R. L. Reisinger Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 915 (N.L.R.B. 1993)

915
312 NLRB No. 137
R. L. REISINGER CO.
1 On May 21, 1993, the judge issued the attached decision. The
Respondent filed exceptions and a supporting brief. The Charging
Party filed a cross-exception and supporting brief. The Respondent
filed a brief in opposition to the Charging Party’s cross-exception.
2 The Respondent excepts to the judge’s finding that Union Busi-
ness Agent Brotherton was unaware that Rob VanMeter was em-
ployed by the Respondent on a project in Gahanna, Ohio. We find
no merit in this exception. The Respondent cites Ronald Reisinger’s
testimony that after speaking with Reisinger, Brotherton ‘‘proceeded
to go into the job and look around, from, well, what I was told and
talked to my electrician—my man on the job.’’ However, Reisinger
did not identify the source of this hearsay statement about
Brotherton’s visit to the jobsite. Nor was any other evidence adduced
concerning the alleged encounter between Brotherton and VanMeter.
We, therefore, conclude that the record supports the judge’s finding
that Brotherton was unaware of VanMeter’s presence on the
Gahanna, Ohio jobsite.
The Respondent also excepts to the judge’s finding that R. L.
Reisinger Co., Inc., paid the debts of the sole proprietorship, Ronald
L. Reisinger d/b/a R. L. Reisinger Company. The Respondent points
to Bernadine Reisinger’s testimony that the sole proprietorship debts
were not paid out of the new corporation. However, this testimony
is qualified by Bernadine Reisinger’s answer of ‘‘Yes’’ to the fol-
lowing question: ‘‘Now, regarding bills, Mr. Reisinger had accumu-
lated some debt when he was a sole proprietorship and that was
eventually paid out of your savings account, correct?’’ She also stat-
ed that she and her husband had separate savings accounts and that
she did not recall which savings account she used to pay the sole
proprietorship debts. Further, when Ronald Reisinger was asked who
paid the debts of the sole proprietorship, he answered: ‘‘The new
corporation paid the debts.’’ Considering the testimony of Bernadine
and Ronald Reisinger, we find that the record as a whole supports
the judge’s determination that the Respondent paid the debts of the
sole proprietorship. 1 All following dates will be in 1992, unless otherwise indicated.
R. L. Reisinger Co., Inc. and International Brother-
hood of Electrical Workers, Local Union No.
683, AFL–CIO. Case 9–CA–29721
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The central issue in this case is whether the Re-
spondent is the alter ego of Ronald L. Reisinger d/b/a
R. L. Reisinger Company (Reisinger Co.) and violated
Section 8(a)(5) by refusing to adhere to the collective-
bargaining agreement between Reisinger Co. and the
Union.
Administrative Law Judge Richard H. Beddow, Jr.
found that the Respondent violated the National Labor
Relations Act as alleged.1 The National Labor Rela-
tions Board has considered the decision and the record
in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings,2 and conclu-
sions, to amend the remedy, and to adopt the rec-
ommended Order.
AMENDED REMEDY
The Charging Party excepts to the judge’s rec-
ommended remedy insofar as it does not expressly re-
quire the Respondent to make whole those individuals
who were on the Charging Party’s ‘‘out of work’’ list,
and who were not referred to the Respondent due to
the Respondent’s refusal to adhere to the hiring hall
provisions of the collective-bargaining agreement. We
agree that the violation found in this proceeding war-
rants the inclusion of such individuals in the make-
whole remedy. Accordingly, if there are employees,
commencing with the 10(b) period, who were denied
an opportunity to work for the Respondent because of
the Respondent’s refusal to abide by its collective-bar-
gaining agreement with the Union, the Respondent will
be ordered to make them whole, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and
Merryweather Optical Co., 240 NLRB 1213 (1979). A
determination of whether such employees exist is best
left to the compliance stage of this proceeding. See,
e.g., Yeager Distributing, 261 NLRB 847, 849 fn. 10
(1982).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, R. L. Reisinger Co., Inc.,
Westerville, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Mark G. Mehas, Esq., for the General Counsel.
