Assarian Electric Co.

National Labor Relations Board - Board Decisions

Feb 14, 1992

306 N.L.R.B. 314 (N.L.R.B. 1992)

314
306 NLRB No. 64
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Assarian Electric Company and Local 103, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Case 1–CA–28412
February 14, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge and amended charge filed by Local
103, International Brotherhood of Electrical Workers,
AFL–CIO, the Union, on June 28 and August 8, 1991,
the General Counsel of the National Labor Relations
Board issued a complaint on August 13, 1991, against
Assarian Electric Company, the Respondent, alleging
that it has violated Section 8(a)(5), (3), and (1) of the
National Labor Relations Act. Although properly
served copies of the charge, amended charge, and com-
plaint, the Respondent has failed to file an answer.
On November 18, 1991, the General Counsel filed
a Motion for Summary Judgment. On November 22,
1991, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion For Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14
days from service of the complaint, unless good cause
is shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that the General Counsel noti-
fied the Respondent by certified letter dated October
22, 1991, of its obligation to file an answer to the
complaint and that unless an answer was received by
November 1, 1991, a Motion for Summary Judgment
would be filed.
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
The Respondent, a corporation with an office and
place of business in Springfield, Massachusetts, has
been engaged as an electrical contractor in the con-
struction industry. During the calendar year ending De-
cember 31, 1990, the Respondent, in the course and
conduct of its business operations performed services
valued in excess of $35,000 for various enterprises lo-
cated in States other than the Commonwealth of Mas-
sachusetts; performed services valued in excess of
$20,000 for Fisher Development Company, an enter-
prise performing business within the Commonwealth
of Massachusetts and that is directly engaged in inter-
state commerce; and purchased and received at its
Massachusetts jobsites and facility goods and materials
valued in excess of $5000, which were shipped di-
rectly from sources outside the Commonwealth of
Massachusetts.
The Electrical Contractors Association of Greater
Boston, Inc., Boston Chapter, National Electrical Con-
tractors Association (the Association) has been an or-
ganization composed of employers, including the Re-
spondent, engaged in the construction industry, and
which exists for the purpose, inter alia, of representing
its employer-members in negotiating and administering
collective-bargaining agreements with various labor or-
ganizations, including the Union. During the calendar
year ending December 31, 1990, the employer-mem-
bers of the Association collectively purchased and re-
ceived at their facilities within the Commonwealth of
Massachusetts products, goods, and materials valued in
excess of $50,000 directly from points outside the
Commonwealth of Massachusetts. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, that
the employer-members of the Association are employ-
ers, collectively, engaged in commerce within the
meaning of Section 2(6) and (7), and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union’s
Representative Status
On September 1, 1989, the Association and the
Union entered into a collective-bargaining agreement
which, by its terms, is effective for the period Sep-
tember 1, 1989, through August 31, 1991.
On May 22, 1991, the Respondent, by its president,
Nelson A. Assarian, entered into a ‘‘Letter of Assent-
A’’ which authorized the Association to represent it for
purposes of collective bargaining and bound the Re-
spondent to the terms and conditions of employment of
the 1989–1991 agreement.
All employees of the Respondent in the following
classification constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
315ASSARIAN ELECTRIC CO.
1 The complaint alleges an unlawful failure to make contributions
to the National Electrical Industry Fund. The complaint gives no fur-
ther information concerning this fund. On its face, the National Elec-
tric Industry Fund appears to be an industry advancement fund, and
in the absence of evidence to the contrary, we shall consider it as
one. The Board has held that an industry advancement fund is not
a mandatory subject of bargaining. Scott Lee Guttering Co., 295
NLRB 497 fn. 3 (1989). The Respondent’s failure to make these
contributions, therefore, does not violate Sec. 8(a)(5) of the Act.
Thus, the Respondent is not required by our Order to make contribu-
tions to this fund.
