Reynolds & Underhill, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1995

317 N.L.R.B. 1000 (N.L.R.B. 1995)

1000
317 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although the complaint fails to allege the existence of a collec-
tive-bargaining agreement between the parties as a basis for certain
of the 8(a)(5) findings sought here, we note that counsel for the
General Counsel has appended the relevant agreement to the Motion
for Summary Judgment, which is uncontroverted in this case. More-
over, the Respondent in its purported answer does not contest that
it had a collective-bargaining agreement with the Union and indeed
effectively admits that such a contract existed. In these cir-
cumstances, we do not find that the omission of this allegation from
the complaint is sufficient to defeat the Motion for Summary Judg-
ment.
2 Sec. 102.20 of the Rules and Regulations states in full:
The respondent shall, within 14 days from the service of the
complaint, filed an answer thereto. The respondent shall specifi-
cally admit, deny, or explain each of the facts alleged in the
complaint, unless the respondent is without knowledge, in which
case the respondent shall so state, such statement operating as
a denial. All allegations in the complaint, if no answer is filed,
or any allegations in the complaint not specifically denied or ex-
plained in an answer filed, unless the respondent shall state in
the answer that he is without knowledge, shall be deemed to be
admitted to be true and shall be so found by the Board, unless
good cause is shown.
3 The complaint alleges that ‘‘Art Reynolds’’ is the Respondent’s
president.
Reynolds & Underhill, Inc. and International
Brotherhood of Electrical Workers, Local 429.
Case 26–CA–16364
June 28, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
Upon a charge filed by the Union on August 30,
1994, the General Counsel issued a complaint on No-
vember 8, 1994, against Reynolds & Underhill, Inc.,
the Respondent, alleging that it has violated Section
8(a)(1) and (5) and Section 8(d) of the National Labor
Relations Act. Copies of the charge and the complaint
were properly served on the Respondent. The Re-
spondent filed a letter purporting to be an answer to
the complaint on December 12, 1994.
On March 13, 1995, the General Counsel filed a
Motion for Summary Judgment, with exhibits attached.
The General Counsel asserts, inter alia, that the Re-
spondent’s purported answer is deficient under the
Board’s Rules and Regulation and that, even assuming
the Respondent’s submission were to be considered to
be a proper answer, the letter essentially admits the al-
legations of the complaint, raises no material issues of
fact warranting a hearing, and none of the contentions
in the purported answer constitute a valid defense to
the allegations in the complaint. On March 15, 1995,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The complaint, in pertinent part, alleges at para-
graphs 10–15 that:1
10. Since about February 28, 1994, Respondent
has failed to utilize the contractual referral proce-
dure.
11. Since about February 28, 1994 and continu-
ing to date, Respondent has failed to make con-
tractually mandated fund contributions.
12. Since about February 28, 1994 and continu-
ing to date, Respondent has failed to pay contrac-
tual wages to its employees.
13. About July 29, 1994, Respondent, by letter,
withdrew its recognition of the Union as the ex-
clusive collective bargaining representative of the
Unit.
14. Since about July 29, 1994, Respondent has
failed and refused to recognize and bargain with
the Union as the exclusive collective bargaining
representative of the Union.
15. By the conduct described above in para-
graphs 10, 11, 12, 13 and 14, Respondent has
been failing and refusing to bargain collectively
and in good faith with the exclusive collective
bargaining representative of its employees within
the meaning of Section 8(d) of the Act and viola-
tion [sic] of Section 8(a)(1) and (5) of the Act.
The Respondent did not file an answer to the com-
plaint within the 14-day time period set forth in Sec-
tion 102.20 of the Board’s Rules and Regulations.2 On
December 6, 1994, counsel for the General Counsel in-
formed the Respondent by letter that an answer to the
complaint had not been received, that the time for fil-
ing an answer was being extended to December 13,
1994, and that if no answer was filed by that deadline,
the General Counsel would file a Motion for Summary
Judgement with the Board, which, if granted, would
result in all of the allegations in the complaint being
deemed to be admitted to be true.
