Rayel Electric Company

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1327 (N.L.R.B. 1982)

RAYEL ELECTRIC COMPANY
Rayel Electric Company and Local Union 716, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO-CLC. Case 23-CA-7791
March 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 15, 1981, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, counsel for Re-
spondent filed exceptions and a supporting brief,
and counsel for the General Counsel and the
Charging Party filed cross-exceptions and briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, George Black,
an Individual doing business as Rayel Electric
Company and Rayel Enterprises Incorporated
d/b/a Rayel Electric Company, Houston, Texas,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
I The Administrative Law Judge presumed that, had Respondent not
repudiated its contract with the Union, it would have reemployed the
three laid-off employees because it found their work satisfactory. and
thereby would have reestablished the Union's majority status. Those indi-
viduals, however, may not have been the ones referred through the
hiring hall. Moreover, as found by the Administrative Law Judge, the
Union's majority status was established independently of, and was not af-
fected by, Respondent's failure to rehire them
I Respondent was a sole proprietorship when the instant complaint
issued, and became incorporated during the course of this proceeding
Accordingly, we shall amend the recommended Order and notice to pro-
vide joint and several liability on the part of George Black, an Individual
doing business as Rayel Electric Company
We have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WIL.L NOT refuse to bargain collectively
with Local Union 716, International Brother-
hood of Electrical Workers, AFL-CIO-CLC,
as the exclusive bargaining representative of
our employees in the following appropriate
unit with regard to rates of pay, wages, hours,
and other terms and conditions of employ-
ment:
All journeyman and apprentice electricians,
excluding all other employees, guards, and
watchmen and supervisors as defined in the
Act.
WE WILL NOT fail and refuse to abide by the
terms of the past and current collective-bar-
gaining agreements to which we have been
bound since February 17, 1978, between
Southeast Texas Chapter, National Electrical
Contractors Association, Inc., and the above-
named labor organization.
WE WILL NOT fail and refuse to furnish the
Union with information necessary for it to
carry out its collective-bargaining functions,
and WE WILL furnish the Union with the infor-
mation it has requested.
WE WILL NOT withhold contributions to the
various trusts as prescribed by the above con-
tracts, or otherwise depart from the terms of
such contracts.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILl., upon request, bargain collectively
with the above-named Union as the exclusive
bargaining representative of our employees in
the above-described unit with regard to rates
of pay, wages, hours, and other terms and con-
ditions of employment.
WE WILL. comply with the terms and condi-
tions of the aforementioned collective-bargain-
ing agreements, and give them full retroactive
260 NLRB No. 190
1327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect, including contributions to the various
trusts as prescribed therein.
GEORGE BIACK, AN INDIVIDUAI
DOING BUSINESS AS RAYItI. EI.ECTRIC
COMPANY, AND RAYEI. ENTERPRISILS,
INCORPORATED D/B/A RAYF I EI.C-
TRIC COMPANY
DECISION
STATEMINI' 01 THI- CASI-
GERAI.D A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Houston, Texas, on February 24
and 25, 1981. The charge was filed on January 23, 1980,
by Local Union 716, International Brotherhood of Elec-
trical Workers, AFL-CIO-CLC (herein called the
Union).
Thereafter, on August 4, 1980, the Regional Director
for Region 23 of the National Labor Relations Board
(herein called the Board) issued a complaint and notice
of hearing alleging a violation by Rayel Electric Compa-
ny (herein called Respondent) of Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended (herein
called the Act).
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing, briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Union.
Upon the entire record and based on my observation
of the witnesses and consideration of the briefs submit-
ted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an electrical contractor with its princi-
pal place of business located in Houston, Texas. In the
course and conduct of its business operations, Respond-
ent annually purchases and receives at its Houston,
Texas, jobsites products, goods, and materials valued in
excess of $50,000 from suppliers who, in turn, receive
said products, goods, and materials directly from points
and places located outside the State of Texas. Addition-
ally, Respondent performs electrical service work valued
in excess of $50,000 for employers directly engaged in
commerce within the meaning of the Act. It is admitted,
and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
I11. ITHE Al.l.liED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er Respondent has violated Section 8(a)(5) and (1) of the
Act by repudiating its collective-bargaining agreement
with the Union, and by refusing to furnish the Union
with certain requested information.
