Standard Plumbing & Appliance Co., (2009)

Standard Plumbing & Appliance Co., Inc. and Plumbers Local No. 15. Cases 18–CA–18966 and 18–CA–19001

July 2, 2009

DECISION AND ORDER

By Chairman Liebman and Member Schaumber

The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answers to the complaint and consolidated complaint. Upon a charge and an amended charge filed on February 5 and March 5, 2009, respectively, in Case 18–CA–18966, and a charge filed on March 16, 2009, in Case 18–CA–19001, by Plumbers Local Union No. 15 (the Union), the General Counsel issued an order consolidating cases and consolidated complaint on April 8, 2009, against Standard Plumbing & Appliance Co., Inc. (the Respondent) alleging that it has violated Section 8(a)(5), (3), and (1) of the Act. The Respondent filed answers to the complaint and the consolidated complaint. However, on May 5, 2009, the Respondent withdrew its answers.

On May 21, 2009, the General Counsel filed a Motion for Default Judgment with the Board. On May 26, 2009, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted.[1] The Respondent filed no response. The allegations in the motion are therefore undisputed.

Ruling on Motion for Default Judgment[2]

Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the 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 and consolidated complaint separately and affirmatively stated that the answers must be received by the Regional Office on or before March 24 and April 22, 2009, respectively. Although the Respondent filed separate answers to the complaint and consolidated complaint, it subsequently withdrew those answers at the hearing held on May 5, 2009. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint and consolidated complaint must be considered to be true.[3] 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, the Respondent, a Minnesota corporation with an office and place of business in St. Louis Park, Minnesota, has been a plumbing contractor for residential customers. During the 12-month period preceding the issuance of the consolidated complaint, the Respondent, in conducting its business operations described above, purchased and received at its St. Louis Park, Minnesota facility goods and materials valued in excess of $50,000 from SPS Companies Inc., located in St. Louis Park, Minnesota, which in turn received these goods and materials directly from points located outside the State of Minnesota. During the 12-month period preceding the issuance of the consolidated complaint, the Respondent, in conducting its business operations described above, derived gross revenue from the sale of goods and services in excess of $500,000.

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 Plumbers Local No. 15 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 agents of the Respondent within the meaning of Section 2(13) of the Act:

Derek Judkins - Owner and Chief Executive Officer Ollie Ness - Owner

The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act:

All journeymen, foremen, general foremen and apprentices employed at Respondent’s 8015 Minnetonka Boulevard, St. Louis Park, Minnesota facility; excluding all other employees including administrative and office clerical employees, and guards and supervisors as defined in the National Labor Relations Act.

On a date not precisely known by the General Counsel but prior to December 31, 2006, the Respondent, an employer engaged in the building and construction industry, agreed to be bound by the collective-bargaining agreements between the Union and Metro Association of Plumbing-Heating-Cooling Contractors, Inc. (PHCC).

At all material times prior to April 30, 2008, the Respondent was bound to collective-bargaining agreements between the Union and PHCC, including an agreement effective from May 1, 2005, through April 30, 2008.

By the conduct described above, at all material times prior to April 30, 2008, the Respondent recognized the Union as the exclusive collective-bargaining representative of a multiemployer collective-bargaining unit without regard to whether the majority status of the Union had ever been established under the provisions of Section 9(a) of the Act.

In about January 2007, PHCC expelled the Respondent from membership in the PHCC.

On about May 1, 2008, the Respondent, by adopting the collective-bargaining agreement described below, recognized the Union as the exclusive collective-bargaining representative of the employees in the unit without regard to whether the majority status of the Union had ever been established under the provisions of Section 9(a) of the Act.

At all material times, based on Section 9(a) of the Act, the Union has been the limited exclusive collective-bargaining representative of the unit.[4]

On about May 1, 2008, the Union and the Respondent reached complete agreement on the terms and conditions of employment of the unit when the Respondent adopted the collective-bargaining agreement between the Union and PHCC effective from May 1, 2008, to April 30, 2011 (the 2008–2011 Agreement). In about November 2008, the Union requested the Respondent to execute a written contract containing the 2008–2011 Agreement.

1. Since about November 2008, the Respondent, by Derek Judkins, has failed and refused to execute the 2008–2011 Agreement.

2. In about November 2008, the Respondent notified the Union that it was withdrawing recognition from the Union as the limited exclusive collective-bargaining representative of the unit effective immediately or in the alternative, no later than on January 1, 2009.

3. In about November 2008, but no later than January 1, 2009, the Respondent withdrew recognition from the Union as the limited exclusive collective-bargaining representative of the unit.

4. In November 2008, the Respondent ceased making contributions to the Union’s medical, pension, apprenticeship, and training funds, as required by the 2008–2011 Agreement.

5. Effective January 1, 2009, the Respondent implemented wage rates and other terms and conditions of employment inconsistent with the terms and conditions of the 2008–2011 Agreement.

   The subjects set forth in paragraphs 4 and 5 relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining, and the Respondent engaged in the conduct without prior notice to the Union.

   By the conduct described above in paragraphs 4 and 5, the Respondent failed to continue in effect the terms and conditions of the 2008–2011 Agreement, and thereby modified the 2008–2011 Agreement without the Union’s consent.

6. On about January 1, 2009, the Respondent caused the termination of its employee Carl Mayfield by requiring him either to quit or to agree to the terms and conditions of employment the Respondent unilaterally implemented.

   The Respondent engaged in the conduct described in paragraph 6 because Mayfield and other employees supported or assisted the Union, and to discourage employees from engaging in those activities.

7. Since about November 2008, the Respondent, by Derek Judkins, engaged in the following acts and conduct.

   (a) In about November 2008, at the Respondent’s St. Louis Park, Minnesota facility, Judkins threatened an employee that the Respondent intended to be nonunion and to no longer abide by the 2008–2011 Agreement.

   (b) In about December 2008, at the Respondent’s St. Louis Park, Minnesota facility, Judkins informed an employee that the employee would receive benefits different from those described in the 2008–2011 Agreement, in spite of the fact that the Agreement had not expired.

   (c) On about March 9, 2009, in a telephone call, Judkins threatened and interrogated an employee concerning the employee’s role with respect to an investigation conducted by the Board.

   By engaging in the conduct described in paragraph 7, the Respondent has interfered with, restrained or coerced its employees in the exercise of their Section 7 rights.

   Conclusions of Law

1. By the conduct described in paragraphs 1 through 5, the Respondent has been failing and refusing to bargain collectively with the limited exclusive collective-bargaining representative of its employees within the meaning of Section 8(d) of the Act, in violation of Section 8(a)(5) and (1) of the Act. By the acts and conduct described in paragraphs 4 and 5, the Respondent has failed to continue in effect all the terms and conditions of the 2008–2011 Agreement, and thereby modified the Agreement without the Union’s consent.

2. By the conduct described in paragraph 6, the Respondent has been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act.

3. By the conduct described in paragraph 7, the Respondent has been interfering with, restraining, and coercing employees in the exercise of the...