Acoustics, Inc.

National Labor Relations Board - Board Decisions

May 31, 1984

270 N.L.R.B. 1046 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acoustics, Inc., and Sumon Corporation and Carpen-
ters District Council of Denver and Vicinity and
its affiliate Local 1391. Case 27-CA-8297
31 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 9 March 1983
the General Counsel of the National Labor Rela-
tions Board issued a complaint 22 April 1983
against the Respondent, alleging that it has violated
Section 8(a)(1) and (5) and Section 2(6) and (7) of
the National Labor Relations Act. Although prop-
erly served copies of the charge and complaint, the
Respondent has failed to file an answer.
On 10 June 1983 the General Counsel filed a
Motion for Summary Judgment. On 21 June 1983
the Board issued an order transferring the proceed-
ing 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 delegat-
ed its authority in this proceeding to a three-
member panel.
Upon the entire record in this proceeding, the
Board makes the following
Ruling on Motion for Summary Judgment
The complaint alleges, inter alia, that the Re-
spondent Acoustics at all material times herein has
been a corporation duly organized under the laws
of the State of Utah, that the Respondent Sumon
has been a corporation duly organized under and
existing by virtue of the laws of the State of Colo-
rado, that each maintains an office and place of
business in Denver, Colorado, where it has been
engaged in the construction industry and that each
in the course of its business operations provided
services valued in excess of $50,000 for other enter-
prises within the State of Colorado, each directly
engaged in interstate commerce. The complaint al-
leges that the Respondent Acoustics and Sumon
have at all times material been affiliated business
enterprises and by virtue of their operations have
constituted a single integrated business enterprise
and a single employer within the meaning of the
Act. The complaint also alleges that at all times
material the Respondents Acoustics and Sumon
have existed as a dual or "double-breasted" oper-
ation, wherein the Respondent Acoustics has func-
tioned as a union contractor and the Respondent
Sumon has functioned as a nonunion contractor,
utilizing two separate units of employees.
270 NLRB No. 152
As set forth in the complaint, the following em-
ployees of the Respondent constitute a unit appro-
priate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
[T]he employees described in the 1981-1984
Master Agreement covering dry wall, acousti-
cal, lather, insulation and interior systems
work in the State of Colorado between the
United Brotherhood of Carpenters and Joiners
of America, Local Union 1391, the Carpenters
District Council of Denver and Vicinity, the
Carpenters District Council of Southern Colo-
rado, the Colorado State Council of Carpen-
ters and the Rocky Mountain Association of
Gypsum Drywall Contractors, to which Re-
spondent is signatory.
The complaint further alleges that at all times
material "a majority of the employees of Acoustics
in the unit described above . . . designated or se-
lected the Union as their Representative for the
purposes of collective bargaining with Acoustics,"
and that the Union by virtue of Section 9(a) of the
Act has been the exclusive representative of the
employees in said unit for the purposes of collec-
tive bargaining.
Finally, paragraph 10 of the complaint alleges
that commencing on or about 8 February 1983, and
at all times thereafter, the Respondent has failed
and refused to meet and bargain with the Union,
refused to recognize the Union as the exclusive
bargaining representative of the employees de-
scribed above (as the appropriate unit); that the Re-
spondent has failed and refused to honor the col-
lective-bargaining agreement with respect to em-
ployees of Sumon and refused to bargain by refus-
ing to make fringe benefit payments to the Union
on behalf of the employees of Sumon. Paragraph 5
alleges that, about 28 February 1983, the Respond-
ent interfered with, restrained, and coerced its em-
ployees by a threatened refusal to bargain at the
expiration of the current collective-bargaining
agreement in 1984, if the Union pursued the issue
of single-employer status of Acoustics and Sumon.
With respect to the allegations in paragraph 10
of the complaint, that the Respondent refused to
bargain in violation of Section 8(a)(5) of the Act,
we shall deny the General Counsel's Motion for
Summary Judgment for the following reasons.
