Dixon Commercial Electric

National Labor Relations Board - Board Decisions

May 14, 1991

302 N.L.R.B. 946 (N.L.R.B. 1991)

946
302 NLRB No. 160
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The master agreements, in effect at the time the Respondent signed the
above letters of assent, were for terms of 1 year. Subsequently, the master
agreements were negotiated for terms of either 1 or 2 years. Irrespective of
the length of these master agreements, their expiration dates were always May
31 for the Inside Agreement and November 30 for the Residential Agreement.
2 After May 31, 1985, the Respondent neither received report forms from
nor submitted monthly fringe benefits and contribution reports to the des-
ignated collection agency, AMCOR Bank. There is no evidence that the Union
was aware of the discontinued use of the report forms.
Dixon Commercial Electric Inc. and International
Brotherhood of Electrical Workers, AFL–CIO,
Local Union 364. Case 33–CA–8259
May 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On a charge filed on February 24, 1988, by Inter-
national Brotherhood of Electrical Workers, AFL–CIO,
Local Union 364 (Union), the General Counsel of the
National Labor Relations Board by the Regional Direc-
tor for Region 33 issued a complaint on June 8, 1988,
against the Respondent, Dixon Commercial Electric
Inc., alleging that it violated Section 8(a)(5) and (1) of
the National Labor Relations Act. The Respondent
filed a timely answer admitting in part and denying in
part the allegations of the complaint.
On September 20, 1989, the Respondent, the Union,
and counsel for the General Counsel filed with the
Board a stipulation of facts, with exhibits attached, and
a motion to have the proceeding transferred to the
Board. The parties agreed that the stipulation of facts
(with attached exhibits), charge, complaint and notice
of hearing, and answer, would constitute the entire
record in this case, and that no oral testimony was nec-
essary or desired by any of the parties. The parties
waived a hearing and the issuance of an administrative
law judge’s decision and agreed to submit the case di-
rectly to the Board for findings of fact, conclusions of
law, and a Decision and Order. On November 1, 1989,
the Board issued an order granting the motion, approv-
ing the stipulation and transferring the proceeding to
the Board. Thereafter, the General Counsel and the Re-
spondent filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
Dixon Commercial Electric Inc., an Illinois corpora-
tion with an office and place of business at Dixon, Illi-
nois, is an electrical contractor and performs electrical
construction work on both residential and commercial
construction projects. During the 12 months preceding
the issuance of the complaint, a representative period,
the Respondent provided services valued in excess of
$50,000 to several enterprises located within the State
of Illinois, which enterprises are engaged in interstate
commerce and meet the Board’s jurisdictional stand-
ards for other than indirect inflow or outflow of goods
and services. Accordingly, in agreement with the stipu-
lation of the parties, 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 the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
During relevant periods, the Respondent was a
member of the Northern Illinois Chapter of the Na-
tional Electrical Contractors Association (NECA),
which in turn had negotiated a series of master collec-
tive-bargaining agreements with the Union covering
electrical work in connection with residential construc-
tion projects (Residential Agreement) and a series of
agreements covering work on nonresidential construc-
tion projects, including commercial electrical construc-
tion (Inside Agreement). On June 1, 1976, the Re-
spondent signed a Letter of Assent—A (Inside Agree-
ment) which bound it to the master Inside Agreement
negotiated between the Union and NECA, and on De-
cember 1, 1976, the Respondent signed a Letter of As-
sent—A (Residential Agreement) which bound it to the
Respondent-NECA master Residential Agreement. The
letters of assent, which were valid 8(f) prehire agree-
ments, by their terms bound the employers until they
gave written notice to NECA and the Union at least
150 days before the anniversary date of the respective
agreement—May 31 in the case of Inside Agreements
and November 30 in the case of Residential Agree-
ments.1
On September 23, 1983, the Respondent sent a letter
of withdrawal to NECA, and its membership termi-
nated as of October 25, 1983. Thereafter, on December
21, 1984, the Respondent sent the Union a notice of
its intent to terminate its contract with Local 364 ‘‘on
its anniversary date of May 31, 1985.’’ The Respond-
ent complied with the terms and conditions of the In-
side and Residential Agreements until May 31, 1985,
but ceased to do so after that date.2
Thereafter, in a June 12, 1985 letter to the Respond-
ent, the Union protested the Respondent’s failure at a
commercial construction project in Whiteside County,
Illinois, to meet the prevailing wages and conditions in
that geographic area. In declaring the limited purpose
of this protest, the letter stated that the Union did not
‘‘desire recognition.’’