On December 12, 1994, the Region’s Nashville
Resident Office received a letter, dated December 7,
1994, from the Respondent, by Arthur S. Reynolds,3
stating that ‘‘I am going to try and answer the charges
brought against my company the best I can without an
Attorney. I have been unable to get one that does not
want his money up front.’’ The letter asserted, while
responding directly to paragraphs 10–15 of the com-
plaint, that:
10. The company has had no need for the refer-
ral procedure because the company has not han
[sic] any jobs or contracts to use any of the men
in the union referral pool.
1001REYNOLDS & UNDERHILL, INC.
4 Although counsel for the General Counsel asserts that the Re-
spondent’s letters were not served on the Charging Party, we note
that they were filed pro se. See Acme Building Maintenance, 307
NLRB 358, 359 fn. 6 (1992).
5 See Breeden Painting Co., 314 NLRB 870 (1994); Parisian
Manicure Mfg. Co., 258 NLRB 203 (1981); United Super, 256
NLRB 1186 (1981); and Lloyd’s Laundry & Dry Cleaning, 250
NLRB 1369 (1980). Cf. M. J. McNally, Inc., 302 NLRB 120 (1991),
in which the employer’s pro se answer specifically denied the para-
graph of the complaint that contained the operative facts of the un-
fair labor practices alleged. 6 See, e.g., Nick Robilotto, Inc., 292 NLRB 1279 (1989).
11. The company has not contributed to the
fund for no IBEW #429 members have been on
the payroll.
12. The company has not used any of the con-
tractual wage employees to meet the requirment
[sic] of the contract.
13. As the company did not have any jobs for
the use of Union employees, we withdrew our
contract.
14. The company has not received any new
contracts from the Unoin [sic] to bargain from, as
of today.
15. The company has not refused to bargain
with the Union because the company has not re-
ceived any new contracts from the Union to look
at. So for [sic] the company has lost most of its
job market because of loss of income and interest
on funds borrowered [sic], and not being able to
get the jobs bonded.4
On February 17, 1995, counsel for the General
Counsel informed the Respondent, by letter, that the
Respondent’s letter dated December 7, 1994, was defi-
cient as an answer under Section 102.20 and 102.21 of
the Board’s Rules, enclosed a copy of the applicable
provisions, and informed the Respondent that unless a
proper answer to the complaint was received by Feb-
ruary 24, 1995, the General Counsel would file a Mo-
tion for Summary Judgment. The Respondent did not
respond to counsel for the General Counsel’s February
17 letter.
We find that the Respondent’s letter does not con-
stitute a proper answer under Section 102.20 because
it fails to meet the substance of the complaint allega-
tions and therefore is legally insufficient under the
Board’s Rules.5 Moreover, even assuming that the Re-
spondent’s answer meets the Board’s requirements, we
agree with the General Counsel that the Respondent’s
statements there are insufficient to rebut the allegations
of the complaint and do not otherwise raise any mate-
rial issue of fact or law that would warrant a hearing
in this case.
In this regard, we note that paragraphs 10, 11, and
12 of the complaint allege that during the term of the
contract the Respondent failed to take actions required
by the contract. The Respondent in its purported an-
swer does not deny the failure to take these actions but
essentially attempts to explain its failures to abide by
the contract. It is well settled, however, that during the
term of a collective-bargaining agreement an employer
is prohibited from modifying the terms and conditions
of employment established by that agreement without
obtaining the consent of the union.6 The Respondent’s
answer does not address this legal principle and its an-
swer is legally insufficient to defeat paragraphs 10, 11,
and 12 of the complaint.
Paragraphs 13 and 14 of the complaint allege that as
of a specific date the Respondent withdrew recognition
from the Union as its employees’ exclusive bargaining
representative and has since refused to bargain with the
Union. Paragraph 15 then alleges a general refusal to
bargain based on the Respondent’s actions detailed in
paragraphs 10–14. The Respondent’s answer to the
withdrawal of recognition allegation in paragraph 13 is
a proffered reason for why it ‘‘withdrew our contract.’’