All employees performing electrical installation or
repair work, as set forth in the 1989–1991 Agree-
ment, employed by employer-members of the As-
sociation, and of the employers who have author-
ized said Association to bargain on its behalf, in-
cluding Respondent, but excluding guards and su-
pervisors as defined in the Act.
At all times material, the Union, by virtue of Section
9(a) of the Act, has been, and is now, the exclusive
representative of the Respondent’s employees in the
unit for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
B. The Violations
Since about June 27, 1991, the Respondent has
failed and refused to pay the following fringe benefit
funds amounts that have become due under article IV
of the 1989–1991 collective-bargaining agreement in-
cluding, but not limited to:
National Electrical Benefit Fund—Article 4.1
Health & Welfare Fund—Article 4.2
Local 103 Pension Fund—Article 4.3
Holiday, Vacation and Supplementary
Unemployment Fund—Article 4.4
Deferred Income Fund—Article 4.5
Working Assessment—Article 4.6
National Electrical Industry Fund—
Article 4.71
These subjects relate to the wages, hours, and other
terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining. Accordingly, we find that the Respondent,
by failing to make the payments, has failed and re-
fused, and is failing and refusing, to bargain collec-
tively and in good faith with the representative of its
employees in violation of Section 8(a)(5) and (1) of
the Act.
Since about June 27, 1991, the Respondent has re-
fused to adhere to and has repudiated the entire 1989–
1991 agreement by its refusal to follow the referral
procedure pursuant to article V of the 1989–1991
agreement and its withdrawal of recognition from the
Union.
By the above-described conduct, the Respondent has
failed and refused to bargain collectively and in good
faith with the representative of its employees in viola-
tion of Section 8(a)(5) and (1) of the Act.
About June 27, 1991, the Respondent laid off or dis-
charged the following employees: Paul Chani, Michael
O’Connor, Bruce Singer, and Thomas Bailey. These
employees were discharged or laid off because they
joined, supported, or assisted the Union, and engaged
in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection. These em-
ployees were laid off or discharged in order to discour-
age employees from engaging in such activities or
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
By this conduct, the Respondent has discriminated,
and is discriminating, in regard to the hire and tenure
or terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor orga-
nization in violation of Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OF LAW
1. By failing and refusing to continue in full force
and effect all the terms and conditions of its collective-
bargaining agreement with the Union by failing and re-
fusing to remit contributions due various benefit funds,
and by repudiating the entire 1989–1991 agreement by
refusing to follow the referral procedure pursuant to
the agreement and by withdrawing recognition from
the Union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
2. By laying off or discharging its employees be-
cause they had joined, supported, or assisted the Union
and had engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion, and in order to discourage employees from en-
gaging in those activities, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) 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.
We shall, inter alia, order the Respondent to adhere
to the terms and conditions of employment of the
agreement with the Union and to make whole the ben-
efit funds, in the manner set forth in Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), for
the contractually required payments to the funds that it
has unlawfully failed to make. The Respondent shall
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.’’
also reimburse its unit employees for any expenses en-
suing from the Respondent’s unlawful failure to make
those payments as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
We shall also order the Respondent to offer Paul
Chani, Michael O’Connor, Bruce Singer, and Thomas
Bailey immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and to make each of them whole for any loss of earn-
ings and other benefits suffered because of their lay-
offs or discharges, to be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed in the manner prescribed in
New Horizons for the Retarded, supra.
To remedy the violation that the Respondent has
failed to comply with referral procedures set forth in
the contract, we leave to compliance the determination
of the extent of the relief, if any, that is appropriate
beyond the requirement that the Respondent cease and
desist from failing to comply with these procedures
and its affirmative corollary.
ORDER
The National Labor Relations Board orders that the
Respondent, Assarian Electric Company, Springfield,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Local 103, International
Brotherhood of Electrical Workers, AFL–CIO as the
exclusive bargaining representative of the employees in
the bargaining unit.