947DIXON COMMERCIAL ELECTRIC
3 Negotiations for the Residential Agreement between NECA and the Union
for the term December 1, 1986, to November 31, 1988, began in August 1986
and continued through February 9, 1987, the date an agreement was agreed
on and signed.
4 In light of our disposition of this case on procedural grounds, we find it
unnecessary to resolve the parties’ positions on the merits. See fn. 6, infra.
5 We find no merit in the Respondent’s claim that it had clearly and un-
equivocally given notice of its repudiation of the Residential Agreement in its
letter to the Union on December 21, 1984, and that the Union acquiesced to
this in a letter dated June 12, 1985, stating that it did not desire recognition.
The Respondent’s December 21 letter providing notice of its intent to termi-
nate its contract with the Union ‘‘on its anniversary date of May 31, 1985,’’
directly referred only to the Inside Agreement for commercial construction,
which expired as of that date. Further, the Union’s June 12, 1985 disclaimer
of a recognitional objective was made in relation to a protest at a commercial
construction site. In neither of these letters was the Residential Agreement
clearly implicated.
On December 1, 1986, the Union filed a grievance
under the Residential Agreement claiming that on No-
vember 7, 1986, the Respondent failed to pay the
wages and make benefit payments as set forth in the
Residential Agreement. In correspondence between the
parties in December 1986, the Respondent took the po-
sition that its withdrawal letter of December 21, 1984,
severed its relationship with the Union, including the
application of the Residential Agreement. The Union
argued that the Respondent remained bound to both
the Inside and Residential Agreements. Then, on De-
cember 30, 1986, the Respondent’s attorney wrote to
the Union stating, inter alia, that ‘‘Dixon Commercial
Electric will vehemently resist any attempt by your
union to claim any rights over it, nor will [it] attend
any grievance scheduled by you since it is not bound
by the terms of any agreements.’’3
Thereafter, the Respondent refused to respond to the
Union’s request, in January 1987, for certain informa-
tion relevant to contract compliance (concerning the
Residential Agreement). In telephone conversations be-
tween April and June 1987 the Union’s attorney spoke
of possibly taking legal action against the Respondent,
and the Respondent’s attorney responded that the Re-
spondent was in a precarious financial position and
might go out of business if the Union took such action.
In response to the Union’s request for a written state-
ment about the Respondent’s financial difficulties, the
Respondent’s attorney wrote on June 15 that the Re-
spondent ‘‘intends to liquidate . . . . ’’ However, the
Respondent thereafter decided not to liquidate, and the
Union obtained information on or about August 18,
1987, indicating that the Respondent was still per-
forming electrical work. On or about September 8,
1987, the Union was notified that the Respondent had
not liquidated. In January 1988, the Union made an-
other written demand for information regarding the Re-
spondent’s performance of residential construction
work. That demand triggered more letters of position
from both parties and resulted in the Union’s filing of
the instant unfair labor practice charge on February 24,
1988. In the complaint which issued on June 8, 1988,
the General Counsel alleges that the Respondent vio-
lated Section 8(a)(5) and (1) by failing and refusing to
furnish the Union with the information requested in
January 1988 and since on or about August 24, 1987
(6 months before the charge), refusing to abide by the
relevant Residential Agreement and withdrawing rec-
ognition from the Union during the term of that agree-
ment.
