DFV Electric Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1992

306 N.L.R.B. 24 (N.L.R.B. 1992)

24
306 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under certain limited circumstances, Member Oviatt would not
find that an employer’s failure to make contractually required pay-
ments violates Sec. 8(a)(5) and (1) of the Act. See his dissent in
Zimmerman Painting & Decorating, 302 NLRB 856 (1991). He
finds, however, that the Respondent in this case has not fulfilled
those requirements as there is no indication that the Respondent
sought to negotiate with the Union over its claimed temporary in-
ability to pay.
DFV Electric Corp. and International Brotherhood
of Electrical Workers, Local 166. Case 3–CA–
16393
January 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 30, 1991, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. The Re-
spondent filed an answer admitting in part and denying
in part the allegations of the complaint and submitting
an affirmative defense.
The complaint alleges that the Respondent has
failed, since about December 17, 1990, to abide by the
provisions of its collective-bargaining agreement with
the Union regarding deduction of union dues, appren-
ticeship and training, and fringe benefits. In its answer,
the Respondent admits the above allegations, but sub-
mits the affirmative defense that it has ceased oper-
ations and that it has been unable to meet its contrac-
tual contribution obligations because of cash flow
problems. The Respondent avers that it intends to meet
its obligations when outstanding receivables are col-
lected.
On October 7, 1991, the General Counsel filed a
motion to strike Respondent’s affirmative defense and
for Summary Judgment, with exhibits attached. On Oc-
tober 10, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On November
13, the Board issued a Supplemental Notice to Show
Cause. The Respondent filed no response. The allega-
tions in the motion therefore are undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its failure to
abide by the provisions of articles III, section 3-22
(union dues deduction), V (apprenticeship and train-
ing), and VI (fringe benefits). It is well established that
Section 8(a)(5) and (1) and Section 8(d) of the Act
prohibit an employer that is a party to an existing col-
lective-bargaining agreement from modifying the terms
and conditions of employment established by that
agreement without obtaining the consent of the union.
Nick Robilotto, Inc., 292 NLRB 1279 (1989). The Re-
spondent has admitted that it failed to abide by the
terms of the agreement as alleged, and thus has admit-
ted all the facts material to a resolution of the unfair
labor practice issues raised by the complaint. The Re-
spondent’s claim that it is financially unable to make
the required payments does not constitute an adequate
defense to an allegation that an employer has violated
Section 8(a)(5) and (1) of the Act by failing to abide
by a provision of a collective-bargaining agreement.
Ibid.
Nor does the Respondent’s intention to meet its ob-
ligations on receipt of amounts owed it constitute an
adequate defense to the complaint allegations here. The
Board need not determine at the adjudicatory stage of
a proceeding how much a respondent owes. We leave
this matter to the compliance stage. Ibid.
Because we find the affirmative defenses submitted
by the Respondent to be inadequate,1 we grant the
General Counsel’s motion to strike. Because there are
no material facts in dispute, we grant the Motion for
Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, whose principal office and place of
business is in Cohoes, New York, is engaged in the
business of electrical contracting. During the past 12
months, the Respondent, in the course and conduct of
its business operations as an electrical contractor, de-
rived gross revenues in excess of $50,000, of which an
amount in excess of $50,000 was derived from pro-
viding services to other enterprises that are directly en-
gaged in interstate commerce.
Albany Electrical Contractors Assn., NECA Chapter,
Schenectady Division (the Association), comprises var-
ious employers in the electrical contracting industry,
including the Respondent, which have delegated to the
Association the authority to represent them for the pur-
poses of collective bargaining. During the past 12
months, the employer-members of the Association, in
the course and conduct of their business operations lo-
cated in New York State, collectively purchased and
received goods and materials valued in excess of
$50,000 that were transported to the businesses directly
from points located outside the State of New York.
Since about March 23, 1989, and continuing to date,
the Respondent has delegated authority to the Associa-
tion to represent it for the purpose of collective bar-
gaining with the Union.
We find that the Respondent and the Association are
employers engaged in commerce within the meaning
25DFV ELECTRIC CORP.
2 The complaint does not specify the manner in which the Re-
spondent failed to abide by its contractual obligations. (However, the
Respondent in its answer clearly states that it has failed to make at
least some contractually mandated contributions.) We shall leave to
compliance the precise identification of the Respondent’s failure to
abide by the contract that must be remedied, and the individual enti-
ties to which the Respondent owes contributions.
3 See Timber Products Co., 277 NLRB 769, 771 (1985).
of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization with the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All journeymen, foremen, and apprentices.