For the purposes of this decision, we find, as al-
leged in the complaint, that the Respondent Acous-
tics and Sumon constitutes a single integrated en-
terprise and a single employer.' But that conclu-
' Our finding in this regard, of course, applies only to Acoustics and
Sumon's construction operations within Colorado. The record does not
Continued
1046
ACOUSTICS, INC.
sion is not dispositive herein. For, as noted by the
Supreme Court in South Prairie Construction Co., 2 a
single-employer finding does not necessarily estab-
lish that the employerwide unit is the appropriate
bargaining unit. Indeed, the criteria for finding a
single employer are not the same as those used in
determining the scope of the unit.3 Thus, for the
General Counsel to prevail in contending that the
Respondent violated Section 8(a)(5) of the Act by
not applying contract terms to employees of
Sumon, it must be shown (or alleged without con-
test) that the Union was the exclusive collective-
bargaining representative of those Sumon employ-
ees covered by contract; or that, by virtue of other
factors, the employerwide unit of the Respondent
Acoustics and Sumon is the appropriate bargaining
unit. That is not the case here.4
First, the complaint plainly sets forth that at all
times material Acoustics has functioned as a union
contractor while Sumon has functioned as a non-
union contractor, and that they have utilized two
separate units of employees. The complaint does
not assert that such units are not appropriate; nor
do the factual allegations in the complaint give rise
to such an inference. Further, the complaint asserts
that at all times material a majority of the employ-
ees of Acoustics designated or selected the Union
as their representative. Again, the complaint does
not allege that the employees of Acoustics consti-
tute an inappropriate unit. The clear implication of
the complaint language is that a majority of the
employees of Sumon have not designated the
Union as their representative. s Thus, in order to
find that the Respondent has violated Section
8(a)(5) of the Act as alleged, we would at least in
part have to either ignore or contravene the plain
language of the complaint. Additionally, we find
the allegations pertaining to the Respondent's re-
fusal to meet and bargain or to recognize the
Union as the exclusive bargaining representative to
be ambiguous, inasmuch as it is unclear whether
such allegations are intended to apply with respect
to employees of Acoustics only, or to employees of
reflect the two corporations' operations in States other than Colorado.
See Peter Kiewit Sons' Ca, 231 NLRB 76 fn. 5 (1977).
2 South Prairie Construction Ca z. Operating Engineers Local 627, 425
U.S. 800 (1976), cited (on remand) in Peter Kiewit Sons' Co., above, 231
NLRB 76 (1977).
s Peter Kiewit Sons' Co., above at 77.
4 Our dissenting colleague misperceives the thrust as well as the lan-
guage of South Prairie. After establishing a single employer, "the exist-
ence of a violation under Sec. 8(aX5)" then turns on "whether under Sec-
tion 9 the 'employer unit' [is] the appropriate one for collective-bargain-
ing purposes." (425 U.S. at fn. 1, emphasis added.) As noted above, that
is not the case here.
' Nor can the complaint support a reasonable inference that a majority
of the employees of both Acoustics and Sumon in an appropriate em-
ployerwide unit have designated the Union as their representative for the
purposes of collective bargaining.
both Acoustics and Sumon. Hence, we are unable
to find those violations as alleged in the complaint
without engaging in speculation.
For the reasons set forth above we conclude that
substantial portions of the complaint raise substan-
tial and material issues which are not susceptible to
conclusive findings in this proceeding, but which
may best be resolved at a hearing before a judge.6
Accordingly, we shall deny the General Coun-
sel's Motion for Summary Judgment.
ORDER
The General Counsel's Motion for Summary
Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 27
for further appropriate action.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would grant the
General Counsel's Motion for Summary Judgment.
This is an uncontested case: The Respondent has
not filed an answer to the complaint which issued
22 April 1983, despite the clear warning that if it
failed to do so, all allegations in the complaint
would be deemed admitted to be true. The major-
ity's refusal to grant summary judgment, therefore,
is based solely on the adequacy of the complaint al-
legations. I find those allegations sufficient to sup-
port the finding of a violation of Section 8(a)(5) of
the Act.
As the complaint makes clear at paragraph II(i),
this case involves a dual or double-breasted oper-
ation, where the Respondent is using two groups of
employees to perform construction work: one
union (Acoustics) and one nonunion (Sumon). The
Supreme Court set forth the law in this area in
South Prairie Construction Co. v. Operating Engi-
neers Local 627, 425 U.S. 800 (1976). There, the
Court stated that an 8(a)(5) violation was estab-
lished in a double-breasted operation if the employ-
ers in the union and nonunion companies constitut-
ed a single employer and if the employer unit (i.e.,
the unit of both union and nonunion employees)
constituted an appropriate unit for the purposes of
collective bargaining.