B. Contentions of the Parties
The Respondent contends that the complaint is
barred by Section 10(b) of the Act which provides
that, ‘‘[N]o complaint shall issue based upon any un-
fair labor practice occurring more than six months
prior to the filing of the charge with the Board . . . .’’
It argues that there can be no dispute that the Union
had clear and unequivocal notice of the repudiation on
May 31, 1985, of the Residential Agreement by its let-
ter of December 21, 1984, and that the Union acqui-
esced in this repudiation by its statement in a June 15,
1985 letter that the Union was not seeking recognition.
The Respondent further argues that the Union received
additional notice of the repudiation on December 30,
1986, but failed to file any charge with the Board until
over 1 year later, on February 24, 1988.4
The General Counsel contends that the complaint is
not barred by Section 10(b) because the Respondent’s
attorney did not state categorically in December 1986
that the Respondent had repudiated the Residential
Agreement, and acted equivocally in later communica-
tions by asking the Union’s attorney to contact him be-
fore instituting legal action, asking what the Union
would do if the Respondent went out of business, and
inducing the Union not to file charges by misleading
it into believing that the Respondent was liquidating its
business and thereafter concealing the fact that it was
continuing to perform electrical contracting work.
C. Discussion
The stipulated facts show that the Respondent’s De-
cember 30, 1986 letter notified the Union that the Re-
spondent would resist the Union’s claim to ‘‘any rights
over it’’ and denied being ‘‘bound by the terms of any
agreements.’’ This letter amounted to a clear and un-
equivocal repudiation of the bargaining relationship be-
tween the Respondent and the Union as reflected in the
expired Residential Agreement, or for that matter, of
any contractual or bargaining relationship between
those parties that may have existed as of the date of
the letter.5 It is further evident that there then was no
pending master collective-bargaining residential agree-
ment, inasmuch as the successor agreement to the one
which had expired November 30, 1986, was not agreed
to or signed until February 9, 1987. The record is de-
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the General Counsel does not claim there was any contract in
effect when the Respondent sent the December 30, 1986 letter, she argues that
the Respondent was barred under the doctrine of Retail Associates, 120 NLRB
388 (1958), from repudiating its bargaining obligation on December 30, 1986.
In particular, she argues that multiemployer bargaining was then underway and
the Respondent had not, before this, timely revoked its grant of bargaining au-
thority to the multiemployer association. But all of the operative facts to prove
this contention are, as noted above, outside the 10(b) period, so that argument
is not properly before us. The General Counsel therefore cannot logically rely
on Farmingdale Iron Works, 249 NLRB 98 (1980), enfd. mem. 661 F.2d 910
(2d Cir. 1981), for the proposition that, even if the Union was aware of the
Respondent’s repudiation more than 6 months prior to the filing of its charge,
the General Counsel would still be entitled to an order, but one limited to re-
covery for contract noncompliance during the 6 months preceding the filing
of the charge. In Farmingdale, the Board considered the applicability of Sec.
10(b) to two separate kinds of contract repudiations. First, it found there had
been no unequivocal expression of an intent to repudiate the entire collective-
bargaining agreement outside the 10(b) period; second, with respect to allega-
tions that the employer had failed to pay contractually required benefits, the
Board held that these failures were ‘‘separate and distinct’’ violations and that
therefore those occurring within 6 months of the filing of the charge were not
barred by Sec. 10(b). Here, as shown above, the Respondent clearly mani-
fested an intent to repudiate outside the 10(b) period, so we do not reach the
question of contractual noncompliance even for a 6-month period. A & L Un-
derground, 302 NLRB 467 (1991).
7 Typical of situations in which such tolling occurs are cases where employ-
ers conceal their nonunion operations from the bargaining representative of
their union employees, and the 10(b) period commences on the union’s becom-
ing aware of the nonunion activity. See, e.g., Burgess Construction, 227
NLRB 765 (1977), enfd. 596 F.2d 378 (9th Cir. 1979), cert. denied 444 U.S.