About March 23, 1989, the Respondent and the
Union entered into an initial prehire collective-bar-
gaining agreement within the meaning of Section 8(f)
of the Act, the term of which was May 1, 1988, until
April 30, 1991, and have since entered into a successor
agreement covering the employees in the unit, the term
of which is from May 1, 1991, until April 30, 1993.
Under the principles established in John Deklewa &
Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d
Cir. 1988), cert. denied 488 U.S. 889 (1988), the
Union has been, and is, the limited exclusive represent-
ative for the employees in the unit for purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment.
Since about December 17, 1990, and continuing
thereafter, the Respondent has failed to continue in full
force and effect all the terms and conditions of the
agreements referred to above by failing to abide by the
following provisions:
Article III, Section 3-22 (Union Dues Deduction)
Article V (Apprenticeship and Training)
Article VI (Fringe Benefits)
Those terms and conditions of employment are manda-
tory subjects of collective bargaining.
By failing to observe the contractual terms and con-
ditions of employment set forth above, the Respondent
has unlawfully failed and refused, and is failing and
refusing, to bargain in good faith with the Union as the
representative of its employees, in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to bargain with the Union in
the manner set forth above, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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.2 Specifi-
cally, with regard to apprenticeship and training and
fringe benefits, we shall order the Respondent to make
the contractually mandated contributions, to remit any
payments it may owe to the relevant funds, and to re-
imburse employees for any expenses they may have in-
curred because of any failure of the Respondent to
make those payments, in the manner prescribed in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with
interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987). Amounts to be paid into the
fringe benefit funds, if any, shall be determined in the
manner set forth in Merryweather Optical Co., 240
NLRB 1213 (1979). Concerning the authorization de-
duction of union dues, we shall order the Respondent
to withhold moneys as provided in article III, section
3-22, of the collective-bargaining agreement, and to
remit to the Union any authorized dues that it may
have failed to remit since December 17, 1990, with in-
terest as provided in New Horizons, supra.3 As the Re-
spondent asserts that it has ceased operations, we shall
also order it to mail copies of the notice to unit em-
ployees.
ORDER
The National Labor Relations Board orders that the
Respondent, DFV Electric Corp., Cohoes, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to continue in full force and
effect all the terms and conditions of its collective-bar-
gaining agreements with the Union as the exclusive
representative of its employees in the following appro-
priate unit:
All journeymen, foremen, and apprentices.
(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) Continue in full force and effect all the terms
and conditions of employment contained in the provi-
sions of its collective-bargaining agreement with the
Union concerning deduction of union dues (art. III,
sec. 3-22), apprenticeship and training (art. V), and
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See fn. 2, supra.
5 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.’’
fringe benefits (art. VI). Specifically, but without limi-
tation,4 the Respondent shall:
(1) Make all fringe benefit payments mandated by
article VI on behalf of unit employees.
(2) Deduct authorized union dues from the pay-
checks of unit employees and remit all such dues to
the Union, as provided in article III, section 3-22.
(b) Remit any payments it may owe to the appren-
ticeship and training and fringe benefits funds, and all
dues it may owe to the Union, in the manner set forth
in the remedy section of this decision.
(c) Make whole all present and former unit employ-
ees for any losses they may have suffered as a result
of any failure by the Respondent to make the contrac-
tually mandated fringe benefit payments, in the manner
set forth in the remedy section of this decision.
(d) 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, trust fund state-
ments, and all other documents or records necessary to
analyze the amount of apprenticeship and training and
fringe benefit payments or union dues due under the
terms of this Order.
(e) Post at its facility in Cohoes, New York, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Mail copies of the notice to present and past unit
employees at their last known addresses.
(g) 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.
WE WILL NOT fail and refuse to continue in full
force and effect all the terms and conditions of our
collective-bargaining agreement with the Union as the
exclusive representative of our employees in the fol-
lowing appropriate unit:
All journeymen, foremen, and apprentices.
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 continue in full force and effect all the
terms and conditions of employment contained in the
provisions of our collective-bargaining agreement with
the Union concerning deduction of union dues, appren-
ticeship and training, and fringe benefits. Specifically,
WE WILL make all payments to the apprenticeship
and training and fringe benefit funds on behalf of unit
employees, as required by the contract.
WE WILL deduct authorized union dues from the
paychecks of unit employees and remit the dues to the
Union, as provided in the contract.
WE WILL remit all payments we owe to the appren-
ticeship and training fund and the fringe benefit funds;
and reimburse our unit employees for any expenses
they may have incurred because of any failure on our
part to make the required payments, with interest.
WE WILL remit to the Union any authorized union
dues that should have been remitted pursuant to the
checkoff provision of the contract since December 17,
1990, with interest.
DFV ELECTRIC CORP.