Tri-County Electric

National Labor Relations Board - Board Decisions

Oct 10, 1997

324 N.L.R.B. 115 (N.L.R.B. 1997)

1
324 NLRB No. 115
1 Although the General Counsel’s motion indicates the complaint
was served by certified mail on the Respondent but was returned to
the Regional Office unclaimed, failure, or refusal to accept service
cannot defeat the purposes of the Act. See, e.g., Michigan Expediting
Service, 282 NLRB 210 fn. 6 (1986). Furthermore, the complaint
was served on Respondent’s bankruptcy counsel by certified mail,
and personally served on Steven C. Wellnitz, the Respondent’s
owner.
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Triple County Electric, Inc. d/b/a Tri-County Elec-
tric and International Brotherhood of Elec-
trical Workers, Local 890, AFL–CIO. Case 30–
CA–13735
October 10, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon a charge filed by the Union on March 27,
1997, the General Counsel of the National Labor Rela-
tions Board issued a complaint on June 27, 1997,
against Triple County Electric, Inc. d/b/a Tri-County
Electric, the Respondent, alleging that it has violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. Although properly served copies of the charge
and complaint,1 the Respondent failed to file an an-
swer.
On September 5, 1997, the General Counsel filed a
Motion for Summary Judgment with the Board. On
September 9, 1997, the Board issued an order transfer-
ring 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 Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated July 31, 1997,
notified the Respondent that unless an answer were re-
ceived by August 7, 1997, a Motion for Summary
Judgment would be filed.
Although the Region was notified by notices dated
July 24, 1997, that Respondent Tri-County Electric
and/or Triple County Electric had commenced bank-
ruptcy proceedings, it is well established that the insti-
tution of bankruptcy proceedings does not deprive the
Board of jurisdiction or authority to entertain and proc-
ess an unfair labor practice case to its final disposition.
Phoenix Co., 274 NLRB 995 (1985). Board proceed-
ings fall within the exception to the automatic stay
provisions for proceedings by a governmental unit to
enforce its police or regulatory powers. See id., and
cases cited therein.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business at Janesville, Wis-
consin, has been an electrical contractor in the con-
struction industry doing residential, commercial, and
office construction. During the year ending December
31, 1996, the Respondent, in conducting its operations,
purchased and received goods and materials at its facil-
ity in Janesville, Wisconsin, valued in excess of
$50,000 from distributors and suppliers located within
the State of Wisconsin, which had received these
goods directly from points outside the State of Wiscon-
sin. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
All electricians employed by the Respondent, but
excluding guards and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(a) of the Act.
On May 21, 1992, the Respondent entered into a let-
ter of assent to the collective-bargaining agreement be-
tween the Union and Janesville-Beloit Div., Wisconsin
Chapter, NECA, Inc. effective March 1, 1992, and
agreed to be bound to such future agreements unless
timely notice was given. The Respondent, an employer
engaged in the building and construction industry,
granted recognition to the Union as the exclusive col-
lective-bargaining representative of the unit without re-
gard to whether the majority status of the Union had
ever been established under the provisions of Section
9(a) of the Act. Such recognition has been embodied
in successive collective-bargaining agreements, the
most recent of which is effective for the period March
1, 1995, to March 1, 1998 (the 1995–1998 agreement).
Since about September 1996, and continuing to date,
the Respondent has repudiated the 1995–1998 agree-
ment and has failed to adhere to its terms, including,
but not limited to, failing to contact the Union as the
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Member Higgins does not pass on whether he agrees with the
majority view in J. E. Brown. Rather, in the absence of a contest
on any issue (i.e., in this ‘‘no answer’’ case). Member Higgins
agrees, for institutional reasons, to adhere to the majority view in
J. E. Brown.
3 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
sole and exclusive source of referrals of applicants for
employment of unit employees and failing to pay its
unit employees the wages and benefits provided in the
1995–1998 agreement. The Respondent engaged in this
conduct without prior notice to the Union, and without
affording the Union an opportunity to bargain with the
Respondent with respect to this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the limited exclusive
collective-bargaining representative of its employees,
and has thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has repudiated
the 1995–1998 agreement and has failed to adhere to
its terms, including, but not limited to, failing to con-
tact the Union as the sole and exclusive source of re-
ferrals of applicants for employment of unit employees
and failing to pay its unit employees the wages and
benefits provided in the 1995–1998 agreement, we
shall order the Respondent to comply with these terms
and conditions of the 1995–1998 collective-bargaining
agreement with the Union for the period from March
1, 1995, through March 1, 1998, and to make whole
its unit employees for any loss of earnings and benefits
