Demand Electric Inc

National Labor Relations Board - Administrative Judge Opinions

Mar 29, 2011

29-CA-030433 (N.L.R.B. Mar. 29, 2011)

JD(NY)–09–11
Astoria, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DEMAND ELECTRIC, INC.
and Case Nos. 29-CA-30433
29-CA-30493
UNITED ELECTRICAL WORKERS OF
AMERICA, LOCAL 363, IUJAT
LOCAL UNION NO. 3 INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO
and Case No. 29-CB-14504
UNITED ELECTRICAL WORKERS OF
AMERICA, LOCAL 363, IUJAT
Sharon C. Chau, Esq., Counsel for the
General Counsel
Zachary R. Harkin, Esq., Counsel for
Local 363, IUJAT
Steven Goodman, Esq., Counsel for
Demand Electric, Inc.
Norman Rothfeld, Esq., Counsel for
Local 3, IBEW
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York
on March 16, 2011. The charge in 29-CA-30433 was filed on October 15, 2010 and the charge
in 29-CA-30493 was filed on November 23, 2010. The charge and the amended charges in 29-
CB-14504 were filed on October 19, December 17 and December 28, 2010.
A Consolidated Complaint was issued by the Regional Director on January 11, 2011.
This alleged as follows:
1. That notwithstanding the fact that Local 363 had been duly recognized by the
Employer as the collective bargaining agent for its electrical employees and was the lawful
representative pursuant to Section 9(a) of the Act, the Respondent employer, on or about June
2010, granted recognition and entered into a collective bargaining agreement with Local 3
IBEW. It is also asserted that the contract between the Employer and Local 3 contained a union
security clause requiring employees to become members of Local 3.
2. That by the aforesaid conduct, the Respondent employer violated Section 8(a)(1), (2)
and (3) of the Act.
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
2
3. That by the aforesaid conduct, the Respondent has withdrew recognition from Local
363 and refused to bargain in violation of Section 8(a)(5) of the Act.
4. That by the aforesaid conduct Local 3 violated Section 8(b)(1)(A) and (2) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the arguments of counsel, I make the following:
Findings of Fact
I. Jurisdiction
The parties agree and I find that the Employers is engaged in commerce as defined in
Section 2(6) and (7) of the Act. I also find that both unions involved in this case are labor
organizations within the meaning of Section 2(5) of the Act.
II. The alleged violations of the Act.
The facts in this case are not in dispute.
Demand Electric Inc., is engaged in providing electrical contracting services in the
construction industry in New York. Its president is Andreas Koukourmeilis and employs about
eight electricians.
In or about December 2005, the Employer recognized Local 363 as the collective
bargaining representative for its electrical employees. At about the same time, it joined the
Building Industry Electrical Contract Association which had a collective bargaining agreement
on behalf of its employer-members with Local 363. As a member of that Association, Demand
Electric agreed to be bound by that contract.
On November 20, 2008 the Association and Local 363 executed a memorandum of
agreement whereby the parties agreed to modify the existing contract and extend it through
November 30, 2011. On November 30, 2008, the Employer executed a memorandum of
agreement whereby it adopted the agreement that was negotiated between the Association and
Local 363. There is no dispute that the Employer has, pursuant to the terms of the contracts
with Local 363, made various contributions to that union’s benefit funds.
In or about May or June 2010, Mr. Koukourmeilis approached representatives of Local 3,
IBEW about the possibility of entering into a contract with that labor organization. He did this
because he was interested in being able to bid for publicly funded jobs; work that would be
under Project Labor Agreements that required electrical contractors to have an agreement with
Local 3. After several meetings, he agreed to recognize Local 3 as the representative of his
electrical workers. This is memorialized in a document signed by Koukourmeilis on June 9,
2010. By the same document, he also agreed to be bound by Local 3’s existing collective
bargaining agreement with the New York Electrical Contractors Association which was to run
until May 11, 2010.
According to Koukourmeilis, he had second thoughts about signing up with Local 3 and
refused to make payments to Local 3’s benefit funds. As a consequence, Local 3 filed an unfair
labor practice charge against Demand Electric. When the Region discovered that Demand
already was bound to a contract with Local 363, it decided to dismiss Local 3’s charge and issue
the instant Complaint against Demand and Local 3.
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
3
I note here that at no time during the discussions that led up to Demand’s recognition of
Local 3, was that union informed that the Company already had a contract with Local 363. As it
was the employer who approached Local 3 seeking a contractual relationship and as Local 3,
had no knowledge of the Company’s existing relationship with Local 363, it is clear to me that
Local 3 was duped and had no intention to violate the Act by accepting recognition under the
circumstances as they were then known to its representatives. 1
Analysis
In this case we have two union’s claiming the right to represent the same employees of a
single company.
The Employer in this case had recognized Local 363 in 2005 and had agreed to be
bound to that Union’s contract with an employer association. This was reaffirmed in 2008 and
by the terms of a document executed by the Employer, it agreed to be bound to a collective
bargaining agreement that was not set to expire until November 31, 2011. As the Employer’s
recognition of Local 363 occurred in 2005, it cannot be challenged at this time because of the
provisions of Section 10(b) of the Act. Gibbs & Cox Inc., 280 NLRB 953, 967 fn. 21 (1986).
Therefore, it is presumed that Local 363 had majority support at the time of recognition.
Additionally, the law also affords Local 366 an irrebuttable presumption of majority standing
during the life of its contract that runs from December 1, 2008 to November 31, 2011. Hajoca
Corp. 291 NLRB 104 (1988).
Because the Employer, in June 2010, had an existing contractual relationship with Local
363, it was not free to recognize and enter into a contract with another labor organization for the
same employees. Nor was it free to withdraw recognition from Local 363.
Therefore based on the above, I conclude that when the Employer recognized Local 3
and entered into a contract with that union, at a time when it was obligated to honor its contract
with Local 363, it violated Section 8(a)(1) and (2) of the Act. Additionally, as the contract to
which it agreed to bound contains a union security clause requiring its employees to join Local 3
and pay dues to that organization, I conclude that the Employer violated Section 8(a)(1) and (3)
of the Act. Finally, as the Employer’s actions in this case amounted to a withdrawal of
recognition from Local 363 during the life of its contract with that union, I conclude that it
violated Section 8(a)(1) and (5) of the Act.
With respect to Local 3, IBEW, the facts show that it was the Employer that approached
it about making a contract and that recognition was accepted and a contract was made at a time
when Local 3’s representatives were unaware and had not been put on notice that the Employer
already had a contract with Local 363. It therefore is clear that in these circumstances, where
the Employer was seeking to gain an economic benefit by making an arrangement with Local 3,
that this union was essentially duped. Unfortunately, the fact that Local 3 unwittingly entered
into a contract in circumstances where it was unaware that the Employer already had an
agreement with another labor organization cannot serve as a defense. International Ladies’
Garment Workers’ Union, AFL-CIO (Berhard-Altman Texas Corp.) v. NLRB, 366 US 731 (1961).

