Morton Electric

National Labor Relations Board - Board Decisions

Jul 20, 1994

314 N.L.R.B. 466 (N.L.R.B. 1994)

466
314 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find it unnecessary to rely on the judge’s finding at fn. 9 of
his decision that Bob Morton possessed a degree of legal sophistica-
tion as demonstrated by his actions arising out of the use of his cor-
porate name on an employee’s vehicle.
We also note that it is evident from the judge’s ruling at fn. 4 of
his decision, that he meant to say that parol evidence is ‘‘inadmis-
sible’’ to vary or contradict the terms of a contract which is plain
on its face, rather than, as he inadvertently misstated, that such evi-
dence is ‘‘admissible.’’
2 The modifications are made to reflect the narrower scope of the
Order in situations involving repudiation of an 8(f) contract. There-
fore, the judge’s recommended remedy is also amended consistent
with the action set forth in our modified Order. Accordingly, we will
not order the Respondent to ‘‘recognize and, on request, bargain
with the Union,’’ nor will we order the Respondent to ‘‘restore the
status quo ante’’ or to ‘‘reinstate, honor, and abide by both collec-
tive-bargaining agreements.’’ Rather, we will require that the Re-
spondent continue to honor the terms of the parties’ inside wiring
unit collective-bargaining agreement until its expiration on March
31, 1994, and to make whole the employees in both units for any
losses they may have suffered, in the manner set forth in the judge’s
recommended remedy.
Morton Electric, Inc. and International Brother-
hood of Electrical Workers, Local 16. Cases
25–CA–22389 and 25–CA–22601
July 20, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On December 3, 1993, Administrative Law Judge
Steven M. Charno issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mor-
ton Electric, Inc., Petersburg, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(b), reletter paragraph 1(a) as
1(b), and insert the following as paragraph 1(a).
‘‘(a) Withdrawing recognition during the terms of
the collective-bargaining agreements from the Union,
as the exclusive bargaining representative of the Re-
spondent’s employees covered by the agreements.’’
2. Substitute the following for paragraph 2(a), delete
paragraph 2(b) and reletter the subsequent paragraphs.
‘‘(a) Honor the terms and conditions of the parties’
inside wiring unit collective-bargaining agreement until
its expiration on March 31, 1994, and make whole em-
ployees for any loss of wages and other loss of bene-
fits they may have incurred due to the unlawful con-
duct plus interest, in the manner set forth in the rem-
edy section of the decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 withdraw recognition during the term
of a collective-bargaining agreement from the Inter-
national Brotherhood of Electrical Workers, Local 16
(the Union), as the exclusive bargaining representative
of our employees covered by the agreement.
WE WILL NOT repudiate our collective-bargaining
agreement, effective April 1, 1991, through March 31,
1994, with the Union.
WE WILL NOT refuse, during the term of a collec-
tive-bargaining agreement with the Union, to supply
the Union, on request, relevant information necessary
to the Union’s proper administration of the collective-
bargaining agreement.
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 honor the terms and conditions of our in-
side wiring unit collective-bargaining agreement with
the Union until its expiration on March 31, 1994, and
WE WILL make whole employees for any loss of wages
and other loss of benefits they may have incurred due
to our unlawful conduct, plus interest.
467MORTON ELECTRIC
1 The parties so stipulated.
2 Respondent admitted that the residential wiring unit constitutes a
unit appropriate for the purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act.
3 The revised copy prepared by the Union’s representative was the
same in every material respect, including parties and term, as the
residential contract then in effect. The credited testimony of Scott
and NECA’s executive manager concerning the then-current residen-
tial contract was substantiated by the executed copy of that agree-
ment which was received in evidence. Given the Union’s
uncontested practice of reaching a collective-bargaining agreement
and putting that agreement into effect before the contract was for-
mally executed, I find immaterial the fact that the residential contract
at issue had an effective date of June 1, 1990, but was not signed
until December 12 of that year.
4 Because it is well settled that parole evidence is admissible to
vary or contradict the terms of a contract which is plain on its face,
I reject the alleged oral agreements between Respondent and the
Union as immaterial to the issues before me. See, e.g., Electro Met-
allurgical Co., 72 NLRB 1396 (1947); Peterson & Lythe, 60 NLRB
1070 (1945).