Roger L. Sabo, Esq., of Columbus, Ohio, for the Respondent.
Mark D. Tucker, Esq., of Columbus, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Columbus, Ohio, on February 18,
1993. Subsequent to a requested extension in the filing date,
briefs were filed by the General Counsel and the Respondent.
The proceeding is based on a charge filed July 2, 1992,1 by
International Brotherhood of Electrical Workers, Local Union
No. 683, AFL–CIO. The Regional Director’s complaint dated
September 18, 1992, as amended, alleges that the Respond-
ent, R. L. Reisinger Co., Inc., of Westerville, Ohio, is a dis-
guised continuance of Ronald L. Reisinger d/b/a R. L.
Reisinger Company, a sole proprietorship, and that it violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by failing and refusing to adhere to a contractors’ association
agreement with the Union and by attempting to repudiate its
alleged collective-bargaining relationship with the Union.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged as an electrical con-
tractor and as a certified female business enterprise with the
city of Columbus. It annually purchases and receives goods
from points outside Ohio and it admits that at all times mate-
rial it has been an employer engaged in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. It also admits that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In 1979, R. L. Reisinger Co. was operating as a sole
prioretorship owned by Ronald Reisinger and was engaged in
the business of electrical contracting. On November 29,
1979, Reisinger signed a letter of assent authorizing the Cen-
tral Ohio Chapter, National Electrical Contractors Associa-
tion, Inc. (NECA) to be its collective-bargaining agent.
Reisinger also agreed to be bound by the terms of the exist-
ing collective-bargaining agreement which was in effect from
June 1, 1979, to May 31, 1982. The agreement’s automatic
renewal clause states: ‘‘[The Agreement] shall continue in
effect from year to year thereafter, from June 1, through May
31 of each year, unless changed or terminated in the way
later provided herein.’’ Any party who desired to terminate
that agreement had to notify the other, in writing, on or be-
fore January 31, 1982. Thereafter, the NECA entered into
three other collective-bargaining agreements with the Union.
The most recently expired collective-bargaining agreement
was in effect from June 1, 1989, to May 31, 1992. (This was
renewed by NECA and the Union and the latest agreement
is in effect until May 31, 1993.) The agreement provides that
signatory employees are to hire from the Union’s exclusive
hiring hall. The automatic renewal language remains un-
changed.
On January 2, 1981, R. L. Reisinger incorporated and of-
ficially became known as R. L. Reisinger Co., Inc. It also
became designated by the city of Columbus as a ‘‘Female
Business Enterprise.’’ Bernadine Reisinger, Ronald’s wife,
became the majority stockholder and the vice
president/secretary. Ronald Reisinger owns 49 percent of the
Company and has always run its day-to-day operations. On
February 3, 1981, Bernadine Reisinger informed the Union
of the change in the name of the Company but the letter to
the Union did not state that it was voiding the collective-bar-
gaining agreement or its authorization to NECA to be its col-
lective-bargaining agent nor did it indicate that the business
was not a continuance of the sole proprietorship.
Until December 1981, the Respondent used the Union’s
hiring hall to employ electricians. In 1980 and 1981,
Bernadine Reisinger signed the ‘‘Payroll Report for Elec-
trical Contractors’’ which must be submitted by signatory
employers to the collective-bargaining agreement for pur-
poses of recording pension contributions. Bernadine
Reisinger continued to submit these reports to the Union as
required by the collective-bargaining agreement until Feb-
ruary 1988. The reports from January 1982 to February 1988
indicate that ‘‘no’’ employees worked for the Respondent.
On March 25, 1988, Union Business Manager Timothy J.
Lucas filled out a ‘‘stop card’’ (entitled Removal Notice To
Employees Benefit Board), on behalf of R. L. Reisinger Co.
