Energy Services International

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 6 (N.L.R.B. 2004)

343 NLRB No. 6
Energy Services International, Inc. and Arkansas
Wiring Systems Inc., alter egos and Interna-
tional Brotherhood of Electrical Workers, Local
700. Case 26–CA–21570
September 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the complaint. Upon a charge and first
amended charge filed by the Union on February 17 and
May 27, 2004, respectively, the General Counsel issued
the complaint on May 28, 2004, against Energy Services
International, Inc. (ESI) and its alter ego Arkansas Wir-
ing Systems, Inc. (AWS), collectively referred to as the
Respondent, alleging that it has violated Section 8(a)(5)
and (1) of the Act. The Respondent filed an answer to the
complaint. On July 16, 2004, however, the Respondent
withdrew its answer.
On August 2, 2004, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On August 3,
2004, the Board issued an order transferring the proceed-
ing 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 Default 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. In addition, the complaint affirmatively stated
that unless an answer was filed by June 11, 2004, all the
allegations in the complaint would be considered admit-
ted. On June 8, 2004, the Respondent filed an answer to
the complaint. Thereafter, on July 16, 2004, the Respon-
dent filed a motion to withdraw its answer pursuant to a
conversation and agreement with the General Counsel.
On the same date, the Regional Director issued an Order
approving the withdrawal of the Respondent’s answer.
The withdrawal of an answer has the same effect as a
failure to file an answer, i.e., the allegations in the com-
plaint must be considered to be true.11
Accordingly, we grant the General Counsel’s Motion
for Default Judgment.
On the entire record, the Board makes the following

1 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times until about September 2003, Re-
spondent ESI, a Missouri corporation with an office and
place of business located in Fayetteville, Arkansas, was
an electrical contractor in the building and construction
industry performing commercial and industrial work.
At all material times since about October 3, 2003, Re-
spondent AWS, an Arkansas corporation with an office
and place of business in Fayetteville, Arkansas, has been
an electrical contractor in the building and construction
industry performing commercial and industrial work.
About September or October 2003, Respondent AWS
was established by Respondent ESI as a subordinate in-
strument to and a disguised continuation of Respondent
ESI.
At all material times Respondent ESI and Respondent
AWS have been affiliated business enterprises with
common officers, ownership, directors, management, and
supervision; have had identical business purposes; have
formulated and administered a common labor policy;
have shared common premises and facilities; have pro-
vided services for and made sales to each other; have
interchanged personnel with each other; and have held
themselves out to the public as single-integrated business
enterprises.
Based on the conduct described above, Respondent
ESI and Respondent AWS, are, and have been at all ma-
terial times, alter egos and a single employer within the
meaning of the Act.
During the 12-month period ending February 29, 2004,
the Respondent, in conducting its business operations,
performed services valued in excess of $50,000 in states
other than the State of Arkansas and purchased and re-
ceived at the Respondent’s Arkansas facilities and job-
sites goods valued in excess of $50,000 directly from
points located outside the State of Arkansas. 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 International Brotherhood of Electrical
Workers, Local 700, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Glenn Evans - Current President and Secretary-
Treasurer, Respondent AWS; President and Secretary-
Treasurer, Respondent ESI
Brian Geels - Former President and General Man-
ager, Respondent AWS; Vice-President and General
Manager, Respondent ESI
Lydia Crouch - Until about 2003, President, Respon-
dent ESI
At all material times, the Fort Smith Division, Arkan-
sas Chapter of the National Electrical Contractors Asso-
ciation (NECA), has been an organization composed of
employers engaged in the electrical contracting business
and exists for the purpose, inter alia, of representing its
employer members in negotiating and administering col-
lective-bargaining agreements.
At all material times until about May 2003, Respon-
dent ESI was a member of NECA, and NECA was au-
thorized by Respondent ESI to bargain collectively on its
behalf with the Union concerning wages, hours, and
other terms and conditions of employment of the unit.
About September 1, 2002, the Union entered into a
collective-bargaining agreement with NECA. That agree-
ment (the Inside Agreement), is effective for the period
September 1, 2002 through August 31, 2004.
About March 21, 2001, Respondent ESI, an employer
engaged in the building and construction industry,
granted recognition to the Union as the exclusive collec-
tive-bargaining representative of the unit covered by the
Inside Agreement and since that date the Union has been
recognized as such representative by Respondent ESI
without regard to whether the majority status of the Un-
ion has ever been established under the provisions of
Section 9(a) of the Act.
The following employees (the unit), constitutes a unit
appropriate for the purposes of collective-bargaining
within the meaning of Section 9(b) of the Act:
All employees employed by Respondent performing
electrical work, excluding office clerical and profes-
sional employees, guards and supervisors as defined in
the Act.
For the period from September 1, 2002 through August
31, 2004, based on Section 9(a) of the Act, the Union has
been the limited exclusive collective-bargaining repre-
sentative of the unit.22

