United Electrical Contractors Assn.

National Labor Relations Board - Board Decisions

Oct 29, 1993

312 N.L.R.B. 1118 (N.L.R.B. 1993)

1118
312 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although the Respondent’s answer denies or effectively denies
various allegations in the complaint, including the allegation that the
Union requested bargaining on March 8, 1993, the General Counsel
has submitted documentary evidence supporting the complaint’s alle-
gations, including the Union’s March 8, 1993 letter requesting bar-
gaining and the Respondent’s March 18, 1993 correspondence
acknowleging receipt of the Union’s letter, and the Respondent has
not disputed the authenticity of any of those documents in response
to the Notice to Show Cause. Further, the Respondent’s answer fails
to even address various other allegations in the complaint, including
the allegation in par. 11 of the complaint that the Respondent has
refused to bargain with the Union since on or about March 8, 1993.
Although the Respondent alleges as an affirmative defense that no
proper demand for bargaining was made, we find the Respondent’s
defense without merit based on the aforementioned documentary evi-
dence. Accordingly, as the Respondent has failed to deny or ade-
quately explain its failure to deny the allegation that it has refused
to bargain, it is deemed to be admitted to be true. See Sec. 102.20
of the Board’s Rules.
2 The Respondent’s cross-motion to consolidate this proceeding
with Case 29–CA–17393, which the Respondent asserts alleges that
it violated Sec. 8(a)(1), (2), and (3) of the Act and is scheduled for
hearing on January 26, 1994, is therefore denied.
3 Member Raudabaugh notes that he did not participate in the un-
derlying representation proceeding.
United Electrical Contractors Association a/k/a
United Construction Contractors Association
and Local Union No. 3, International Brother-
hood of Electrical Workers, AFL–CIO. Case
29–CA–17284
October 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 26, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 29–RC–7191. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On September 20, 1993, the General Counsel filed
a Motion for Summary Judgment. On September 23,
1993, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On October 13,
1993, the Respondent filed a response to the Notice to
Show Cause; objection to the General Counsel’s Mo-
tion for Summary Judgment; and cross-motion to con-
solidate.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain but attacks the validity of the certification on
the basis of its objections to the election in the rep-
resentation proceeding.1
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.2
On the entire record, the Board3 makes the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, the Respondent has
been an organization composed of various employers
engaged as electrical contractors in New York State,
one purpose of which is to represent its employer-
members in negotiating and administering collective-
bargaining agreements with various labor organiza-
tions, including Local 363, International Brotherhood
of Teamsters, AFL–CIO (Local 363).
During the year ending December 31, 1992, the em-
ployer-members of the Respondent, collectively, in the
course and conduct of their business operations derived
gross revenues therefrom in excess of $500,000. Dur-
ing the year ending December 31, 1992, the employer-
members of the Respondent, collectively, in the course
and conduct of their business operations purchased and
received at their New York State facilities electrical
products and other supplies and materials valued in ex-
cess of $50,000 directly from points outside New York
State. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held October 18, 1989, the
Union was certified on February 23, 1993, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All electricians, electrical maintenance mechanics,
helpers, apprentices and trainees employed in the
electrical field employed by employer-members of
Respondent, but excluding all office clerical em-
1119UNITED ELECTRICAL CONTRACTORS ASSN.
4 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.’’
ployees, guards and supervisors as defined in the
Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about March 8 and April 16, 1993, the
Union, by letter, has requested the Respondent to bar-
gain collectively, and, since March 8, 1993, the Re-
spondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after March 8, 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting 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 violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, United Electrical Contractors Association
a/k/a United Construction Contractors Association,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local Union No. 3,
International Brotherhood of Electrical Workers, AFL–
CIO, as the exclusive bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All electricians, electrical maintenance mechanics,
helpers, apprentices and trainees employed in the
electrical field employed by employer-members of
Respondent, but excluding all office clerical em-
ployees, guards and supervisors as defined in the
Act.
(b) Post at its facility in New York, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’4 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 29 after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local Union
No. 3, International Brotherhood of Electrical Workers,
AFL–CIO, as the exclusive representative of the em-
ployees in the bargaining unit.
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, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All electricians, electrical maintenance mechanics,
helpers, apprentices and trainees employed in the
electrical field employed by our employer-mem-
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bers, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
UNITED ELECTRICAL CONTRACTORS AS-
SOCIATION A/K/A UNITED CONSTRUC-
TION CONTRACTORS ASSOCIATION