Lucas explained that a stop card is filled out if an electrical
contractor is only working at a certain site, and the job ends,
and he has no other layoffs, and does not anticipate having
people to be reemployed with him for a certain length of
time, and he asks the Union to send a stop card in the Na-
tional Electrical Contractors’ office so the employer does not
have to continue filling out the the monthly reports required
under the contract. It is a way for the employer not to have
to fill out monthly reports listing fringe benefits, etc., taken
out for its employees when it has no employees so it can
avoid the inconvenience of sending in monthly reports which
simply state that it has no employees and he said that cards
are filled out at the request of the employer.
Lucas asserts that he had no knowledge that Reisinger had
any employees after March 25, 1988, until on March 4,
1992, when Lucas was told that by an official from the city
of Columbus, Ohio’s prevailing wage office that Respondent
had a job at City Center Mall at a store called I. B. Diffu-
sion and at a store called Claire’s Boutique and that there
were people working on the job. Lucas thereafter visited the
site, spoke with two of Respondent’s employees (who were
working as electricians and who had not been referred to the
job by the Union and no fringes or other deductions were re-
mitted to the Union on their behalf), and thereafter filed a
grievance and the charge in this proceeding.
On June 1, 1992, Bernadine Reisinger wrote Business
Manager Joe Hoover (who is also the Union’s financial sec-
retary) in response to the grievance and asserted that as she
had not signed any agreements with the Union after she had
informed them in 1981 that the Company had been incor-
porated under her ownership and control, the Company was
not in violation of any agreement.
Ron Reisinger also testified that in 1987 Business Rep-
resentatives Tim Lucas and Joe Hoover came by the
Muirfield project he was working on and talked to him about
the project, asked how things were going, and also asked
about his son-in-law and mentioned the job he (Lucas) knew
‘‘we’d’’ done on Main Street prior to that time.
Reisinger also spoke briefly with Union Business Agent
Ken Brotherton on a project in Gahanna, Ohio, in November
1988, when Brotherton drove by and asked him who was
doing the job. Reisinger said ‘‘he’’ was. Although employee
Rob VanMeter was also on the job at some undisclosed
point, there is nothing to indicate Brotherton was made
aware of that fact.
Otherwise, the record shows that over the years the Union
had acquiesced in allowing Reisinger to ‘‘work with the
tools’’ on jobs without question.
The record also shows that on one occasion in 1982,
Reisinger rehired employee Charlie French (a worker new to
the hiring hall procedures) without going through the referral
procedure after he had signed the out-of-work list. The
Union asked French to come back to the hall. When French
quit to do so, the union business agent suggested that it
would be alright for Reisinger to ‘‘work with the tools’’ and
finish the job himself. He did so and never again called the
Union for any referrals. In his testimony, Reisinger began to
give his current interpretation of that described occasion and
characterized it as an indication that the Union therefore be-
lieved it did not have a contract with ‘‘us.’’ However, no
union representative made any such statement and the se-
917R. L. REISINGER CO.
quences of events failed to provide a reasonable or likely
basis for Reisinger to reach such a conclusion, and such a
conclusion otherwise is inconsistent with the Respondent’s
continuation of filing contractor’s payroll reports to the
Union until March 1988.
III. DISCUSSION
On brief, the Respondent contends that the charge was un-
timely under Section 10(b) of the Act and that there is no
currently effective bargaining agreement. At first glance,
with special reference to the number of years that have
passed, it might appear that Respondent’s various arguments
in support of its contentions might have some equitable sup-
port. The record, however, shows that neither Ron Reisinger
himself nor the Respondent Company ever made a timely re-
pudiation of the 8(f) agreement he signed in 1979, which
agreement contained an automatic renewal provision.
The record also provides ample support for a finding that
Respondent Reisinger Co., Inc. is a disguised continuance of
Ron Reisinger’s sole proprietorship. Other than the incorpo-
ration and granting a 51-percent interest in the corporation to
wife Bernadine Reisinger, R. L. Reisinger Co., Inc. remained
the same entity as the sole proprietorship and the change to
an incorporated status was clearly motivated principally by
the desire to obtain business by qualifying as a ‘‘minority fe-
male enterprise.’’