B. The Facts
Respondent's business operations commenced in
March 1977. Respondent's owner, George Black, was
the only individual performing electrical work for Re-
spondent until on or about September 1977, when he
hired his brother, David Black, apparently as a helper.
Thereafter, in order to hire certain additional employees
with the requisite expertise, George Black contacted the
Union and, on January 13, 1978, signed a "Letter of
Assent-A" as follows:
In signing this Letter of Assent, the undersigned
firm does hereby authorize SOUTHEAST TEXAS
CHAPTER, NATIONAL ELECTRICAL CON-
TRACTORS ASSOCIATION, INC., as its collec-
tive bargaining representative for all matters con-
tained in or pertaining to the current approved
Inside Labor Agreement between the SOUTH-
EAST TEXAS CHAPTER, NATIONAL ELEC-
TRICAL CONTRACTORS ASSOCIATION,
INC., and LOCAL UNION 716, INTERNATION-
AL BROTHERHOOD OF ELECTRICAL
WORKERS. This authorization, in compliance with
the current approved Labor Agreement, shall
become effective on the Ist day of June, 1977. It
shall remain in effect until terminated by the under-
signed employer giving written notice to the
SOUTHEAST TEXAS CHAPTER, NATIONAL
ELECTRICAL CONTRACTORS ASSOCI-
ATION, INC., and to the LOCAL UNION at least
one hundred fifty (150) days prior to the then cur-
rent anniversary date of the aforementioned ap-
proved Labor Agreement.
Upon executing the letter of assent-A, and thereby be-
coming bound by the then current collective-bargaining
agreement between the Union and Southeast Texas
Chapter, National Electrical Contractors Association,
Inc. (NECA), extending from June 1, 1977, to May 29,
1979, Black received appropriate referral cards and hired
three journeyman electricians, all of whom were union
members, pursuant to the terms of the exclusive hiring
hall provisions of the contract. Thus, Dan Sneed, a jour-
neyman electrician, was "officially"' hired on January
13, 1978, and Al Hass and Gordon Matheson, both jour-
neyman electricians, were hired on February 17 and June
25, 1978, respectively. The three employees were paid in
accordance with the contract scale, and Respondent paid
the various fringe benefits and contributed to the various
Sneed was actually hired by and commenced working for Respond-
ent about the first week of [)ecember 1977
1328
RAYEL ELECTRIC COMPANY
funds on their behalf in accordance with the contract.2
Each of these employees drove a service truck, and were
dispatched to jobs by George Black. Thus, it is clear that
at all times subsequent to February 17, 1978, the date
that Respondent hired Hass, a majority of Respondent's
employees were union members and desired to be repre-
sented by the Union.
Respondent's work force, described above, did not
change until on or about September 19, 1978, when Re-
spondent found it necessary to employ certain additional
employees on a short-term basis in order to complete
various jobs. None of the additional employees were re-
ferred to Respondent by the Union, nor were they paid
in accordance with the contract.
Respondent's records show that Sneed and Matheson
worked on a regular basis until on or about December 1,
1978, when they were laid off. Hass worked on a regular
basis until sometime in November 1978, when he sus-
tained an injury and was unable to work, although he
was also carried on Respondent's records as an employee
until on or about December 1, 1978.
Horace Fox, assistant business representative of the
Union, testified that he phoned Black in December 1978,
upon learning that Respondent had laid off the journey-
man electricians. Black advised Fox that the layoff was a
result of lack of work, and that Black intended to oper-
ate the business by himself until the work picked up, at
which time he would again request referrals through the
Union. Thereafter, through the spring and summer of
1979, Fox checked with Black about four or five times
on a periodic basis, and Black would reiterate that he
was operating the one-man shop himself, and would
place a call for electricians when work became available.