The reason offered is a legally insufficient basis on
which to withdraw recognition, which is what the com-
plaint alleges as a violation. The Respondent’s answer
to the specific and general allegation that it has refused
to bargain with the Union is that it has not received
any new contracts from the Union. It claims that be-
cause of this failure on the Union’s part it has not re-
fused to bargain. The alleged nonreceipt of new con-
tracts, however, would not privilege the specific and
general refusal to bargain alleged in the complaint and
is a legally insufficient answer to the complaint allega-
tions in paragraphs 14 and 15.
We therefore grant the General Counsel’s Motion
for Summary Judgment. Accordingly, we conclude that
the Respondent has violated Section 8(a)(1) and (5)
and Section 8(d) of the Act by unlawfully refusing to
bargain as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Burns, Tennessee, is engaged in
commercial, industrial, and residential electrical con-
tracting. During the 12-month period ending October
31, 1994, the Respondent, in conducting its business
operations, performed services valued in excess of
$50,000 for various enterprises located in States other
than the State of Tennessee. During the 12-month pe-
riod ending October 31, 1994, the Respondent, in con-
ducting its business operations, provided services val-
ued in excess of $50,000 for T.W. Frierson’s Contrac-
tors Co., Inc., a corporation with an office and place
of business in Nashville, Tennessee, which has been
engaged in providing commercial and industrial con-
tracting services and which itself has performed serv-
ices valued in excess of $50,000 in States other than
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 All dates are in 1994 unless otherwise noted.
8 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 employees, but the amount of such
reimbursement will constitute a setoff to the amount that the Re-
spondent otherwise owes the fund.
the State of Tennessee. We find that the Respondent
is an employer engaged in commerce within the mean-
ing of Section 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
About June 21, 1991, the Union was certified as the
collective-bargaining representative of employees in
the following unit that is appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act:
All employees involved in electrical construction
at the Employer’s Burns, Tennessee facility, in-
cluding journeymen, wiremen, residential wiremen
and apprentices; excluding all other employees of
the Employer, including office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
At all times since June 21, 1991, the Union has been
the exclusive collective-bargaining representative of
these employees based on Section 9(a) of the Act. The
Respondent and the Union were parties to a collective-
bargaining agreement that was effective from Septem-
ber 1, 1991, until August 31, 1994.
Since about February 28, 1994,7 the Respondent has
failed to utilize the contractual referral procedure.
Since about February 28 and continuing to date, the
Respondent has failed to make contractually mandated
fund contributions and to pay contractual wages to its
employees. About July 29, the Respondent, by letter,
withdrew its recognition of the Union as the exclusive
collective-bargaining representative of the unit employ-
ees. Since about July 29, the Respondent has failed
and refused to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
these employees. We find that by the conduct de-
scribed above the Respondent has failed and refused to
bargain collectively and in good faith with the Union
as the exclusive collective-bargaining representative of
its employees in violation of Section 8(a)(1) and (5)
and Section 8(d) of the Act.
CONCLUSIONS OF LAW
By failing to utilize the contractual referral proce-
dure since about February 28; by failing to make con-
tractually mandated fund contributions and to pay con-
tractual wages to its employees since about February
28, and continuing to date; by withdrawing recognition
from the Union as the exclusive collective-bargaining
representative of the unit employees about July 29; and
by failing and refusing to recognize and bargain with
the Union since about July 29, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Sec-
tion 8(d) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (5) and Section 8(d) of the Act, we
shall order that the Respondent cease and desist from
engaging in such conduct and to take certain affirma-
tive action designed to effectuate the policies of the
Act. Specifically, having found that the Respondent
unlawfully withdrew recognition from the Union, we
shall order the Respondent to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the unit employees. We shall also re-
quire the Respondent to utilize the contractual referral
procedure that it has not done since about February 28,
1994. Additionally, we shall order the Respondent to
make whole the unit employees for any losses they
suffered by reason of its failure to pay contractual
wages, such amounts to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as provided in New Horizons for the Retarded, 283
NLRB 1173 (1987). We shall further order the Re-
spondent to make whole the unit employees by making
contractually mandated fringe benefit contributions that
have not been paid in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). The
Respondent shall also reimburse its employees for any
expenses resulting from its failure to make the required
contributions, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981), such amounts to be computed in the
manner set forth in Ogle Protection Service, above,
with interest as prescribed in New Horizons for the Re-
tarded, above.8
ORDER
The National Labor Relations Board orders that the
Respondent, Reynolds & Underhill, Inc., Burns, Ten-
nessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully withdrawing recognition from the
Union and thereafter failing and refusing to recognize
and bargain collectively and in good faith with the
Union as the exclusive collective-bargaining represent-
ative in the bargaining unit described below.
