Waterworks Plumbing and Backflow, Inc.and Comfortworks Heating & Cooling, Inc.single employer; DGR o

National Labor Relations Board - Board Decisions

Sep 12, 2014

03-CA-027665 (N.L.R.B. Sep. 12, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
WATERWORKS PLUMBING & BACKFLOW, INC.;
COMFORTWORKS HEATING & COOLING, INC.,
Single Employer; DGR OF WNY, INC. d/b/a THE PLUMBER
and 72 DEGREES, Alter Ego/Single Employer
and
JOEL B. TUCCIARONE, an Individual Cases 03-CA-027665
03-CA-064979
and
UNITED ASSOCIATION, PLUMBERS &
STEAMFITTERS LOCAL UNION NO. 22
SUPPLEMENTAL ORDER
On May 14, 2012, the Board issued its Decision and Order in the above cases,
directing Waterworks Plumbing & Backflow, Inc. (“Respondent Waterworks”) to, inter
alia, make bargaining unit employees and benefit funds whole for any losses they have
suffered as a result of Respondent Waterworks’ unfair labor practices in violation of
Section 8(a)(5) of the National Labor Relations Act.
On September 25, 2012, the United States Court of Appeals for the Second
Circuit entered its judgment in Civil No. 12-2132, enforcing in full the Board’s Order.
Thereafter, the Region issued a Compliance Specification and Notice of Hearing
on July 31, 2013, alleging that Respondent Waterworks, along with other named
Respondents, Comfortworks Heating & Cooling, Inc. (Single Employer), DGR of WNY,
Inc., d/b/a The Plumber and 72 Degrees (Single Employer/Alter Ego), and Joel B.
Tucciarone (collectively referred to as “Respondents”), are obligated to pay backpay
and fund contributions totaling $897,841.30, plus interest. The Respondents filed
answers to the Compliance Specification.
Following issuance of the Compliance Specification, the parties reached an
agreement on a written Stipulation Consenting to Amount of Backpay, Schedule for
Payment, and the Entry of a Supplemental Board Order and Consent Judgment
(“Stipulation”) providing for the payment by Respondent Waterworks of $75,000
pursuant to an installment payment schedule as full compliance with the Board’s
enforced Decision and Order. The Stipulation specifically provides that all parties
waive the filing of an answer to the Compliance Specification, hearing, Administrative
Law Judge’s Decision, the filing of exceptions and briefs, oral argument before the
Board, the making of findings of fact and conclusions of law by the Board, and all
further proceedings to which the parties may be entitled under the Act or the Board’s
Rules and Regulations.
The Stipulation also provides that the Stipulation, together with the Board’s May
14, 2012 Decision and Order, the September 25, 2012 judgment of the United States
Court of Appeals for the Second Circuit enforcing the Board’s Decision and Order,
and the Compliance Specification and Notice of Hearing, constitute the entire record
herein.
The Stipulation further provides for submission of the Stipulation to the Board for
its approval and the issuance of a Supplement Order.
Pursuant to the Stipulation, if Respondent Waterworks does not comply with the
terms of the Stipulation, and fails to cure the non-compliance within 14 days’ notice of
such non-compliance, the Regional Director may without further notice reissue the
Compliance Specification previously issued, and file a motion for default judgment with
the Board on the allegations of the Compliance Specification, and the Board may issue
a Second Supplemental Order finding the allegations of the Compliance Specification to
be admitted, and requiring all Respondents, jointly and severally, to fully remedy the
violations found by, among other things, paying $897,841.30, plus interest, to the
named employees and benefit funds. The United States Court of Appeals for any
appropriate circuit, upon application by the Board, may enter a judgment enforcing the
Second Supplemental Order. The only issue that may be raised before the Board and
the Court of Appeals is whether Respondent Waterworks defaulted under the terms of
the Stipulation.
The Stipulation is approved and made a part of the record herein, and the
proceeding is transferred to and continued before the Board in Washington, D.C. for the
entry of a Supplemental Order pursuant to the provisions of the Stipulation.
Upon the basis of the Stipulation and the entire record in the case, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, the National Labor
Relations Board makes the following:
ORDER
Respondent Waterworks Plumbing & Backflow, Inc., its officers, agents,
successors, and assigns, shall take the following affirmative action to effectuate the
policies of the National Labor Relations Act, as amended:
Within 14 days of the date of this Order, pay the initial installment payment of
$5,000, plus Respondent’s share of Federal Insurance Contributions Act (FICA) on
wages totaling $1,591.66 (which is the backpay portion of the $5,000 installment). The
Respondent shall pay the FICA rate in effect at the time installment payments are
made. Thereafter, for the following 28 months, on the 20th day of each month, pay an
installment payment of $2,500, plus Respondent’s share of FICA on wages totaling
$795.83 (which is the backpay portion of the $2,500 installment), until the entire
settlement amount of $75,000.00 has been paid. Monthly installments may be prepaid.
Increments paid over and above the monthly installment amount shall be applied to the
entire settlement amount which may, depending on the amount of the overage, reduce
the number of monthly installments.
On or before each monthly installment payment due date, Respondent shall mail
or deliver to Region Three, to the attention of the Compliance Officer, a check made
payable to the National Labor Relations Board. The National Labor Relations Board will
deposit the check into an escrow account. The Regional Director for Region Three
shall, in the Regional Director’s sole discretion, determine the prorated amount of
backpay to be distributed to the employees named in the Compliance Specification and
to the benefit funds.
Dated, Washington, D.C., September 12, 2014 By direction of the Board:
Gary Shinners
Executive Secretary