Infiniti Electric

National Labor Relations Board - Board Decisions

May 11, 2001

333 N.L.R.B. 167 (N.L.R.B. 2001)

333 NLRB No. 167
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Infiniti Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union No. 611,
AFL–CIO. Case 28–CA–16678
May 11, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
HURTGEN
Upon a charge filed by the Union on August 14, 2000,
the Acting General Counsel of the National Labor Rela-
tions Board issued a complaint on October 31, 2000,
against Infiniti Electric, Inc., the Respondent, alleging
that it has violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Although properly served copies of
the charge and complaint, the Respondent failed to file
an answer.
On April 9, 2001, the Acting General Counsel filed a
Motion for Summary Judgment with the Board. On
April 11, 2001, the Board issued an order transferring the
proceeding 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
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide 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 notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated February 28, 2001, notified the Respondent
that unless an answer were received by March 7, 2001, a
Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has maintained an office and principal place of business
in Carlsbad, New Mexico, where it is engaged in busi-
ness as a contractor performing electrical, heating, cool-
ing, and plumb ing services for commercial and residen-
tial customers. During the 12-month period ending Au-
gust 14, 2000, the Respondent, in the course and conduct
of its business operations, purchased and received at the
Respondent’s facility goods, supplies, and materials val-
ued in excess of $50,000 directly from points outside the
State of New Mexico. 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. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the persons named below have
occupied the positions set forth opposite their respective
names and are supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent, acting on its behalf, within the meaning of
Section 2(13) of the Act:

Melissa R. Methola Owner and President
Eugene F. Methola General Manager

The following employees of the Respondent constitute
an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All journeymen and apprentice wiremen and techni-
cians, general foremen, employed by the Respondent
but excluding all other employees, guards, and supervi-
sors as defined in the Act.

Since on or about November 1, 1999, the Union has
been the designated collective-bargaining representative
of the unit and since that time has been recognized as
such by the Respondent. Such recognition has been em-
bodied in a collective-bargaining agreement by and be-
tween the Respondent and the Union, which is effective
by its terms from the period from June 1 to May 31, 2001
(the Agreement).1
At all times since on or about November 1, 1999, the
Union, by virtue of Section 9(a) of the Act, has been and
is now, the exclusive representative of the unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment.
Since on or about March 20, 2000, the Respondent en-
gaged in the following acts and conduct:
1. Hired employees without seeking to utilize the refer-
ral procedure provided for in the Agreement;
2. Paid employees different rates of pay than those
provided for in the Agreement; and
3. Failed to make contributions to the health and wel-
fare, pension, and joint apprentice training committee,
and NEBF trust funds as provided for in the Agreement.
The Respondent engaged in the acts and conduct de-
scribed above unilaterally and without prior notice to the
Union and without having afforded the Union an oppor-

1 The complaint does not indicate the year in which the collective-
bargaining agreement took effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
tunity to negotiate and bargain with the Respondent with
respect to such acts and conduct and the effects of such
acts and conduct.
The subjects set forth above relate to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of the unit and are mandatory sub-
jects for the purposes of collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
with the Union as the exclusive collective-bargaining
representative of the unit and has thereby 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.
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. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing to utilize the referral procedure pro-
vided for in the Agreement, we shall order the Respon-
dent, pursuant to J. E. Brown Electric, 315 NLRB 620
(1994), to offer immediate and full employment to those
applicants who would have been referred to the Respon-
dent for employment by the Union were it not for the
Respondent’s unlawful conduct, and to make them whole
for any losses suffered by reason of the Respondent’s
failure to hire them. Backpay is to be computed in ac-
cordance 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 proceedings. J. E. Brown, supra.
Further, having found that the Respondent violated
Section 8(a)(5) and (1) paying employees different pay
rates than those provided for in the Agreement and fail-
ing to make contributions to the health and welfare, pen-
sion, joint apprenticeship training, and NEBF trust funds
as provided for the Agreement, we shall order the Re-
spondent to make whole its unit employees for loss of
earnings suffered by them as a result of the Respondent’s
unlawful conduct. Backpay is to be computed in accor-
dance with Ogle Protection Services, 183 NLRB 682
(1970), with interest as prescribed in New Horizons for
the Retarded, 293 NLRB 1173 (1987).
In addition, we shall order the Respondent to make
whole its unit employees by making all such delinquent
contributions, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213 fn. 7 (1979). In addition, the Respondent
shall reimburse its unit employees for any expenses ensu-
ing from its failure to make the required contributions, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth in
Ogle Protection Services, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.2
ORDER
The National Labor Relations Board orders that the
Respondent, Infiniti Electric, Inc., Carlsbad, New Mex-
ico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Hiring employees without seeking to utilize the re-
ferral procedure provided for in its collective-bargaining
agreement with the International Brotherhood of Electri-
cal Workers, Local Union No. 611, AFL–CIO.
(b) Paying employees different pay rates than those
provided for in its collective-bargaining agreement with
the Union.
(c) Failing to make contributions to the health and wel-
fare, pension, joint apprenticeship training committee
and NEBF trust funds as provided for in its collective-
bargaining agreement with the Union.
(d) 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) Comply with the terms and conditions of the most
recent collective-bargaining agreement.
(b) Offer full and immediate 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 reason of
the Respondent’s failure to hire them, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(c) Make whole its unit employees for loss of earnings
suffered by them as a result of the Respondent’s unlaw-
ful conduct in paying employees different pay rates than
those provided for in its collective-bargaining agreement
with the Union, as set forth in the remedy section of this
decision.
(d) Make whole its unit employees, with interest, for
any loss of earnings, benefits or expenses ensuing from
its failure to make contributions to the health and welfare
pension, joint apprenticeship training committee and
NEBF trust funds as provided for in its collective-
bargaining agreement with the Union.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and

2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.

INFINITI ELECTRIC, INC. 3
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Carlsbad, New Mexico, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
28, 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 emp loyees
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 March 20,
2000.
(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.
Dated, Washington, D.C. May 11, 2001

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

3 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.”

An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT hire employees without seeking to utilize
the referral procedure provided for in our collective-
bargaining agreement with the International Brotherhood
of Electrical Workers, Local Union No. 611, AFL–CIO.
WE WILL NOT pay our employees different pay rates
than those provided for in our collective bargaining
agreement with the Union.
WE WILL NOT fail to make contributions to the health
and welfare, pension, joint apprenticeship training com-
mittee and NEBF trust funds as provided for in our col-
lective-bargaining agreement with the Union.
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 comply with the terms and conditions of the
most recent collective-bargaining agreement.
WE WILL, within 14 days of the date of this Order, of-
fer full and immediate employment to those applicants
who would have been referred to us for employment by
the Union were it not for our unlawful conduct, and
make them whole for any loss of earnings and other
benefits suffered by reason of our failure to hire them,
with interest.
WE WILL make whole our unit employees for loss of
earnings suffered by them as a result of our unlawful
conduct in paying employees different pay rates than
those provided for in its collective-bargaining agreement
with the Union.
WE WILL make whole our unit employees with interest,
for any loss of earnings, benefits or expenses ensuing
from our failure to make contributions to the health and
welfare pension, joint apprenticeship training committee
and NEBF trust funds as provided for in our collective-
bargaining agreement with the Union.
INFINITI ELECTRIC, INC.