After the date that Respondent was incorporated in 1981,
the Company retained that same office at the same address
and the Company paid debts or financial obligations accrued
by the sole proprietorship and continued to use the same sta-
tion wagon that Ron Reisinger had used when he was the
sole proprietor until the corporation subsequently purchased
a van. After incorporation, Respondent used the same whole-
sale suppliers to obtain its supplies. Both before and after in-
corporation, Ron Reisinger prepared estimates to bid on jobs,
did electrical work in this field, and held the electrical li-
cense necessary to get Columbus job permits in his own
name, while Bernadine Reisinger took over banking, book-
keeping, and office work. Ron Reisinger retained a 49-per-
cent ownership interest and official company positions as
both vice president and secretary and I find that under these
circumstances the Respondent Company is bound under the
National Labor Relations Act to the labor obligations entered
into by the predecessor sole proprietorship.
Here, it is clear the involved 8(f) construction industry
contract continued to automatically renew itself during those
periods when Respondent had, at most, a ‘‘one man unit’’
because Respondent failed to repudiate the 8(f) agreement
during any of those periods of time. See Stack Electric, 290
NLRB 575, 577–578 (1988). As a consequence, Respondent
is bound to the current NECA agreement and it violated Sec-
tion 8(a)(1) and (5) by failing to abide by the contract and
by attempting an untimely repudiation of its collective-bar-
gaining relationship with the Union by its letter of June 1,
1992.
The Board’s policies and practices in matters of this nature
are described in detail in the administrative law judge’s deci-
sion affirmed and adopted by the Board in Neosho Construc-
tion Co., 305 NLRB 100 (1991), and I find that the rationale
expressed therein controls all pertinent aspects of the instant
case.
In particular, it is noted that the Neosho case involved a
14-year period of automatic renewal during an inactive rela-
tionship and it is clear that the agreement did not expire
merely due to the passage of time and thus, the Union’s cur-
rent agreement with the Association is valid and enforceable.
At the present time, Respondent has at least two employ-
ees so it cannot repudiate the contract, its current relationship
with the Union, and its obligation to satisfy provisions rel-
ative to the use of the hiring hall and the making of benefit
fund contributions.
I also find that the Union took no action, as alleged by
Reisinger, that would indicate that it had repudiated the con-
tract when, in 1982, it ‘‘recalled’’ an employee who had
impoperly returned to work at the Respondent while still on
the hiring hall’s out-of-work list. In the same vein, I find that
the Union’s explained prior conduct in not contesting
Reisinger’s personal work with the tools as an electrician
does not bar it from enforcing other aspects of the agree-
ment.
While the Respondent also attempts to assert that the
Union had knowledge of the Company’s noncompliance with
the agreement in both 1987 and 1988, well prior to the 6-
month 10(b) period, the speculative shreds of information
that the Union allegedly obtained by speaking to Reisinger
in 1987 about a job ‘‘we’d’’ done (this could refer to Ron
Reisinger as the Company rather than to a plural number of
persons), asking him in 1988 who was doing job (to which
he answered ‘‘he was,’’ an ambigious reply which could
mean the Company or himself individually), about prior al-
leged noncompliance conduct by Respondent, were not suffi-
ciently ‘‘bald’’ or notorious to put the Union on notice that
Reisinger intended to repudiate the 1979 stipulation agree-
ment. And, in fact, Respondent submitted payroll reports
until February 1988, after the 1987 incident, which action is
inconsistent with any prior repudiation and, in March 1988,
it was given a ‘‘stop card’’ which thereafter waived the filing
of reports while the Company had no employees. Accord-
ingly, I find no notice of noncompliance to the Union, in
1987 or 1988, see the Neosho case, supra, and I find that the
Union did not gain sufficient notice of Respondent’s repudi-
ation by conduct until it was alerted to that possibility by the
Columbus prevailing wage office on March 4, 1992, a date
within the 10(b) period.