5 The parties so stipulated.
6 Respondent admitted that the inside wiring unit constitutes a unit
appropriate for the purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act.
7 Given the finding in text, I reject Respondent’s argument that its
December 21, 1992 notice terminated its obligations under the inside
contract as of May 5, 1993.
8 Morton’s testimony concerning other aspects of the August 15
meeting was shown to be freighted with self-serving mendacity,
while the mutually corroborative testimony of Scott and Henning on
these matters was generally supported by circumstantial evidence. I
therefore credit Scott and Henning’s account that Morton was given
a copy of the inside contract over Morton’s denial.
WE WILL, on request, furnish the Union with the in-
formation sought by it in its March 11 and April 7,
1993 letters to us.
MORTON ELECTRIC, INC.
Walter Steele, Esq., for the General Counsel.
Brent Stuckey, Esq. (Hart, Bell, Deem, Ewing & Stuckey), of
Vincennes, Indiana, for the Respondent.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In re-
sponse to charges timely filed, a consolidated complaint was
issued on August 31, 1993, which alleged that Morton Elec-
tric, Inc. (Respondent) had violated the National Labor Rela-
tions Act (Act), by failing to adhere to a collective-bar-
gaining agreement with Local 16 of the International Broth-
erhood of Electrical Workers (Union) and by refusing to fur-
nish information necessary for the Union’s performance of
its function as the exclusive bargaining representative of a
unit of Respondent’s employees. Respondent’s answer denied
the commission of any unfair labor practice.
A hearing was held before me in Petersburg, Indiana, on
September 28 and 29, 1993. Briefs were thereafter filed by
General Counsel and Respondent under extended due date of
November 23, 1993.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged as an electrical con-
tractor with a place of business in Petersburg, Indiana. It was
stipulated that Respondent, in the course of its operations
during the 12-month period ending March 1, 1993, provided
services valued in excess of $50,000 for Indiana enterprises
directly engaged in interstate commerce. Accordingly, I find
that Respondent is an employer engaged in commerce within
the meaning of the Act.
The Union is admitted to be, and I find is, a labor organi-
zation within the meaning of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On August 15, 1990, Bobby J. Morton, Respondent’s ad-
mitted president and sole shareholder, visited the Union’s of-
fices in Evansville, Indiana. After a brief conversation with
union officials Larry Scott, Steven Henning, and Don Wilkie,
Morton signed two separate letters of assent.1 The first letter
bound Respondent to recognize the Union as the exclusive
bargaining representative of a specified group of employees
(residential wiring unit)2 and to comply with the terms of the
then-current and any subsequent residential collective-bar-
gaining agreement (residential contract) between the Union
and the Evansville Division, Southern Indiana Chapter, Na-
tional Electrical Contractors Association, Inc. (NECA). The
letter provided that Respondent’s obligations thereunder
might be terminated by written notice to the Union and
NECA at least 150 days prior to the anniversary date of the
residential contract. In order to create a copy of the residen-
tial contract then in effect between the Union and NECA, the
union representatives revised an out-of-date contract to indi-
cate a term of June 1, 1990, through May 31, 1991, and to
reflect current wage and benefit rates.3 The residential con-
tract thus revised required the payment of specified wages
and benefits and Respondent’s utilization of the Union as the
exclusive source of referral of applicants for employment.4
Morton was given a copy of the revised document.5 The resi-
dential contract was thereafter renewed for the terms of
March 4, 1991, through May 31, 1992, and June 1, 1992,
through May 31, 1993.
The second letter of assent which Morton signed bound
Respondent to recognize the Union as the exclusive bar-
gaining representative of a second group of employees (in-
side wiring union)6 and to comply with the terms of the
then-current and any subsequent inside collective-bargaining
agreement (inside contract) between the Union and NECA.
The second letter contained a termination provision which re-
quired written notice to the Union and NECA at least 150
days prior to the anniversary date of the inside contract.
Morton was given a copy of the relevant inside contract,7
which was effective by its terms from April 1, 1988, through
March 31, 1991, required the payment of specified wages
and benefits and established an exclusive union hiring hall.8
Accordingly, I find that Respondent possessed explicit
knowledge of the date of termination of the inside contract
then in effect. The inside contract was subsequently renewed
for the term April 1, 1991, through March 31, 1994.
