Allen Carr Electrical Contracting Co.

National Labor Relations Board - Board Decisions

Dec 23, 1980

253 N.L.R.B. 947 (N.L.R.B. 1980)

ALLEN CARR ELECTRICAL CONTRACTING CO.
Allen Carr Electrical Contracting Co., Inc. and
Local Union 501, International Brotherhood of
Electrical Workers, AFL-CIO. Case 2-CA-
17250
December 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND ZIMMERMAN
Upon a charge filed on May 16, 1980, by Local
Union 501, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Union, and
duly served on Allen Carr Electrical Contracting
Co., Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 2, issued a com-
plaint and notice of hearing on June 26, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding. Re-
spondent failed to file an answer to the complaint.
With respect to the unfair labor practices, the
complaint alleges in subtance that Respondent
failed and refused to make periodic contributions
on behalf of its employees, to the various fringe
benefit funds maintained and participated in by the
Union as provided for by terms of the current col-
lective-bargaining agreement between Respondent
and the Union; refused to furnish relevant and nec-
essary payroll information to the Union; withdrew
recognition of the Union; and refused to recognize
and bargain with the Union.
On October 3, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 10,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has filed no response to the Notice To Show Cause
and, accordingly, the allegations of the Motion for
Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
253 NLRB No. 131
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically 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 explained 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 to
the contrary is shown.
The complaint and notice of hearing served on
Respondent on June 26, 1980, specifically stated
that unless an answer to the complaint was filed
within 10 days from the service thereof "all of the
allegations contained in the complaint shall be
deemed to be admitted to be true and shall be so
found by the Board." Further, on July 17, 1980, in
a letter sent by regular mail, and again on August
12, 1980, in a letter sent by both regular and certi-
fied mail and mailed to both of Respondent's
known addresses, Respondent was advised that an
answer to the complaint had not been received,
and that summary judgment would be sought
unless an answer to the complaint was filed by
August 19, 1980. On or about September 8, 1980,
the aforesaid return receipts mailed to both of Re-
spondent's known addresses were returned to
Region 2 by the Post Office and were stamped
"unclaimed." As noted above, Respondent has not
filed an answer to the complaint, nor did it respond
to the Notice To Show Cause. No good cause to
the contrary having been shown, in accordance
with the rule set forth above, the allegations of the
complaint are deemed to be admitted and are found
to be true. Accordingly, we grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Allen Carr Electrical Contracting Co., Inc., is,
and has been at all times material herein, a New
York corporation, with an office and place of busi-
ness in White Plains, New York, herein called its
facility, and places of business at various jobsites
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throughout the State of New York. Respondent is
engaged in business as an electrical contractor in
the building and construction industry. During the
12 months preceding the issuance of the complaint,
Respondent, in the course and conduct of its busi-
ness operations, purchased and received at its facili-
ty and at its other places of business in the State of
New York products, goods, and materials valued in
excess of $50,000 from other enterprises, including
Garfield Wolar Electrical Corp., located within the
State of New York, each of which other enter-
prises had received the said products, goods, and
materials directly from points outside the State of
New York.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 501, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time electricians
and electrician apprentices employed by Re-
spondent, exclusive of all other employees,
guards and supervisors as defined in Section
2(11) of the Act.
At all times material herein, a majority of the
employees in the above-described unit have desig-
nated or selected the Union as their representative
for the purposes of collective bargaining with Re-
spondent.
B. The Request To Bargain and Respondent's
Refusal
The collective-bargaining agreement in effect be-
tween the Union and Respondent for the period
from May 28, 1977, to May 30, 1980, provided,
inter alia, that Respondent make periodic contribu-
tions on behalf of its employees in the above-de-
scribed unit to various fringe benefit funds main-
tained or participated in by the Union. Since on or
about November 16, 1979, Respondent has failed
and refused to make such periodic contributions for
said employees.
Since on or about April 25, 1980, Respondent
has refused to allow a union auditor to examine
Respondent's payroll records and has thereafter
failed and refused to furnish the Union with payroll
information regarding certain employees in the
above-described unit.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has withdrawn its recognition of
the Union and has refused to bargain collectively
with the Union as the exclusive representative of
the employees in the appropriate unit, and that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We have found that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to
make periodic contributions to various fringe bene-