Under all these circumstances I find that the General
Counsel has shown that the current NECA agreement is valid
and enforceable, and that the Employer is obligated to abide
by the hiring hall and benefit provisions of the contract, and
that Respondent violated Section 8(a)(1) and (5) by failing
to abide by the terms of this agreement and by repudiating
its collective-bargaining relationship with the Union, as al-
leged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commece within
the meaning of Section 2(6) and (7) of the Act and it is in
the position of a so-called ‘‘disguised continuance’’ of Ron-
ald L. Reisinger d/b/a R. L. Reisinger Company, a sole pro-
prietorship.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to adhere to the provisions ef-
fective under a collective-bargaining agreement regarding
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
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
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.’’
hiring hall and benefit fund obligations and by attempting to
repudiate its agreement with the Union, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
REMEDY
Having found that Repsondent has engaged in certain un-
fair labor practices, the recommended Order requires Re-
spondent to cease and desist therefrom and to take the fol-
lowing affirmative action designed to effectuate the policies
of the Act.
Respondent will be ordered to make whole unit employ-
ees, as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), for any losses they may have suffered as a result of
Respondent’s failure to apply the current collective bargain-
ing to which it is bound by virtue of its contract stipulation
with the Union, commencing with the 10(b) period, including
contributions and payments the Union’s contractural trust
funds would have received, with interest computed in the
manner prescribed by New Horizons for the Retarded, 283
NLRB 1173 (1987), and Merryweather Optical Co., 240
NLRB 1213 (1979). Finally, Respondent will be required to
post the notice to employees attached as the appendix at any
jobsite currently in progress within the geographical jurisdic-
tion of the applicable agreement and at its place of business
in Westerville, Ohio.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, R. L. Reisinger Co., Inc., Westerville,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Repudiating its automatically renewed collective-bar-
gaining agreement with International Brotherhood of Elec-
trical Workers, Local Union No. 683, AFL–CIO (except as
provided in that agreement), and failing and refusing to rec-
ognize and abide by the terms of the agreement.
(b) Refusing to bargain with the Union by failing and re-
fusing to adhere to contractual hiring hall procedures and
failing and refusing to make contractually required reports
and monetary payments relative to benefit funds that are
mandatory subjects of bargaining.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Pay all delinquent pension fund payments or other fund
payments that are mandatory subjects of bargaining, as re-
quired by the parties’ relevant collective-bargaining agree-
ments.
(b) In the manner set forth in the remedy section of this
decision, make unit employees whole for any losses resulting
fom the Respondent’s failure to adhere to the automatically
renewed relevant collective-bargaining agreements, including
reimbursing them for any loss of wages and benefits.
(c) 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 and other payments due under the terms
of this Order.
(d) Post at its current jobsites within the geographical area
encompassed by the appropriate unit and at its place of busi-
ness in Westerville, Ohio, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized repesentative, shall be
posted by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing 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, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 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 repudiate our automatically renewed collec-
tive-bargaining agreement with International Brotherhood of
Electrical Workers, Local Union No. 683, AFL–CIO by fail-
ing and refusing to adhere to contractual hiring hall proce-
dures and failing and refusing to make contractually required
reports and payments to relative fringe benefit funds.
WE WILL NOT attempt to repudiate the agreement other
than in accordance with its provisions.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the execise of the rights
guaranteed them by Section 7 of the Act.
WE WILL pay all delinquent benefit and pension fund pay-
ments as required by the automatically renewed collective-
919R. L. REISINGER CO.
bargaining agreement and will hire and recall employees
under the agreement’s hiring hall procedures.
WE WILL make unit employees whole for our failure to
honor our agreement with the Union, including contributions
or payments to which the Union and the contractual trust
funds are entitled under the agreement, with interest.
R. L. REISINGER CO., INC.