(b) Failing and refusing to utilize the contractual re-
ferral procedure, to make contractually mandated fund
1003REYNOLDS & UNDERHILL, INC.
9 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.’’
contributions, and to pay contractual wages to its em-
ployees.
(c) 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) On request, bargain with International Brother-
hood of Electrical Workers, Local 429, as the exclu-
sive representative of employees with respect to rates
of pay, wages, hours, and other terms and conditions
of employment in the following appropriate unit:
All employees involved in electrical construction
at the Employer’s Burns, Tennessee facility, in-
cluding journeymen, wiremen, residential wire-
men, and apprentices; excluding all other employ-
ees of the Employer, including office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
(b) Utilize the contractual referral procedure pro-
vided for in the Respondent’s collective-bargaining
agreement with the Union.
(c) Make whole the unit employees, with interest,
for any losses they suffered by reason of the Respond-
ent’s failure to pay contractual wages to its employees.
(d) Make whole the unit employees by paying all
contractually mandated fund contributions that are
presently delinquent and reimburse the unit employees
for any expenses they incurred by reason of the Re-
spondent’s failure to pay such contributions, with inter-
est.
(e) 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, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Burns, Tennessee, copies of
the attached notice marked ‘‘Appendix.’’9 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 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, dissenting.
I would not grant summary judgment. In my view,
the Respondent has tendered an answer that raises fac-
tual issues requiring a hearing. Concededly, the answer
is inartfully drawn. This is not surprising, however, in-
asmuch as it was written without benefit of counsel. In
essence, the answer avers that, during the relevant peri-
ods, the Respondent has not had any unit work to per-
form. Thus, it has not had occasion to use the Union’s
referral procedures. Further, if there were no unit em-
ployees, there was no one to whom contract wages
were owed and no one for whom fund payments were
to be made.
Concededly, the Respondent was not privileged to
terminate its contract or to wait for a new proposal
from the Union, even if it had no unit employees dur-
ing the relevant periods. I note, however, that the Gen-
eral Counsel seeks complete, not partial, summary
judgment. In addition, given the interrelationship of the
various allegations, it would not be practical to grant
summary judgment regarding some while litigating
others.
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 unlawfully withdraw recognition from
International Brotherhood of Electrical Workers, Local
429, and thereafter fail and refuse to recognize and
bargain collectively and in good faith with this Union
as the exclusive collective-bargaining representative of
employees in the bargaining unit.
WE WILL NOT fail and refuse to utilize the contrac-
tual referral procedure, to make contractually mandated
fund contributions, and to pay contractual wages to our
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive representative of our employees
with respect to rates of pay, wages, hours, and other
terms and conditions of employment in the following
appropriate unit:
All employees involved in electrical construction
at the Employer’s Burns, Tennessee facility, in-
cluding journeymen, wiremen, residential wire-
men, and apprentices; excluding all other employ-
ees of the Employer, including office clerical em-
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees, professional employees, guards and su-
pervisors as defined in the Act.
WE WILL utilize the contractual referral system pro-
vided for in our collective-bargaining agreement with
the Union.
WE WILL make whole the unit employees, with in-
terest, for any losses they suffered by reason of our
failure to pay contractual wages to the unit employees.
WE WILL make whole the unit employees by paying
all contractually mandated fund contributions that are
presently delinquent and WE WILL reimburse the unit
employees for any expenses they incurred by reason of
our failure to pay such contributions, with interest.
REYNOLDS & UNDERHILL, INC.