In October 1979, Fox noticed a Rayel Electric truck at
a jobsite and, upon investigating, discovered two em-
ployees performing electrical work. 3 Fox contacted
Black about the matter, and Black contended that the
work in question was not electrical work covered by the
contract, again reiterating that he would call the Union if
he needed electricians. Thereupon, on October 18, 1979,
Fox sent the following letter to Black:
It has recently come to our attention that you are
currently engaging in the performance of electrical
work, and that you have some employees on your
payroll performing such work.
As you know, your Company has a contract with
this Local Union covering employees engaged in
electrical work. In order that we may determine
whether or not there has been a violation of our
contract, you are hereby requested to provide the
following information:
(1). The names, classification, rates of pay and date
of hire of all employees currently engaged in the
performance of electrical work.
'David Black, however, was not a union member, nor was he paid in
accordance with the contract
' In fact, Respondent had three employees on its payroll at that time.
namely, David Black, Jeffery Black, George Black's son, both of whom
were apprentices, and James White, a journeyman electrician None of
the employees were union members As of the date of the hearing. Re-
spondent employed eight employees
(2). A list of all jobs you are presently working on,
or jobs you anticipate performing during the next
six weeks.
Your immediate attention to this matter will be
appreciated.
By letter dated October 31, 1979, Black replied to the
Union as follows:
Please be advised, in reference to your letter
dated October 18, 1979, that as of October 18, 1979.
[sic] I have cancelled the $5,000.00 bond to L.U.
716, due to the fact that I have not worked anyone
through your referral system since December, 1978.
Also you will not receive item's (1) & (2). Re.,
your letter October 18, 1979.
Thank You for all the help I've received from
your organization, [sic] with more assistants [sic] like
some of the choices employeed by L.U. 716 it's a
small worder [sic] to people like myself, that you do
not receive more notices like this one.
In so many words Gentlemen, you may consider
this letter as terminating any and all contracts,
verbal, written or otherwise, that we may have had.
Thank you for the opportunity to submit this
letter after some of dealing [sic] I have had the
pleasure to indure [sic].
C. Analysis and Conclusions
The law is clear that, when a union achieves majority
status among employees in a permanent and stable work
force, a contractual relationship initially entered into
under Section 8(f) of the Act becomes a 9(a) relationship
and the employer is then under a statutory duty to rec-
ognize and bargain with the Union. Further, under such
circumstances, the Union enjoys an irrebuttable presump-
tion of majority status for the duration of the contract.
Precision Striping, Inc., 245 NLRB 169 (1979); Land
Equipment Incorporated, and Equipment Service Rentals. a
Single Employer, 248 NLRB 685 (1980); Hageman Under-
ground Construction, et al., 253 NLRB 60 (1980).
The record amply supports the complaint allegation,
and I find, that all journeyman and apprentice electri-
cians employed by Respondent, excluding all other em-
ployees, guards, watchmen and supervisors as defined in
the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act. Such a unit is commensurate with the work
covered by the collective-bargaining agreement herein,
and although Respondent's answer denies the appropri-
ateness of such a unit, Respondent has not proffered evi-
dence in support of its position which would tend to
show that the described unit is inappropriate.
It is clear that the Union attained majority status
among Respondent's complement of unit employees upon
the hire of Al Hass on February 17, 1978, as the comple-
ment of unit employees was then comprised, assuming
arguendo that David Black worked as an apprentice elec-
trician, of two union members and one nonunion
member. The three employees worked steadily for nearly
a year and, along with Gordon Matheson, another union
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member referred through the contractual hiring hall on
June 25, 1978, were the only unit employees in Respond-
ent's employ until September 19, 1978. 4 Thereafter, on
various dates in 1978, Respondent hired some six addi-
tional employees, but the record clearly shows that these
six employees were hired on a short-term basis to com-
plete certain work, and there is no indication that Re-
spondent considered that these individuals would remain
indefinitely or become part of Respondent's regular work
force.5 Additionally, article II, "Referral Procedure," of
the contract to which Respondent became a party, pro-
vides that employees not obtained through the hiring hall
shall be considered "temporary employees" who shall be
replaced as soon as registered hiring hall applicants are
available.