2 The complaint alleges that the Respondent is a construction industry
employer and that it granted recognition to the Union without regard to
whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) and that
the Union is therefore the limited 9(a) representative of the unit em-
By letter dated August 15, 2003, received by the Union
on August 18, 2003, the Respondent withdrew its recog-
nition of the Union as the limited exclusive collective-
bargaining representative of the unit.
Since on or about August 18, 2003, the Respondent
has refused to recognize or bargain with the Union.
Since on or about August 18, 2003, the Respondent
has failed to continue in effect all terms and conditions of
the Inside Agreement, including but not limited to provi-
sions requiring the Respondent to:
(a) deduct and forward to the Union, upon receipt
of a voluntary written authorization, working union
dues from the pay of each member of the Union;
(b) use the Union hiring hall as its sole and ex-
clusive source of referral of applicants for employ-
ment;
(c) provide names and social security numbers of
all temporary employees;
(d) comply with a ratio of two apprentices for
every three journeyman wiremen or fraction thereof;
(e) provide appropriate supervision for appren-
tices;
(f) make contributions to the apprenticeship and
training trust fund;
(g) make contributions to the National Electric
Benefit Fund;
(h) make contributions to the Annuity Trust
Fund; and
(i) make other health and welfare contributions.
The Respondent engaged in the conduct described
above without the Union’s consent. The terms and condi-
tions of employment described above are mandatory sub-
jects for the purpose of collective bargaining.
The Union, by letter dated September 8, 2003, re-
quested that the Respondent furnish it with the following
information for all employees hired after July 15, 2002:
name, address, phone number, hours worked daily, and
date of termination.
This information is necessary for and relevant to the
Union’s performance of its duties as the limited exclu-
sive collective-bargaining representative of the unit.
From September 8, 2003, to March 2004, the Respon-
dent unreasonably delayed in providing the Union with
the information it requested on September 8, 2003.

ployees for the period covered by the contract. See, e.g., A.S.B. Cloture,
Ltd., 313 NLRB 1012 (1994).
ENERGY SERVICES INTERNATIONAL
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act, and has thereby 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.3
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found the Respondent violated Section 8(a)(5)
and (1) since about August 18, 2003, by failing and re-
fusing to continue in effect all terms and conditions of its
collective-bargaining agreement, including by failing to:
deduct and forward union dues to the Union, use the un-
ion hiring hall as its exclusive source of referrals for em-
ployment, provide names and social security numbers of
temporary employees, comply with a ratio of two ap-
prentices for every three journeymen, provide appropri-
ate supervision for apprentices, and make contributions
to the apprenticeship and training trust funds, the Na-
tional Electric Benefit Fund, the Annuity Trust Fund, and
other health and welfare contributions, we shall order the
Respondent to honor the terms and conditions of the In-
side Agreement, and any automatic renewal or extension
of it.
In order to remedy the Respondent’s failure to make
contractually-required fringe benefit payments, the Re-
spondent shall be required to make all contractually re-
quired benefit payments or contributions that have not
been made since August 18, 2003, including any addi-
tional amounts applicable to such delinquent payments in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 (1979). In addition, the Respondent shall
reimburse unit employees for any expenses ensuing from
its failure to make such required payments or contribu-
tions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th