My colleagues agree that the complaint allega-
tions sustain a finding that Acoustics and Sumon
are a single employer. They find, however, that the
complaint does not establish that the unit of Acous-
tics and Sumon employees is appropriate because it
does not allege that the unit of Acoustics employ-
ees and the unit of Sumon employees are inappro-
6 Inasmuch as the remaining complaint allegation is intimately inter-
twined with the unit question, we decline to reach the issue at this time,
but rather include it in our remand herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate; it does not allege that a majority of the
Sumon employees have selected the Union as their
exclusive bargaining representative; and finally, it is
ambiguous because it is unclear whether the refus-
al-to-bargain allegations apply to Acoustics em-
ployees only or to employees of both Acoustics
and Sumon.
The majority's quarrel with the complaint dis-
plays a misunderstanding of South Prairie. The
complaint need not assert that any unit is inappro-
priate. Instead, it must assert that the employerwide
unit is appropriate. My colleagues' argument against
this interpretation of South Prairie stresses the
Court's use of the word "the" when it asserts "the
existence of a violation under Section 8(a)(5) . . .
then turn[s] on whether under Section 9 the 'em-
ployer unit' [is] the appropriate one for collective-
bargaining purposes." (425 U.S. at fn. 1, emphasis
added.) However, by this phrase, the Court simply
means that the finding of a single employer is not
determinative of the unit question, and that there
must be a separate affirmative finding that the em-
ployerwide unit is appropriate.' The complaint
here meets this requirement.
First, it should be noted that, after the complaint
makes the allegations that Acoustics and Sumon
are a single employer and exist as a double-breasted
operation, it refers only to the Respondent (i.e., the
single employer Acoustics-Sumon). There is no am-
biguity anywhere in the complaint in this regard.
After paragraph II(i), the complaint makes refer-
ences only to Acoustics or Sumon in reference to
employees. It states that the Acoustics employees
selected the Union as representative, that the Re-
spondent has failed to honor the collective-bargain-
This is evident from the Court's discussion of whether the Board had
in fact passed on the unit question when it disagreed with the judge's
finding of a single employer. "The Administrative Law Judge's decision
in favor of the Union included a conclusion that the pertinent employees
of Kiewit and South Prairie constituted an appropriate unit under Section
9(b). But that conclusion was, of course, preceded by the the determina-
tion that the two firms were a single employer. In disagreeing on the
'employer' issue, the Board was not compelled to reach the Section 9(b)
question in order to dismiss the complaint." (425 U.S. at fn. 6, emphasis
added.) Further, in disapproving of the court of appeals' deciding the
unit issue rather than remanding the case to the Board to make the initial
unit determination, the Court stated, "Since the selection of an appropri-
ate bargaining unit lies largely within the discretion of the Board . . . we
think the function of the Court of Appeals ended when the Board's error
on the 'employer' issue was 'laid bare."' (Emphasis added; citations omit-
ted.)
ing agreement with respect to Sumon employees
and that the Respondent has refused to pay fringe
benefits to the employees of Sumon. In all other
sections, Acoustics and Sumon are simply referred
to as the Respondent.
The complaint then asserts that the Respondent's
employees (i.e., employees of the single employer,
Acoustics/Sumon) as described in the collective-
bargaining agreement constitute an appropriate
unit. Because this allegation is not answered, we
must deem that the Respondent admits the truth of
it.
While the Respondent might have raised factual
matters supporting a finding that the unit com-
prised of employees of Acoustics and Sumon was
not appropriate, it failed to do so. Accordingly, the
assertion that the unit is appropriate must be ac-
cepted. As discussed earlier, the assertion that the
employerwide unit is appropriate constitutes the af-
firmative unit finding required by South Prairie
Construction Co., above.
Next, the complaint alleges that a majority of
Acoustics employees have selected the Union as
representative. This assertion is necessary because
an 8(a)(5) finding of failure to honor a contract re-
quires a representative with 9(a) status. Of course
the complaint does not allege that the majority of
Sumon employees have separately selected the
Union: Sumon was operated as a nonunion compa-
ny which is the whole point of the charge in this
case.
Finally, the complaint asserts that the Respond-
ent has failed to bargain with the Union, failed to
recognize the Union as the exclusive bargaining
representative of the employees of the Respondent,
and has failed to honor the collective-bargaining
agreement with respect to Sumon employees, in-
cluding refusing to pay these employees fringe ben-
efits.
While the General Counsel might have eased the
reading of such a complex complaint by adding
"Acoustics/Sumon" in parentheses at each refer-
ence to "Respondent," a careful reading of the
complaint shows no ambiguity on this point and es-
tablishes that the employees of Acoustics/Sumon
constitute an appropriate unit.
On these grounds, I would grant the General
Counsel's motion in this uncontested case.
1048