Bakken Electric, Inc

National Labor Relations Board - Board Decisions

Apr 11, 1989

293 N.L.R.B. 644 (N.L.R.B. 1989)

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bakken Electric, Inc and International Brotherhood
of Electrical Workers, Local No 292, AFL-
CIO
Fowser Electric Co and International Brotherhood
of Electrical Workers, Local No 292, AFL-
CIO
North Town Electric , Inc and International Broth-
erhood of Electrical Workers, Local No 110,
AFL-CIO and International Brotherhood of
Electrical Workers, Local 292 , AFL-CIO
Cases 18-CA-8611-1(E), 18-CA-8611-2(E),
18-CA-8610-2(E), and 18-CA-8611-4(E)
April 11, 1989
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 23, 1988, Administrative Law
Judge David S Davidson issued the attached sup
plemental decision Applicant North Town Elec
tric, Inc filed exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the applications of the
Applicants, Bakken Electric, Inc, Fowser Electric
Co, and North Town Electric, Inc, Minneapolis,
Minnesota, for attorneys' fees and expenses under
the Equal Access to Justice Act are denied
Florence I Brammer Esq, for the General Counsel
Margaret A Joyce, of New Brighton, Minnesota for
North Town Electric Inc
Alan D Bakken of Plymouth Minnesota for Bakken
Electric, Inc
Dan L Fowser, of Long Lake, Minnesota for Fowser
Electric Co
SUPPLEMENTAL DECISION
Equal Access to Justice Act
DAVID S DAVIDSON, Administrative Law Judge On
July 29 1988, the National Labor Relations Board issued
its decision in Stack Electric, 290 NLRB 575 dismissing
the consolidated complaint in its entirety North Town
Electric Inc (North Town), Bakken Electric Inc
(Bakken) and Fowser Electric Co (Fowser) were each
Respondents in that proceeding Thereafter each filed
timely applications for attorneys fees and expenses
which have been referred to me for appropriate action 1
On September 26, 1988 counsel for the General Counsel
filed motions to dismiss each of the applications No re
sponses to the motions to dismiss have been received
Because all three applications arise out of the same con
solidated unfair labor practice proceeding and raise relat
ed issues, I have consolidated them for purposes of this
supplemental decision
The principal issue raised by each of the motions to
dismiss is whether the position of the General Counsel
was substantially justified Because I find that her pose
tion was substantially justified, I find it unnecessary to
consider other grounds advanced by the General Court
sel in support of the motions to dismiss and will grant
them
Section 504 of the Equal Access to Justice Act pro
vides for the award of fees and expenses incurred in an
adversary adjudication to a qualified prevailing party
unless the adjudicative officer of the agency finds that
the position of the agency was substantially justified or
that special circumstances make an award unjust
In the underlying unfair labor practice proceeding the
principal issues were
whether, by signing Letters of Assent authorizing
multiemployer associations to act as their collective
bargaining representatives, Respondents became ob
ligated to adhere to successive collective bargaining
agreements negotiated between the Associations and
the Unions and, if so, whether Respondents later
unlawfully repudiated those agreements
Respondents contested the Board's assertion of junsdic
tion over them and raised a number of affirmative de
fenses
In my decision, dated August 30 1985 I found that
Fowser s employees had never become part of the multi
employer unit because there was no showing that Local
292 ever represented the employees of Fowser after
Fowser signed the letter of assent and concluded that the
Board should not assert jurisdiction over Fowser As to
North Town and Bakken I found that their employees
had become part of the multiemployer units and that
they violated Section 8(a)(5) and (1) of the Act by repu
diating the association agreements during their terms
On exceptions the Board found that the delegation of
bargaining authority contained in the letters of assent
was sufficient to warrant assertion of jurisdiction over all
the Respondents because it indicated the intent of each
individual Respondent to be bound by group rather than
individual action Having asserted jurisidiction however,
the Board concluded that under its recent Deklawa2 de
' The Fowser application was filed by Dan Fowser Electric Inc and
signed by Dan Fowser president It alleges that Dan Fowser Electric
Inc is a Minnesota corporation For the purpose of disposing of the
motion to dismiss I have disregarded the difference between the corpora
tion filing the application and the individual proprietorship which was
the Respondent in the unfair labor practice proceeding
2 John Deklawa & Sons 282 NLRB 1375 (1987)
293 NLRB No 80
BAKKEN ELECTRIC
cision the individual employer units had not become
merged into the multiemployer units and that each of the
individual units consisted of no more than a single em
ployee so that none of the Respondents was under a
statutory duty to bargain and they could repudiate their
agreements at any time
With respect to North Town and Bakken, I found
ment in the allegations of the complaint pursuant to
Board decisions which were controlling at that time 3 In
reversing my decision the Board did not find that I was
mistaken in my application of existing precedents or that
the facts failed to support the decision Rather on the
basis of Board policy formulated and announced after the
issuance of my decision and after the General Counsel
had filed her exceptions to it, the Board decided no
longer to follow the precedents on which the General