3 In finding that the Respondent violated Sec. 8(a)(5) by refusing to
provide the Union with the names and social security numbers of all
temporary employees, we note that the Board has held that social secu-
rity numbers are not presumptively relevant to a union’s duties as an
exclusive collective-bargaining representative. RFS Escusta, Inc., 342
NLRB No. 91, slip op. at 3 fn. 4 (2004). Where, as here, however, the
Respondent is required to furnish social security numbers under the
parties’ collective-bargaining agreement, the Board has held that the
necessary showing of relevance has been made. MBC Headwear, 315
NLRB 424 fn. 2 (1994).
Cir. 1981). All payments to unit employees shall be
computed in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).4
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to deduct and remit
working union dues as required by the Inside Agreement,
we shall order the Respondent to deduct working union
dues pursuant to valid checkoff authorizations, for the
period from August 18, 2003 through the expiration of
the Inside Agreement or any automatic renewal or exten-
sion of it, and remit them to the Union, with interest as
prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Energy Services International, Inc. (ESI),
and Arkansas Wiring Systems, Inc., (AWS), alter egos,
Fayetteville, Arkansas, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from International Broth-
erhood of Electrical Workers, Local 700, as the limited
exclusive collective-bargaining representative of the em-
ployees in the following unit, during the term of its
2002–2004 collective-bargaining agreement (the Inside
Agreement) with the Union, and any automatic renewal
or extension of it. The unit is:
All employees employed by Respondent performing
electrical work, excluding office clerical and profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Refusing to recognize or bargain with the Union
during the term of the 2002–2004 Inside Agreement, and
any automatic renewal or extension of it.
(c) Failing and refusing to continue in effect all terms
and conditions of the 2002–2004 Inside Agreement, and
any automatic renewal or extension of it, including but
not limited to provisions requiring the Respondent to:
(i) deduct and forward to the Union, upon receipt
of a voluntary written authorization, working union
dues from the pay of each member of the Union;