1 As the Employer is engaged in the construction industry, it would have been perfectly legal under
Section 9(f) of the Act for Local 3 to have entered into a collective bargaining agreement with it if
Demand’s employees had been unrepresented.
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
4
Conclusions of Law
1. By recognizing and entering into a collective bargaining agreement with Local 3,
IBEW, such contract containing union security and dues check off clauses, the Respondent
Demand Electric Inc., has violated Section 8(a)(1), (2) and (3) of the Act.
2. By accepting recognition from Demand Electric as the representative of its employees
and by entering into collective bargaining agreement containing union security and dues check-
off clauses, the Respondent, Local 3, IBEW, has violated Section 8(b)(1)(A) and (2) of the Act.
3. By withdrawing recognition from Local 363, IUJAT at time when that Union enjoyed an
irrebuttable presumption of majority status, the Respondent Demand Electric Inc., has violated
Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of the Act.
Remedy
Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
It is recommended that the Employer be ordered to withdraw and withhold recognition
from Local 3, IBEW and to cease and desist from giving force or effect to any collective
bargaining agreement covering its employees, unless and until that Union is certified by the
Board as the collective-bargaining representative of the employees.
It is further recommended that Local 3, IBEW be ordered to cease and desist from acting
as the bargaining representative of the aforesaid employees or give effect to its contract with the
Employer unless and until it is certified by the Board as the collective-bargaining representative
of the employees.
It is additionally recommended that the Employer and Local 3, IBEW be ordered, jointly
and severally, to reimburse all present and former employees who joined Local 3 for all initiation
fees, dues, and other moneys which may have been exacted from them together with interest
thereon as set forth in Florida Steel Corp., 231 NLRB 651 (1977).
Finally it is recommended that the Employer recognize and bargain with Local 363
IUJAT and to abide by the existing collective bargaining agreement. To the extent that the
Employer may have not paid wages or benefits to its employees as required by the contract, it is
recommended that it be ordered to make the employees whole, with interest, for such amounts.
Because Local 3 was an unwitting party in this case, it seems somewhat unfair to require
it to post a notice. However, it is customary practice of the Board to require the posting of
notices and it has reversed Judges who failed to provide for notices. See for example,
Windstream Corp., 352 NLRB 510 (2008). I shall therefore recommend that it post the Notice
attached hereto as Appendix B.
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
2
ORDER
A. The Respondent, Demand Electric Inc., its officers, agents, and representatives, shall
1. Cease and desist from
(a) Recognizing and entering into a collective bargaining agreement with Local 3, IBEW
and cease giving affect to the union security and dues check off clauses of that contract, unless
and until that labor organization is certified by the Board as the collective bargaining
representative of such employees.
(b) Withdrawing recognition from Local 363, IUJAT at time when that Union had an
irrebuttable presumption of majority status.
(c) In any like or related manner interfering with, restraining or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Withhold recognition from Local 3, IBEW, as the representative of its employees
unless and until that Union has been certified by the Board as their exclusive collective-
bargaining representative.
(b) Jointly and severally with Local 3, IBEW reimburse all former and present employees
employed for all initiation fees, dues, and other moneys which may have been exacted from
them with interest thereon in the manner provided in the remedy section of this Decision.
(c) Upon request recognize and bargain with Local 363, IUJAT as the collective
bargaining representative of its electrical employees and abide by the collective bargaining
agreement to which it is bound.
(d) Within 14 days after service by the Region, post at its Astoria, New York facility,
copies of the attached notice marked “Appendix A ” 3 Copies of the notice, on forms provided by
the Regional Director for Region 29, 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 are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed 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 employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
3 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.”
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
6
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 proceedings, 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 Respondent at any time since June 9, 2010.
(e) 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.
B. The Respondent, Local 3, IBEW, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Acting as the collective-bargaining representative of the employees of Demand
Electric Inc., unless and until it is certified by the Board as the collective bargaining
representative of such employees.
(b) Maintaining or giving any force or effect to any collective bargaining agreement
between it and Demand Electric Inc., until it is certified by the Board as the collective bargaining
representative of such employees.
(c) 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) Jointly and severally with Demand Electric Inc., reimburse all former and present
employees for all initiation fees, dues, and other moneys which may have been exacted from
them with interest thereon in the manner provided in the remedy section of this Decision.
(b) Within 14 days after service by the Region, post at its Astoria, New York facility,
copies of the attached notice marked “Appendix B ” 4 Copies of the notice, on forms provided by
the Regional Director for Region 29, 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 are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed 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 employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices 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 proceedings, 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 Respondent at any time since June 9, 2010.