940 (1979).
8 There should not have been any doubt in the minds of the parties that the
repudiation pertained to residential work and any related agreement. By then,
the parties’ bargaining relationship concerning commercial work and the Inside
Agreement had long been terminated, as is evident from the Respondent’s De-
cember 21, l984 letter referred to previously, and the Union’s disclaimer in
June 1985 of a recognitional object in picketing one of the Respondent’s com-
mercial sites.
9 See Drukker Communications, 258 NLRB 734 (1981).
10 Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960).
11 Member Devaney agrees with his colleagues that the complaint in this
case is barred by Sec. 10(b). The critical events which gave rise to the instant
dispute arose in December 1986, prior to the date the multiemployer associa-
tion and the Union reached an agreement on the terms of a successor agree-
ment to the 1984–1986 Residential Agreement. As the General Counsel must
rely on evidence of pre-10(b) events to establish the violation, the complaint
is time-barred. See Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S.
411 (1960); A & L Underground, 302 NLRB 467 (1991). (Member Devaney’s
dissenting opinion).
void of any evidence that the Respondent, subsequent
to its December 30, 1986 repudiation letter, reentered
into a bargaining relationship of any kind with the
Union. On the basis of these facts, we find that the
General Counsel is barred by the provisions of Section
10(b) from alleging that the Respondent violated Sec-
tion 8(a)(5) and (1), as described above, based on an
unfair labor practice charge filed February 24, 1988,
almost 14 months after the Respondent had clearly and
unequivocally repudiated its contractual and bargaining
relationship with the Union.6 A & L Underground,
supra.
We reject the General Counsel’s argument that the
Union did not have unequivocal notice of the Re-
spondent’s repudiation of the Residential Agreement in
December 1986, and that the statements by the Re-
spondent’s attorney, on and after April 23, 1987 con-
cerning the Respondent’s going out of business, caused
a tolling of the 10(b) period such that the unfair labor
practice charge in this case was timely filed. The Gen-
eral Counsel correctly points out that Section 10(b) is
subject to equitable principles and may be tolled where
the Respondent has fraudulently concealed its unlawful
conduct.7 We find, however, that these principles are
inapplicable here because this record shows no attempt
by the Respondent to conceal its repudiation of its con-
tractual and bargaining relationship concerning residen-
tial work.8
The General Counsel’s argument is flawed in two
respects. First, it relies on a December 11, 1986 letter
that the Respondent’s attorney wrote to the Union dis-
puting the merits of the latter’s December l grievance.
That letter, however, is not the basis for the Respond-
ent’s assertion that the Union had sufficient notice of
the Respondent’s termination of its bargaining relation-
ship with that labor organization. Second, and most
significantly, the General Counsel has failed to note
the Respondent’s December 30, 1986 letter and to take
into account the explicit message it conveyed, namely,
repudiation of any contractual and bargaining relation-
ship that existed with the Union. Consequently, be-
cause the 10(b) period commenced on December 30,
1986,9 the Respondent’s subsequent statements relating
to its possible liquidation did not serve to conceal the
Respondent’s repudiation or toll the running of the
10(b) period. In the latter regard, the liquidation state-
ments did not have the effect of rescinding the Re-
spondent’s act of repudiation and, hence, the Union
cannot excuse its failure to file charges on the ground
that it relied on such statements to its detriment.
Accordingly, because the instant unfair labor prac-
tice charge alleging violations of Section 8(a)(5) and
(1) was filed more than 6 months after the Union’s ac-
tual notice of the Respondent’s repudiation of its con-
tractual and bargaining relationship, the entire com-
plaint is barred by Section 10(b).10 Therefore, we shall
dismiss the complaint.11
ORDER
The complaint is dismissed.