4 To the extent that an employee has made personal contributions to a
fund that are accepted by the fund in lieu of the employer’s delinquent
contributions during the period of the delinquency, the Respondent will
reimburse the employee, but the amount of such reimbursement will
constitute a setoff to the amount that the Respondent other-wise owes
the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(ii) use the Union hiring hall as its sole and ex-
clusive source of referral of applicants for employ-
ment;
(iii) provide names and social security numbers
of all temporary employees;
(iv) comply with a ratio of two apprentices for
every three journeyman wiremen or fraction thereof;
(v) provide appropriate supervision for appren-
tices;
(vi) make contributions to the apprenticeship and
training trust fund;
(vii) make contributions to the National Electric
Benefit Fund;
(viii) make contributions to the Annuity Trust
Fund; and
(ix) make other health and welfare contributions.
(d) Unreasonably delaying in furnishing the Union
with information that is relevant and necessary to the
Union’s performance of its duties as the limited exclu-
sive collective-bargaining representative of the unit em-
ployees.
(e) In any like or related manner interfering with, re-
straining, 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) Honor the terms of the 2002–2004 Inside Agree-
ment and any automatic renewal or extension of it, in-
cluding using the union hiring hall as its sole and exclu-
sive source of referral of applicants for employment;
providing names and social security numbers of all tem-
porary employees; complying with a ratio of two appren-
tices for every three journeymen wiremen or fraction
thereof; and providing appropriate supervision for ap-
prentices.
(b) Deduct working dues for employees who have exe-
cuted valid dues-checkoff authorizations that have not
been deducted and since August 18, 2003, as required by
the 2002–2004 Inside Agreement, and remit them to the
Union, with interest as set forth in the remedy section of
this decision.
(c) Offer immediate and full employment to those ap-
plicants who would have been referred to the Respondent
for employment by the Union were it not for the Respon-
dent’s unlawful conduct, and make them whole for any
loss of earnings and other benefits suffered by the Re-
spondent’s failure to hire them. Backpay is to be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, supra. Reinstatement and
backpay issues will be resolved by a factual inquiry at
the compliance stage of the proceeding. J. E. Brown
Electric, 315 NLRB 620 (1994).
(d) Make all the contractually-required benefit fund
contributions that have not been made on behalf of unit
employees since August 18, 2003, and reimburse unit
employees for any expenses ensuing from its failure to
make the required payments, in the manner set forth in
the remedy section of this decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Fayetteville, Arkansas, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
26, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 18,
2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ENERGY SERVICES INTERNATIONAL
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw recognition from International
Brotherhood of Electrical Workers, Local 700, as the
limited exclusive collective-bargaining representative of
the employees in the following unit, during the term of
our 2002–2004 collective-bargaining agreement (the
Inside Agreement) with the Union, and any automatic
renewal or extension of it. The unit is:
All employees employed by us performing electrical
work, excluding office clerical and professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL NOT refuse to recognize or bargain with the
Union during the term of the 2002–2004 Inside Agree-
ment, and any automatic renewal or extension of it.
WE WILL NOT fail and refuse to continue in effect all
terms and conditions of the 2002–2004 Inside Agree-
ment, and any automatic renewal or extension of it, in-
cluding but not limited to provisions requiring us to:
(i) deduct and forward to the Union, upon receipt
of a voluntary written authorization, working union
dues from the pay of each member of the Union;
(ii) use the Union hiring hall as its sole and ex-
clusive source of referral of applicants for employ-
ment;
(iii) provide names and social security numbers
of all temporary employees;
(iv) comply with a ratio of two apprentices for
every three journeyman wiremen or fraction thereof;
(v) provide appropriate supervision for appren-
tices;
(vi) make contributions to the apprenticeship and
training trust fund;
(vii) make contributions to the National Electric
Benefit Fund;
(viii) make contributions to the Annuity Trust
Fund; and
(ix) make other health and welfare contributions.
WE WILL NOT unreasonably delay in furnishing the Un-
ion with information that is relevant and necessary to the
Union’s performance of its duties as the limited exclu-
sive collective-bargaining representative of the unit em-
ployees.
WE WILL NOT in any like or related manner interfering
with, restraining, or coercing you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL honor the terms of the 2002–2004 Inside
Agreement and any automatic renewal or extension of it,
including using the union hiring hall as its sole and ex-
clusive source of referral of applicants for employment;
providing names and social security numbers of all tem-
porary employees; complying with a ratio of two appren-
tices for every three journeymen wiremen or fraction
thereof; and providing appropriate supervision for ap-
prentices.
WE WILL deduct working dues for employees who
have executed valid dues-checkoff authorizations that
have not been deducted since August 18, 2003, as re-
quired by the 2002–2004 Inside Agreement, and remit to
them the Un-ion, with interest.
WE WILL offer immediate and full employment to
those applicants who would have been referred to the
Respondent for employment by the Union were it not for
the Respondent’s unlawful conduct, and make them
whole for any loss of earnings and other benefits suffered
by the Respondent’s failure to hire them, with interest.
WE WILL make all the contractually-required benefit
fund contributions that have not been made on behalf of
unit employees since August 18, 2003, and reimburse
unit employees for any expenses ensuing from its failure
to make the required payments, with interest.
ENERGY SERVICES INTERNATIONAL, INC. AND
ARKANSAS WIRING SYSTEMS, INC., ALTER
EGOS