Counsel had relied in issuing the complaint and in litigat
ing it Because the General Counsels position with re
spect to North Town and Bakken was supported by the
facts and existing Board precedents at all times through
the final submission of the case to the Board, I find that
the position of the General Counsel with respect to
North Town and Bakken was substantially justified at all
material times
With respect to Fowser, the Board rejected my con
clusion with respect to jurisdiction and asserted over
Fowser in accord with the position taken by the General
Counsel Although the Board agreed with my conclusion
that Fowser's employees had not become part of the
multiemployer unit it relied on its new Deklawa policy
and not on the application of the prior precedents on
which I had relied As in the cases of North Town and
Bakken, the issue is whether the position of the General
Counsel was substantially justified under Board prece
dents existing at the time the complaint issued and the
case was litigated
In the unfair labor practice proceeding and in its
motion to dismiss the General Counsel has contended
that under Board precedents then existing that once
Fowser executed the letter of assent, its employees were
immediately merged into the multiemployer unit and that
further inquiry into majority status of Fowser s employ
ees was unwarranted Although I rejected that conten
tion in the underlying proceeding under the precedents
relied on by the General Counsel, the issue here is not
whether my decision was correct but whether the pose
tion of the General Counsel at that time was substantially
justified
In Wayne Electric, 226 NLRB 409 (1976), after reciting
that the respondent had signed a letter of assent similar
9 In two respects I agreed with contentions of North Town relating to
the effectiveness of its notice to terminate S NECA s authority to repre
sent North Town in negotiations with Local 110 However I do not find
that these were significant and discrete portions of the proceeding within
the meaning of Sec 102 144 of the Board s Rules and Regulations In any
event I would find that although I reject the General Counsels conten
Mons in these two respects her position with respect to them was also
substantially justified
645
to those at issue in this case , the Board stated, The
Board has held that by signing such letter of assent an
employer is bound by the multiemployer contract and
becomes a member of the multiemployer bargaining
group In National Electrical Contractors Assn (Central
New Mexico Chapter), 152 NLRB 1604 (1965) the Board
clarified a multiemployer unit finding that it included
the employees of all employers who had filed letters of
assent similar to those at issue in this case In National
Electrical Contractor Assn (Northern Nevada Chapter),
131 NLRB 550 (1961), the Board directed an election in
a multiemployer unit again including the employees of
employers who had signed a similar letter of assent
More recently in Vincent Electric Co, 281 NLRB 903
(1986), the Board stated [w]e find this case is controlled
by longstanding Board precedent that signers of an
IBEW Letter of Assent A become part of a multiem
ployer bargaining group
In my decision I did not rely on these or similar prece
dents because in my view they failed to deal with the
question of whether, in addition to a showing that the
employer had signed a letter of assent, it was necessary
for the General Counsel to show that the union repre
sented the employees of the single signatory employer at
some point before they could become merged into a mul
tiemployer unit with a 9(a) agreement In the case on
which the General Counsel relied, the facts either
showed that the unions represented the employees of the
single employers or simply failed to disclose the unions
representative status Because none of the cases squarely
held that such a merger took place even when the union
did not represent the signatory employers employees
prior to merger, I found more persuasive two authorities
to the contrary a concurring opinion of Board Member
Dennis in C I M Mechanical Co, 275 NLRB 685 (1985)
and Baton Rouge Building Trades Council v Schafer Con
struction Co 657 F 2d 806 (5th Cir 1981)
Although I found these two authorities persuasive
until my decision and indeed even up to the time of the
Vincent Electric decision which issued after my decision
and while Stack and Deklawa were pending before the
Board, only one Board member had taken the position
expressed in C I M Mechanical and the Fifth Circuit had
taken that position in a non Board case without the bene
fit of a prior Board interpretation 4 Given these circum
stances I conclude that when the General Counsel
issued the complaint when the hearing took place and
when the General Counsel filed exceptions to my initial
decision there was substantial precedent supporting the
position of the General Counsel and that the position of
the General Counsel was substantially justified
4Indeed at the time briefs were submitted to me in the unfair labor
practice case C I M Mechanical had not been decided by the Board and
there was no Board precedent rejecting the position of the General
Counsel
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly having found that the position of the
General Counsel was substantially justified with respect
to all three applicants , I issue the following recommend-
ed5
ORDER
The General Counsels motions to dismiss are granted
and the applications of North Town, Bakken, and
Fowser for attorneys fees and expenses are denied
5If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all pur
Order shall as provided in Sec 102 48 of the Rules be adopted by the poses