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.”
JD(NY)–09–11
5
10
15
20
25
30
35
40
45
50
7
(c) 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 at Washington D.C., March 29, 2011.
____________________
Raymond P. Green
Administrative Law Judge
JD(NY)–09–11
APPENDIX A
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 ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT recognize or enter into a collective bargaining agreement with Local 3, IBEW, and WE WILL NOT
give effect to the union security and dues check-off clauses of that contract, unless and until that labor organization is
certified by the Board as the collective bargaining representative of our employees.
WE WILL NOT withdraw recognition from Local 363, IUJAT at time when that Union had an irrebuttable presumption
of majority status.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the rights guaranteed to
them by Section 7 of the Act.
WE WILL withhold recognition from Local 3, IBEW, as the representative of our employees until and unless that
Union has been certified by the Board as their exclusive collective-bargaining representative.
WE WILL jointly and severally with Local 3, IBEW, reimburse with interest, all former and present employees
employed for all initiation fees, dues, and other moneys which may have been exacted from them.
WE WILL upon request, recognize and bargain with Local 363, IUJAT as the collective bargaining representative of
our electrical employees and abide by the collective bargaining agreement to which we are bound.
Demand Electric, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two MetroTech Center, Suite 5100, Jay Street and Myrtle Avenue
Brooklyn, New York 11201-3838
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.
JD(NY)–09–11
APPENDIX B
NOTICE TO 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 violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT act as the collective-bargaining representative of the employees of Demand Electric unless and until
we are certified by the Board as the collective bargaining representative of such employees.
WE WILL NOT maintain or give any force or effect to any collective bargaining agreement between us and the above
named employer, unless and until we are certified by the Board as the collective bargaining representative of such
employees.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the rights guaranteed
to them by Section 7 of the Act.
WE WILL jointly and severally with the employer, reimburse with interest, all former and present employees for all
initiation fees, dues, and other moneys which may have been exacted from them.
Local 3, International Brotherhood of Electrical Workers,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two MetroTech Center, Suite 5100, Jay Street and Myrtle Avenue
Brooklyn, New York 11201-3838
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.