On the basis of the foregoing, I find that the Union
achieved majority status on February 17 or on June 25,
1978, at the latest, in a permanent and stable work force.
I further find that on that date Respondent thereby
became obligated to recognize and bargain with the
Union for the duration of the contract. Precision Striping,
Inc., 245 NLRB 169 (1979).
The aforementioned contract, which expired on May
30, 1979, was succeeded by the current contract between
the Union and NECA which extends from May 30, 1979,
to September 1, 1981. Respondent did not provide either
NECA or the Union with timely notice that it no longer
authorized NECA to act as its collective-bargaining rep-
resentative. Moreover, Respondent at least implicitly in-
dicated an intention to be bound by the current collec-
tive-bargaining agreement as a result of Black's repeated
representation to Assistant Business Representative Fox,
from December 1978 and continuing until October 1979,
that Black intended to obtain electricians through the
Union's hiring hall. I thus find that the irrebuttable pre-
sumption of union majority status evidenced by the
1977-79 contract has continued and is now demonstrated
by the current contract to which Respondent is bound
because of its failure to timely rescind its letter of assent-
A. See Nelson Electric, Gary C. Nelson, Inc., 241 NLRB
545 (1979), enfd. 106 LRRM 2393 (6th Cir. 1981), where-
in the language of the letter of assent-A was found to
bind the employer indefinitely, and was not deemed to
be limited to the contract in existence at the time of the
I Respondent's records also show that Harrison Deckard was hired on
December 14, 1977, and worked until February 8, 1978, and that two
sons of Al Hass, namely, Ray and Roy Hass, worked from June 16 to
September 9, 1978, apparently during their school vacation. However,
Respondent agreed that the three aforementioned individuals would not
be appropriately included in the unit because they were regarded as, in
effect, independent contractors and were not carried on Respondent's
records as employees, and because their employment was of a temporary
nature.
I Respondent contends that Dan Sneed is a supervisor and is not ap-
propriately a part of the unit. In support of this contention, Respondent
presented evidence showing that Sneed was instrumental in hiring and
thereafter supervising the work of Walter Haynes, a journeyman electri-
cian hired on September 19, 1978, and James Pruitt, hired on October 23,
1978. The General Counsel presented contrary testimony, primarily
through Sneed, who denied that he had hired these individuals or had
been granted or exercised any supervisory authority over them or other
employees. I deem it unnecessary to resolve this issue, as it is clear that at
least from the date of his hire until September 19, 1978, Sneed was not a
supervisor within the meaning of the Act.
execution, as Respondent maintains herein. See also Pa-
cific Intercom Co., 255 NLRB 184 (1981).
Moreover, as the record clearly shows that Respond-
ent was entirely satisfied with the services of Sneed,
Hass, and Matheson, it may be fairly presumed that Re-
spondent would have reemployed these individuals be-
ginning in April 1979, when Respondent's business oper-
ations apparently necessitated the hiring of electricians.
Thus, I find that absent Respondent's considered intent
to violate the terms of its contractual commitment, Re-
spondent would have rehired these three union members
commencing in April 1979, during the term of the initial
contract, and that in this manner the Union's majority
status would have been reestablished. See Haberman
Construction Company, 236 NLRB 79 (1978). Further, I
find that Respondent is estopped on equitable principles
from now asserting that the Union has not continued to
remain the majority representative of the unit employees
herein. Pacific Intercom Co., supra.
By letter dated October 18, 1979, the union requested
certain information regarding Respondent's current em-
ployee complement. Black's reply unequivocally advised
that he was refusing to furnish the requested information,
and further stated that he was terminating any and all
contracts with the Union. Under the circumstances set
forth above, I find that Respondent was then bound to a
collective-bargaining relationship with the Union by the
current collective-bargaining agreement, and was under
an obligation to furnish the Union with the requested in-
formation. By failing and refusing to do so, I find that
Respondent has violated and is violating Section 8(a)(5)
and (1) of the Act. See Custom Wood Specialties, Inc., 243
NLRB 920 (1979); Associated General Contractors of Cali-
fornia, 242 NLRB 891, 893 (1979); Ellis Tacke, d/b/a
Ellis Tacke Company, 229 NLRB 1296 (1977).