and expenses ensuing from its failure to comply with
these terms and conditions of the 1995–1998 agree-
ment since about September 1996.
Specifically, we shall order a reinstatement and
backpay remedy for those applicants who would have
been referred to the Respondent were it not for the Re-
spondent’s failure to contact the Union as the sole and
exclusive source of referrals of applicants for employ-
ment of unit employees as provided in the 1995–1998
agreement. J. E. Brown Electric, 315 NLRB 620
(1994).2 The Respondent will have the opportunity to
introduce evidence on reinstatement and backpay is-
sues at the compliance stage. Id. 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).
In addition, we shall order the Respondent to make
the unit employees whole for any loss of earnings at-
tributable to its failure to pay its unit employees wages
in accord with the 1995–1998 agreement since about
September 1996. Backpay shall be computed in ac-
cordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons for the Retarded,
supra.
Finally, we shall order the Respondent to make
whole its unit employees for its failure to pay any
other benefits in accord with the 1995–1998 agreement
since about September 1996, including making any de-
linquent contributions to fringe benefit funds, including
any additional amounts due the funds in accordance
with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, the Respondent shall re-
imburse unit employees for any expenses ensuing from
its failure to make the required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.3
ORDER
The National Labor Relations Board orders that the
Respondent, Triple County Electric, Inc. d/b/a Tri-
County Electric, Janesville, Wisconsin, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating the 1995–1998 agreement between
International Brotherhood of Electrical Workers, Local
890, AFL–CIO, and Janesville-Beloit Div., Wisconsin
Chapter, NECA, Inc. or failing to adhere to its terms,
including, but not limited to, failing to contact the
Union as the sole and exclusive source of referrals of
applicants for employment of unit employees or failing
to pay its unit employees the wages and benefits pro-
vided in the 1995–1998 agreement.
(b) In any like or related manner interfering with,
restraining, 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) Comply with all the terms and conditions of the
1995–1998 agreement, including, but not limited to, re-
quiring the Respondent to contact the Union as the
sole and exclusive source of referrals of applicants for
3TRI-COUNTY ELECTRIC
4 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
employment of the following unit employees and to
pay the unit employees contractual wages and benefits:
All electricians employed by the Respondent, but
excluding guards and supervisors as defined in the
Act.
(b) Make whole the unit employees for any loss of
earnings and benefits and expenses ensuing from its
failure to comply with the terms and conditions of the
1995–1998 agreement since about September 1996 in
the manner set forth in the remedy section of this deci-
sion.
(c) Offer immediate and full reinstatement to those
applicants who would have been referred to the Re-
spondent were it not for the Respondent’s failure to
contact the Union as the sole and exclusive source of
referrals of applicants for employment of unit employ-
ees as provided in the 1995–1998 agreement and make
them whole, with interest, in the manner set forth in
the remedy section of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Janesville, Wisconsin, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices 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 closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since March 24, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 10, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT repudiate the 1995–1998 agreement
between International Brotherhood of Electrical Work-
ers, Local 890, AFL–CIO, and Janesville-Beloit Div.,
Wisconsin Chapter, NECA, Inc. or fail to adhere to its
terms, including, but not limited to, contacting the
Union as the sole and exclusive source of referrals of
applicants for employment of unit employees and pay-
ing our unit employees the wages and benefits pro-
vided in the 1995–1998 agreement.
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 comply with the terms and conditions of
the 1995–1998 collective-bargaining agreement, includ-
ing, but not limited to, contacting the Union as the sole
and exclusive source of referrals of applicants for em-
ployment of the following unit employees and paying
the unit employees contractual wages and benefits:
All electricians employed by us, but excluding
guards and supervisors as defined in the Act.
WE WILL make whole the unit employees for any
loss of earnings and benefits and expenses ensuing
from our failure to comply with the terms and condi-
tions of the 1995–1998 agreement since about Septem-
ber 1996 in the manner set forth in a decision of the
National Labor Relations Board.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer immediate and full reinstatement to
those applicants who would have been referred to us
were it not for our failure to contact the Union as the
sole and exclusive source of referrals of applicants for
employment of unit employees as provided in the
1995–1998 agreement and WE WILL make them whole,
with interest, in the manner set forth in a decision of
the National Labor Relations Board.
TRIPLE COUNTY ELECTRIC, INC. D/B/A
TRI-COUNTY ELECTRIC