Local Lodge S-76 of the International Association of Machinists & Aerospace Workers, DL-1, AFL-CIO

359 NLRB No. 17 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Local Lodge S-76 of the International Association of Machinists & Aerospace Workers, DL-1, AFL– CIO and South Jersey Energy Service Plus. Case 04–CB–083627 November 8, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN The Acting General Counsel seeks default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge and an amended charge filed by South Jersey Energy Service Plus (SJE) (the Employer) on June 21 and August 21, 2012, respectively, the Acting General Counsel issued a complaint and notice of hearing on August 29, 2012, against Local Lodge S-76 of the International Associa- tion of Machinists & Aerospace Workers, DL-1, AFL– CIO (the Respondent) alleging that it has violated Sec- tion 8(b)(3) of the Act. The Respondent failed to file an answer. On September 24, 2012, the Acting General Counsel filed a Motion for Default Judgment with the Board. Thereafter, on September 28, 2012, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed no response. The allega- tions 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 Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be 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 the answer must be received by the Regional Office on or before September 12, 2012. Further, the undis- puted allegations in the Acting General Counsel’s motion disclose that the Region, by letter dated September 14, 2012, notified the Respondent that unless an answer was received by September 21, 2012, a motion for default judgment would be filed. Nevertheless, the Respondent failed to file an answer. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the Acting 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, SJE, a New Jersey corporation with its offices in Folsom, New Jersey, has been a New Jersey corporation engaged primarily in the residential installation and repair of heating and air-conditioning units and other appliance services. During the 12-month period preceding issuance of the complaint, SJE, in conducting its business operations described above, received gross revenues in excess of $500,000 and purchased and received at the warehouse goods valued in excess of $50,000 directly from points outside the State of New Jersey. We find that SJE is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Respondent Union is a labor organiza- tion 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 or acted in the capacity set forth opposite their respective names and have been agents of the Re- spondent within the meaning of Sections 2(13) and 8(b) of the Act. Daniel J. Chmelko–International Business Agent Laurence G. Powell–President since December 2010 Brian Askins–President until December 2010 Jeannie Abbott–Recording Secretary Shawn Garrity–Former Shop Steward Bill Urban–Former Shop Steward The following employees of SJE (the unit) constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: Appliance service technicians, appliance dispatch & service representatives, installers, plumbers, helpers and parts order entry clerks hired after April 15, 2003, and appliance service technicians, AST inspectors, ap- pliance dispatch service representatives and parts order entry clerks who transferred from South Jersey Gas on September 1, 2004. At all material times, SJE has recognized the Respon- dent as the exclusive collective-bargaining representative of the unit. This recognition has been embodied in suc- cessive collective-bargaining agreements, the most recent of which was effective by its terms from January 15, 2005, through January 14, 2009. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 At all material times, since at least January 15, 2005, based on Section 9(a) of the Act, the Respondent Union has been the exclusive collective-bargaining representa- tive of the unit. On about December 22 and 29, 2011, SJE and the Re- spondent reached complete agreement (the contract), containing the terms and conditions of employment of the unit. The contract was effective by its terms from October 27, 2009, through August 31, 2014. On January 31, 2012, SJE emailed the contract to the Respondent and requested that the Respondent execute the contract. Since about January 31, 2012, the Respondent has failed and refused to execute the contract. Since about February 1, 2012, the Respondent has failed to respond to SJE’s request that it execute the con- tract embodying the terms and conditions of employment agreed to with SJE, as described above. CONCLUSION OF LAW By failing and refusing, since about January 31, 2012, to execute the contract, and failing, since about February 1, 2012, to respond to SJE’s request that it execute the contract, the Respondent has been failing and refusing to bargain collectively and in good faith with the Employer within the meaning of Section 8(d) of the Act in violation of Section 8(b)(3) of the Act. The Respondent’s unfair labor practices 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 violated Section 8(b)(3) of the Act by failing, since about January 31, 2012, to execute the contract, we shall order the Respondent to execute and implement the contract and give retroactive effect to its terms. ORDER The National Labor Relations Board orders that the Respondent, Local Lodge S-76 of the International Asso- ciation of Machinists & Aerospace Workers, DL-1, AFL–CIO, Williamstown and Pitman, New Jersey, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to execute the complete agreement (the contract), reached with South Jersey En- ergy Service Plus (the Employer), on December 22 and 29, 2011, and effective by its terms from October 27, 2009, through August 31, 2014, containing the terms and conditions of employment of the following unit employ- ees: Appliance service technicians, appliance dispatch & service representatives, installers, plumbers, helpers and parts order entry clerks hired after April 15, 2003, and appliance service technicians, AST inspectors, ap- pliance dispatch service representatives and parts order entry clerks who transferred from South Jersey Gas on September 1, 2004. (b) Failing and refusing to respond to the Employer’s request to execute the contract. (c) In any like or related manner restraining or coerc- ing 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) Immediately execute the contract. (b) Give retroactive effect to the provisions of the con- tract. (c) Within 14 days after service by the Region, post at its business office and meeting places, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 4, 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 and members are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its members by such means.2 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Within 14 days after service by the Region, deliver to the Regional Director for Region 4 signed copies of the notice in sufficient numbers for posting by the Em- 1 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." 2 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. MACHINISTS LODGE S-76 (SOUTH JERSEY ENERGY SERVICE PLUS) 3 ployer at its Folsom, New Jersey facility, if it wishes, in all places where notices to employees are customarily posted. (e) 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. Dated, Washington, D.C. November 8, 2012 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Brian E. Hayes, Member ______________________________________ Richard F. Griffin, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES AND MEMBERS 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 on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to execute the complete agreement, the contract, reached with South Jersey En- ergy Service Plus, the Employer, on December 22 and 29, 2011, and effective by its terms from October 27, 2009 through August 31, 2014, containing the terms and conditions of employment of the following unit employ- ees: Appliance service technicians, appliance dispatch & service representatives, installers, plumbers, helpers and parts order entry clerks hired after April 15, 2003, and appliance service technicians, AST inspectors, ap- pliance dispatch service representatives and parts order entry clerks who transferred from South Jersey Gas on September 1, 2004. WE WILL NOT fail and refuse to respond to the Em- ployer’s request to execute the contract. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL immediately execute the contract. WE WILL give retroactive effect to the provisions of the contract. LOCAL LODGE S-76 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, DL-1, AFL–CIO