Respondent contends that the charge herein is time-
barred by Section 10(c) of the Act. The General Coun-
sel, citing Don Burgess Construction Corporation,6 con-
tends to the contrary that the period of limitation does
not begin to run until the Union became aware of the ex-
istence of a potential violation of the Act. Fox's testimo-
ny that he was unaware until October 1979 that Re-
spondent had, from on or prior to April 1979, violated
the terms of the then-current collective-bargaining agree-
ment, stands unrebutted in the record. Moreover, Fox's
testimony that Black misrepresented his intentions re-
garding future use of the hiring hall is also unrebutted.
Under these circumstances, and in agreement with the
General Counsel, I find that the 10(b) period was tolled
until October 1979, and that the charge herein, filed on
January 23, 1980, was timely. VM Construction Co., Inc.,
241 NLRB 584, 587 (1979); Pacific Intercom Co., supra.
CONCL USIONS OF LAW
1. Respondent, Rayel Electric Company, is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
6 Don Burgess Construction Corporatnon d/b/a Burgess Construction and
Donald Burgess and Verlon Hendrix d/b/ua V d B Builders, 227 NLRB 765
(1977).
1330
RAYEL ELECTRIC COMPANY
2. The Union, Local Union 716, International Brother-
hood of Electrical Workers, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All journeyman and apprentice electricians em-
ployed by Respondent, excluding all other employ-
ees, guards, watchmen and supervisors as defined in
the Act.
4. At all relevant times since February 17, 1978, the
Union has been, and is now, the exclusive representative
for the purposes of collective bargaining of all employees
in the above-described appropriate unit.
5. By repudiating its bargaining relationship and col-
lective-bargaining agreement with the Union, and by fail-
ing and refusing to furnish the Union with certain re-
quested information as found herein, Respondent has en-
gaged in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
6. The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated and is vio-
lating Section 8(a)(5) and (1) of the Act, I recommend
that it be required to cease and desist therefrom and
from in any like or related manner interfering with, re-
straining or coercing its employees in the exercise of
their rights under Section 7 of the Act. Moreover, Re-
spondent shall be required to post an appropriate notice,
attached hereto as "Appendix," and abide by the terms
of the Order herein.
Based on the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 7
The Respondent, Rayel Electric Company, Houston,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to abide by the collective-bargaining con-
tract entered into on January 13, 1978, and by the suc-
cessor contract currently in effect between Local Union
716, International Brotherhood of Electrical Workers,
AFL-CIO-CLC, and Southeast Texas Chapter, National
Electrical Contractors, Inc.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Refusing to recognize and bargain collectively con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with the Union, as the exclu-
sive representative of the employees in the following ap-
propriate unit:
All journeyman and apprentice electricians em-
ployed by Respondent, excluding all other employ-
ees, guards, watchmen and supervisors as defined in
the Act.
(c) Refusing to furnish the Union with information
necessary to fulfill its duties as the collective-bargaining
representative of Respondent's employees.
(d) Withholding contributions to the various trusts as
prescribed by the above contracts, or otherwise depart-
ing from the terms of such contracts.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the
Union concerning the employees in the aforementioned
unit, as required by the contract entered into on January
13, 1979, and by the current successor contract.
(b) Upon request, honor and give full retroactive effect
to the aforementioned contracts, including contributions
to the various trusts as prescribed therein. 8
(c) Furnish the Union with the information requested
in its letter of October 18, 1979.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts owing under
the terms of this Order.
(e) Post at its office in Houston, Texas, copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and shall be main-
tained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' See Hageman Underground Construction, supra: Merryweather Optical
Company, 240 NLRB 1213 (1979).
9 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1331