Morton contends that (1) the revised residential contract
which he received was intended to constitute a collective-bar-
gaining agreement directly between the Union and Respond-
ent, (2) that contract was intended to be the only collective-
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Morton’s business acumen is shown by the fact that his interest
in entering an agreement with the Union was motivated at least in
part by his intention that the Union should subsidize his operations
through its ‘‘target’’ grant program. His awareness of the legal im-
plications of his activities is demonstrated by the fact that he pur-
portedly took action to prevent tort liability arising from the use of
his corporate name on an employee’s vehicle.
10 For the reasons set forth in text, I find Bonanno Linen Service
v. NLRB, 454 U.S. 404 (1982), and its progeny to be inapposite
here.
11 The record concerning the jurisdictional status of the work per-
formed by Respondent’s employees on the Southern Indiana Wood
Preservation job is not wholly clear.
12 Findings concerning Respondent’s abandonment of the collec-
tive-bargaining agreements are based on the credited and essentially
uncontroverted testimony of Roger Bonesteel, one of Respondent’s
employees from June 1, 1991, through December 8, 1992.
Bonesteel’s evidence concerning the second Rose Disposal job was
corroborated by Scott and Wilkie’s hearsay accounts of the Union’s
November 1991 surveillance of Respondent’s operations, while
Bonesteel’s account of the Texas Eastern job is supported by Re-
spondent’s own timesheets for that job. Although Morton initially
testified that the Texas Eastern job involved high-voltage trans-
mission work outside the Union’s jurisdiction, he subsequently ac-
knowledged that two of his employees on that job did the work of
union electricians.
13 Wilkie so testified without controversion.
bargaining agreement reached on August 15, 1990, and (3)
he was unaware that he had signed the two letters of assent
because he did not read any of the documents which he
signed. These contentions are rejected for the following rea-
sons: (1) it was the Union’s general practice to negotiate en-
tire collective-bargaining agreements only with NECA and
not with individual employers, (2) the named parties to the
revised residential contract were the Union and NECA, not
the Union and Respondent, (3) it would be irrational for a
contract negotiated and executed on August 15, 1990, to be
given a term of June 1, 1990, through May 31, 1991, when
that contract’s admitted scope did not begin until after June
1, (4) Morton’s signature appears on every page of the re-
vised residential contract, a practice consonant with an ac-
knowledgment of the revisions set forth therein, but does not
appear on the signature line on the final page as one would
expect if he were in fact a contracting party, (5) Morton un-
successfully bid a First Union Methodist Church job in 1992
using noncompetitive wage rates prescribed by the inside
contract, a highly improbable course of action for one who
purported to believe that his company was not bound by that
contract, and (6) Morton had been a member of the Union
for over 20 years in August 1990 and was possessed of a
demonstrated degree of business and legal sophistication9
which render highly improbable his purported failure to read
or comprehend the documents which he signed. Even if I
were to wholly accept Morton’s account of what transpired
on August 15, I could not conclude that Respondent should
be released from its obligations under the agreements which
Morton admittedly executed simply because he failed to read
them prior to execution.10
After operating in at least partial conformity with its obli-
gations under the two letters of assent during the period Au-
gust 1990 through October 1991, Respondent undertook the
following jobs without using the Union’s referral system and
without paying contract-prescribed wages and benefits to its
employees: (1) Petersburg City Park, four employees during
November–December, 1991; (2) Triad Mine, two employees
during March 2–16, 1992; (3) Triad Mine, five employees
during May 4–July 20, 1992; (4) Rose Disposal, three em-
ployees during July or August 1992; (5) Chandler Library,
five employees during July 15–August 13, 1992; (6) Texas
Eastern, six employees during August 10–November 9, 1992;
(7) Rose Disposal, three employees during November 16–De-
cember 8, 1992; and (8) Southern Indiana Wood Preserva-
tion, two employees during December 1–8, 1992. At least
part of the work performed by Respondent’s employees on
all but one of these jobs11 was of the same type as that per-
formed by journeyman wiremen under the inside contract.12
For the foregoing reasons, I find that Respondent, since at
least November 1991, has failed to continue in effect the
terms and conditions of the collective-bargaining agreements
to which it was a party, including those terms requiring it
to utilize the Union’s exclusive hiring hall and to pay appro-
priate wages and benefits. I further find that these terms and
conditions of employment are mandatory subjects for the
purpose of collective bargaining. Accordingly, I conclude
that Respondent has engaged in the unfair labor practice of
refusing to bargain collectively and in good faith with the ex-
clusive collective-bargaining representative of its employees
in violation of Section 8(a)(5) of the Act.
