount that the Respondent other- wise owes the fund. 7 We leave to the compliance stage the determination of which, if any, employees fall into this category. In this regard, Chairman Schaumber does not now decide issues concerning the validity of J. E. Brown Electric, 315 NLRB 620 (1994). See concurring opinions in J. E. Brown, and in Coulter’s Carpet, 338 NLRB 732 (2002). See also dissenting opinions in M. J. Wood, 325 NLRB 1065, 1068 fn. 9 (1998), and Baker Electric, 317 NLRB 335, 336 fn. 4 (1995). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ORDER The National Labor Relations Board orders that the Respondent, Catskill Mountain Mechanical Corp. and its alter ego, Plant Maintenance Services, Inc., Coeymans and West Coxsackie, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Informing employees that they are being laid off because Respondent Catskill Mountain was abrogating its May 1, 2006, to April 30, 2009 collective-bargaining agreement with the Union and that Respondent Catskill Mountain would no longer employ members of the Un- ion. (b) Laying off employees because they form, join, or assist the Union, or any other labor organization, or en- gaged in concerted activities, or to discourage employees from engaging in these activities. (c) Failing and refusing to bargain collectively and in good faith with the Iron Workers Local Union No. 12, AFL–CIO as the limited exclusive collective-bargaining representative of the employees in the following unit by failing to continue in effect all of the terms and condi- tions of the May 1, 2006, to April 30, 2009 collective- bargaining agreement with the Union, and by unilaterally abrogating, rescinding, and repudiating the collective- bargaining agreement. The appropriate unit is: All journeymen and apprentices iron workers em- ployed by Respondent in the geographical jurisdic- tional area of the Union; excluding all other employees, office clericals, guards and supervisors as defined in the Act. (d) Failing to furnish the Union with information that is necessary and relevant to its role as the limited exclu- sive collective-bargaining representative of the unit em- ployees. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Liam Haley, Vernon Moore, and Clifton Winchester full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make whole Liam Haley, Vernon Moore, and Clifton Winchester for any loss of earnings and other benefits suffered as a result of their unlawful layoffs, with interest, in the manner set forth in the remedy sec- tion of this Decision. (c) Within 14 days from the date of this Order, remove from its files all references to the unlawful layoffs of Liam Haley, Vernon Moore, and Clifton Winchester, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way. (d) Continue in force and effect all the terms and con- ditions of the May 1, 2006, to April 30, 2009 collective- bargaining agreement with the Union as the limited ex- clusive collective-bargaining representative of the unit employees. (e) Make whole the unit employees for any loss of earnings and benefits suffered as a result of the Respon- dent’s unlawful conduct, with interest, in the manner set forth in the remedy section of this Decision. (f) Offer immediate and full employment to those ap- plicants who would have been referred to the Respondent for employment by the Union were it not for the Respon- dent’s unlawful conduct, and make them whole for any loss of earnings and other benefits suffered as a result of the Respondent’s failure to hire them, with interest, in the manner set forth in this decision. (g) Furnish the Union with the information it requested in its letter of December 4, 2006. (h) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Within 14 days after service by the Region, post at its facilities in Coeymans and West Coxsackie, New York, copies of the attached notice marked “Appendix B.”8 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 notices 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 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted By Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CATSKILL MOUNTAIN MECHANICAL CORP. 5 closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 4, 2006. (j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT inform employees that they are being laid off because we abrogated our collective-bargaining agreement with the Union and that we would no longer employ members of the Union. WE WILL NOT lay off employees because they form, join, or assist the Union, or any other labor organization, or engaged in concerted activities, or to discourage em- ployees from engaging in these activities. WE WILL NOT fail to bargain collectively and in good faith with the Iron Workers Local Union No. 12, AFL– CIO as the limited exclusive collective-bargaining repre- sentative of the employees in the following unit by fail- ing to continue in effect all of the terms and conditions of the May 1, 2006, to April 30, 2009 collective-bargaining agreement with the Union, and unilaterally abrogating, rescinding, and repudiating said collective-bargaining agreement. The appropriate unit is: All journeymen and apprentices iron workers em- ployed by us in the geographical jurisdictional area of the Union; excluding all other employees, office cleri- cals, guards and supervisors as defined in the Act. WE WILL NOT fail to furnish the Union with informa- tion that is necessary and relevant to its role as the lim- ited exclusive collective-bargaining representative 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, within 14 days from the date of this Order, offer Liam Haley, Vernon Moore, and Clifton Winches- ter full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Liam Haley, Vernon Moore, and Clifton Winchester whole for any loss of earnings and other benefits suffered as a result of their unlawful lay- offs, with interest. WE WILL, within 14 days from the date of this Order, remove from our files all references to the unlawful lay- offs of Liam Haley, Vernon Moore, and Clifton Win- chester, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the unlawful layoffs will not be used against them in any way. WE WILL continue in force and effect all the terms and conditions of the May 1, 2006, to April 30, 2009 collec- tive-bargaining agreement with the Union as the limited exclusive collective-bargaining representative of the unit employees. WE WILL make whole the unit employees for any loss of earnings and benefits suffered as a result of our unlaw- ful conduct, with interest. 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 our unlawful conduct, and make them whole for any loss of earnings and other benefits suffered as a result of our failure to hire them, with interest. WE WILL furnish the Union with the information it re- quested in its letter of December 4, 2006. CATSKILL MOUNTAIN MECHANICAL CORP. AND ITS ALTER EGO, PLANT MAINTENANCE SERVICES, INC.