fit funds maintained or participated in by the Union
including, inter alia, the Joint Apprenticeship and
Training Fund, the National Electrical Benefit
Fund, the National Electrical Industry Fund, the
Vacation Holiday Fund, the Welfare Fund, the
Pension Fund, and the Security Benefit Fund, and
by refusing to allow a union auditor to examine its
payroll records and thereafter refusing to furnish
the Union with certain payroll information. In
order to dissipate the effect of these unfair labor
practices, we shall order Respondent to make
whole its employees by paying the contributions to
the aforementioned various fringe benefit funds
which should have been made pursuant to the
terms of their written agreement, retroactive to
November 16, 1979,1 and to allow a union auditor
' Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding fr the addition of interest at a fixed rate on unlawfull)
Continued
948
AI.I.LN CARR FlI.ECTRICAL CONTRACING CO.
to examine its payroll records to gather informa-
tion.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Allen Carr Electrical Contracting Co., Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local Union 501, International Brotherhood
of Electrical Workers, AF. -CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time electricians
and electrician apprentices employed by Respond-
ent, exclusive of all other employees, guards, and
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all employees
in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By failing and refusing to make periodic con-
tributions on behalf of its employees in the above-
described unit to various fringe benefit funds main-
tained or participated in by the Union, refusing to
allow a union auditor to examine its payroll re-
cords to gather certain information and thereafter
refusing to furnish certain payroll information re-
quested by the Union, and, by its actions, with-
drawing recognition of the Union, Respondent has
refused to bargain collectively with the above-
named labor organization as the exclusive bargain-
ing representative of all the employees of Respond-
ent in the appropriate unit. Respondent has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
withheld fund payments. We leave to the compliance stage the question
whether Respondent Allen Carr Electrical Contracting Co Iinc. must
pay any additional amounts into the benefit funds i order to satisfy our
"make whole" remedy These additional amounts may be determined, de-
pending on the circumstances of each case, by reference to provisions in
the documents governing the funds at issue and, where there are no gos-
erning provisions. to evidence of loss directly attributable to the unlawful
withholding action, which might include the loss of return on in llestment
of the portion of funds withheld, additional administrative costs. ctc , but
not collateral losses errvweathrr Optical Companiv. 240 NLRB 1213
(1979)
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Allen Carr Electrical Contracting Co., Inc., White
Plains, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
Union 501. International Brotherhood of Electrical
Workers, AFL-CIO, by failing and refusing to
make periodic contributions on behalf of its em-
ployees in the above-described unit to various
fringe benefit funds maintained or participated in
by the Union, refusing to allow a union auditor to
examine its payroll records to gather certain infor-
mation and thereafter refusing to furnish certain
payroll information requested by the Union. and,
by its actions, withdrawing recognition of the
Union and its bargaining obligation to the Union
with respect to said employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make whole its employees by making contri-
butions into the various fringe benefit funds in the
manner set forth in the section of this Decision en-
titled "The Remedy."
(c) Allow a union auditor to examine its payroll
records to gather information and to, thereafter,
furnish certain payroll information requested by the
Union.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, 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 facility in White Plains, New York,
and at its places of business at various jobsites
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throughout the State of New York copies of the at-
tached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 2, after being duly signed by Re-
spondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Local Union 501, International Brother-
hood of Electrical Workers, AFL-CIO, by
failing and refusing to make periodic contribu-
tions on behalf of its employees in the unit de-
scribed below to various fringe benefit funds
maintained or participated in by the Union, by
refusing to allow a union auditor to examine
our payroll records to gather certain informa-
tion and thereafter refusing to furnish certain
payroll information requested by the Union,
and by withdrawing recognition of the Union
and our bargaining obligation to the Union
with respect to said employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time electri-
cians and electrician apprentices employed
by Respondent, exclusive of all other em-
ployees, guards, and supervisors as defined
in Section 2(11) of the Act.
WE WILL make our employees whole by
paying to the various fringe benefit funds the
contributions which should have been made
pursuant to the terms of our written agreement
with the above-named Union.
WE WILL allow a union auditor to examine
our payroll records to gather information and
to, thereafter, furnish to the Union certain pay-
roll information requested by the Union.
ALLEN CARR ELECTRICAL CON-
TRACTING Co., INC.
950