On December 21, 1992, Respondent wrote to the Union
and NECA revoking ‘‘all letters of assent.’’ On January 4,
1993, the Union replied, acknowledging that Respondent’s
termination notice would be effective as to the residential
contract on May 5, 1993, and on March 31, 1994, with re-
spect to the inside contract.
On March 11, 1993, the Union wrote Respondent seeking
to review the latter’s payroll records on March 23 in order
to determine whether Respondent had ‘‘employed workmen
. . . that were hired and compensated contrary to the terms
set forth in our collective bargaining agreements.’’ Respond-
ent’s counsel replied that the suggested inspection date was
inconvenient. The Union repeated its request in an April 7,
1993 letter to Respondent. The second letter was not an-
swered by Respondent.13 I therefore conclude that Respond-
ent has engaged in a second unfair labor practice by refusing
during the term of a valid collective-bargaining agreement to
supply the Union with relevant information necessary for the
latter to properly administer the agreement. I further con-
clude that this unfair labor practice violates Section 8(a)(5)
of the Act as alleged by General Counsel.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
469MORTON ELECTRIC
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
15 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.’’
3. The residential wiring unit and the inside wiring unit
constitute units appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Between August 15, 1990, and May 3, 1993, and at all
times material, the Union has been the exclusive collective-
bargaining representative of the employees in the residential
wiring unit.
5. Since August 15, 1990, and at all times material, the
Union has been the exclusive collective-bargaining represent-
ative of the employees in the inside wiring unit.
6. By repudiating its collective-bargaining agreements with
the Union, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
7. By refusing during the term of its collective-bargaining
agreements with the Union to supply relevant information
necessary for the Union to properly administer those agree-
ments, Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (5) of the Act.
8. The aforesaid unfair labor practices affect interstate
commerce within the meaning of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
those practices and to take certain affirmative action de-
signed to effectuate the policies of the Act. Accordingly, Re-
spondent shall be ordered to recognize and, on request, bar-
gain with the Union pursuant to the collective-bargaining
agreement as the exclusive bargaining representative of the
employees in the appropriate unit and that, where necessary
to restore the status quo ante, Respondent shall reinstate,
honor and abide by both collective-bargaining agreements.
Further, Respondent shall be ordered to make whole any em-
ployees in the bargaining units to the extent they may have
sustained losses in wages or any other benefits because of
Respondent’s repudiation of its agreements with the Union,
such amounts shall be computed as prescribed in Ogle Pro-
tection Service, 183 NLRB 682 (1970), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). Any employee benefit fund reimbursements shall be
made in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979), and employee reimburse-
ments for expenses shall be made in accordance with Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981). Respondent shall also be ordered
to provide the information sought in the Union’s letters of
March 11 and April 7, 1993.
On the foregoing findings of fact and conclusions of law
and on the entire record, I issue the following rec-
ommended14
ORDER
The Respondent, Morton Electric, Inc., Petersburg, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating its collective-bargaining agreement, effec-
tive April 1, 1991, through March 31, 1994, with the Inter-
national Brotherhood of Electrical Workers, Local 16 (the
Union).
(b) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of Respondent’s em-
ployees in the inside wiring unit.
(c) Refusing, during the term of a collective-bargaining
agreement with the Union, to supply the Union, on request,
relevant information necessary to the Union’s proper admin-
istration of the collective-bargaining agreement.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate and honor the terms and conditions of the
parties’ two collective-bargaining agreements from the date
of Respondent’s repudiation thereof in November 1991 for-
ward, and make whole employees for any loss of wages and
other loss of benefits they may have incurred due to the un-
lawful conduct, plus interest, in the manner set forth in the
remedy section of this decision.
(b) Recognize and, on request, bargain with the Union as
the collective-bargaining representative of employees in the
inside wiring unit.
(c) On request, furnish the Union with the information
sought in the Union’s March 11 and April 7, 1993 letters to
Respondent.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Petersburg, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’15 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.