(b) Failing and refusing to continue in full force and
effect all the terms and conditions of its collective-bar-
gaining agreement with Local 103, International Broth-
erhood of Electrical Workers, AFL–CIO, effective
September 1, 1989, through August 31, 1991, by fail-
ing to remit contractually required fringe benefit con-
tributions, and by refusing to follow the referral proce-
dure pursuant to article V of the 1989–1991 agreement
and by withdrawing recognition from the Union.
(c) Laying off or discharging or otherwise discrimi-
nating against employees because they join, support, or
assist Local 103, International Brotherhood of Elec-
trical Workers, AFL–CIO or any other labor organiza-
tion, or engage in other activities for the purpose of
collective bargaining or other mutual aid or protection.
(d) 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) Recognize the Union and adhere to the terms and
conditions of its 1989–1991 collective-bargaining
agreement with the Union, including but not limited to,
its provisions governing benefit fund contributions and
referral procedures.
(b) Make whole the benefit funds, in the manner set
forth in the remedy section of this decision, for the
contractually required contributions to the benefit
funds that the Respondent has unlawfully failed to
make.
(c) Make whole the unit employees, in the manner
set forth in the remedy section of this decision, for any
losses suffered, including those occurring as a result of
the Respondent’s failure to make the contractually re-
quired fringe benefit fund contributions.
(d) Offer employees Paul Chani, Michael O’Connor,
Bruce Singer, and Thomas Bailey immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits they may
have suffered by reason of the layoffs or discharges,
in the manner set forth above in the remedy section of
this decision.
(e) Remove from its personnel files any reference to
the layoffs or discharges of Paul Chani, Michael
O’Connor, Bruce Singer, and Thomas Bailey and no-
tify them in writing that this has been done and that
evidence of these unlawful layoffs or discharges will
not be used as a basis for future personnel actions
against them.
(f) Preserve and, on 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 due under
the terms of this Order.
(g) Post at its jobsites and facility in Springfield,
Massachusetts, copies of the attached notice marked
‘‘Appendix.’’2 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
317ASSARIAN ELECTRIC CO.
tices are not altered, defaced, or covered by any other
material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain with Local 103,
International Brotherhood of Electrical Workers, AFL–
CIO as the exclusive bargaining representative of the
employees in the bargaining unit.
WE WILL NOT fail and refuse to continue in full
force and effect all the terms and conditions of our
collective-bargaining agreement with Local 103, Inter-
national Brotherhood of Electrical Workers, AFL–CIO,
effective September 1, 1989, through August 31, 1991,
by failing to remit contributions due various benefit
funds, by refusing to follow the referral procedure pur-
suant to article V of the 1989–1991 agreement, and by
withdrawing recognition from the Union.
WE WILL NOT layoff, discharge, or otherwise dis-
criminate against you because you join, support, or as-
sist Local 103, International Brotherhood of Electrical
Workers, AFL–CIO or engage in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection.
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 recognize Local 103, International Broth-
erhood of Electrical Workers, AFL–CIO as the collec-
tive-bargaining representative for all our employees
performing electrical installation or repair work and
WE WILL adhere to the terms and conditions of our
1989–1991 collective-bargaining agreement with the
Union, including but not limited to, its provisions gov-
erning benefit fund contributions and referral proce-
dures.
WE WILL make the contractually required benefit
fund contributions that we unlawfully failed to make.
WE WILL make whole, with interest, employees in
the appropriate bargaining unit represented by the
Union and covered by the agreement for any losses
suffered as a result of our failure to make the required
benefit fund payments.
WE WILL offer Paul Chani, Michael O’Connor,
Bruce Singer, and Thomas Bailey immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits re-
sulting from their layoffs or discharges, less any net
interim earnings, plus interest.
WE WILL remove from our files any reference to the
unlawful layoffs or discharges of Paul Chani, Michael
O’Connor, Bruce Singer, and Thomas Bailey and no-
tify each of them, in writing, that this has been done,
and that evidence of these unlawful acts will not be
used as a basis for future personnel actions concerning
them.
ASSARIAN ELECTRIC COMPANY