Benjamin Franklin Plumbing, 525 (2008)

Extract

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Benjamin Franklin Plumbing, 525 (2008)

MJ Mueller, LLC d/b/a Benjamin Franklin Plumbing and United Association of Plumbers and Gasfitters, Local Union No. 34. Cases 18–CA–18216, 18–CA–18419, and 18–CA–18504

May 30, 2008

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On December 28, 2007, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.2

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, MJ Mueller, LLC d/b/a Benjamin Franklin Plumbing, North Branch, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Nichole L. Burgess-Peel, Esq., for the General Counsel.

Travis D. Stottler, Esq. and Jonathan R. Cuskey, Esq. (Miller Law Office, P.A.), of Wyoming, Minnesota, for the Respondent.

Nicole M. Blissenbach, Esq. (Miller-O’Brien Cummins), of Minneapolis, Minnesota, for the Charging Party.

DECISION

Introduction

David I. Goldman, Administrative Law Judge. These cases involve a small commercial and residential plumbing business operated from an office in North Branch, Minnesota, some 40 miles north of Minneapolis. Its three bargaining unit employees organized in November 2006. The General Counsel of the National Labor Relations Board (the Board) alleges that in November 2006, before recognizing the Union, the employer engaged in an unlawful interrogation and unlawfully threatened an employee. The General Counsel alleges further unlawful threats and directives in June 2007. Collective bargaining, which began in November 2006, stalled in May 2007, and the General Counsel alleges that since May 2007 the employer has unlawfully engaged in overall surface bargaining without intent to reach agreement. Finally, the General Counsel alleges that two of the bargaining unit employees were unlawfully discharged in June 2007, in retaliation for their protected activity regarding a pay dispute with the Employer, and/or, alternatively, as part of an effort by the Employer to thwart its bargaining obligation.

Statement of the Case

Based on unfair labor practice charges filed by the United Association of Plumbers and Gasfitters, Local Union No. 34 (the Union), the General Counsel of the National Labor Relations Board issued a consolidated complaint on August 31, 2007,[1] alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) against MJ Mueller, LLC d/b/a Benjamin Franklin Plumbing (Ben Franklin or the Respondent). The General Counsel issued an amendment to the consolidated complaint on October 10 adding allegations that the Respondent violated Section 8(a)(1) and (5) of the Act. The Respondent filed answers to the consolidated complaint and to the amendment to the consolidated complaint denying all alleged violations. At the outset of the trial, the General Counsel orally moved to amend the complaint to add an additional allegation in support of the 8(a)(5) allegation. That motion was granted.[2]

This dispute was tried in Minneapolis, Minnesota, on October 16, 2007. Counsel for the General Counsel and counsel for the Respondent filed briefs in support of their positions on November 20. On the entire record, including my observation of the demeanor of the witnesses and other indicia of credibility, and after considering the briefs filed by the parties, I make the following

Jurisdiction

The Respondent admits and I find that at all material times it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based on the record, I also find that at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act.

Findings of Fact

A. Recognition of the Union

The Respondent operates two Benjamin Franklin Plumbing franchises from its office in North Branch, Minnesota. The Respondent’s owner is Michael Mueller. In the fall of 2006, Mueller employed three plumbers in addition to office personnel. They were Steven LaMont, Donald Doty, and Keven Vandewetering. Mueller, himself a plumber, also performed plumbing and other service work for the business.

In the fall of 2006, Mueller hired a consultant to analyze the business and offer advice on changes that could be implemented to make the business more profitable. The conclusions (as set forth in R. Exh. 8) included pointed concerns about the productivity and efficiency of staff. A number of recommendations were proposed, including increased efforts to tr...

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