Centaur Electric

National Labor Relations Board - Board Decisions

Aug 9, 1991

303 N.L.R.B. 1047 (N.L.R.B. 1991)

1047
303 NLRB No. 162
CENTAUR ELECTRIC
1 Prior to May 15, 1986, the Respondent was a Michigan corporation. On
May 15, 1986, the Respondent was dissolved as a corporate entity by oper-
ation of law for failure to file annual reports and has since continued to oper-
ate as a sole proprietorship doing business as Centaur Electric.
Douglas Scott, a sole proprietor d/b/a Centaur Elec-
tric a/k/a Centaur Electric Incorporated and
Local 58, International Brotherhood of Elec-
trical Workers, AFL–CIO. Case 7–CA–31512
August 9, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on February 11,
1991, the General Counsel of the National Labor Rela-
tions Board issued a complaint on March 28, 1991,
against Centaur Electric, the Respondent, alleging that
it has violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Although properly served copies
of the charge and complaint, the Respondent has failed
to file an answer.
On May 20, 1991, the General Counsel filed a Mo-
tion for Default Judgment (Motion for Summary Judg-
ment). On May 23, 1991, the Board issued an order
transferring the proceeding 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 delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14
days from service of the complaint, unless good cause
is shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all the allegations
in the Complaint shall be deemed to be admitted true
and may be so found by the Board.’’ Further, the un-
disputed allegations in the Motion for Summary Judg-
ment disclose that the Regional attorney, by letter
dated April 19, 1991, notified the Respondent that un-
less an answer was received by May 3, 1991, a Motion
for Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a sole proprietorship,1 engages in
the nonretail building and construction industry at its
facility in Warren, Michigan. On June 27, 1979, the
Respondent signed a Letter of Assent authorizing
Southeastern Michigan Chapter, NECA, Inc. (NECA)
as its collective-bargaining representative for all mat-
ters contained in or pertaining to the current labor
agreement between NECA and the Union, which cur-
rent agreement is effective by its terms from June 7,
1989, to June 7, 1992. The Respondent thereby indi-
cated an intent to engage in group bargaining. The em-
ployers who are members of or who have authorized
NECA to be their bargaining agent annually purchase
goods and materials valued in excess of $50,000 from
points located outside the State of Michigan and cause
the goods to be shipped to their Michigan locations.
We find that the Respondent is, by virtue of its asso-
ciation with NECA, an employer engaged in commerce
within the meaning 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
Since 1979, the Respondent has not terminated its
authorization to NECA to act as its collective-bar-
gaining representative. The Union, by virtue of Section
8(f) of the Act, is the limited exclusive collective-bar-
gaining representative of the Respondent’s employees
in the following unit of employees, which unit is ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees em-
ployed as electricians within the jurisdiction of
the Union employed by the Respondent out of its
Warren place of business, but excluding office
clerical employees, guards and supervisors as de-
fined in the Act.
The Respondent has recognized the Union as the ex-
clusive bargaining representative of its employees in
the above-described unit and such recognition has been
embodied in a series of collective-bargaining agree-
ments, the most recent of which is by its terms effec-
tive from June 7, 1989, until June 7, 1992.
A. Unilateral Modifications in the Current
Collective-Bargaining Agreement
The collective-bargaining agreement described above
provided, inter alia, for the payment of certain wages
to unit employees; remittance to the Union of all union
dues and fees properly deducted from the pay of unit
employees; the filing of certain compliance certificate
insurance reports; and the making of National Elec-
trical Benefit Fund contributions, Electrical Workers’
Insurance Fund contributions, Vacation Fund contribu-
tions, Supplemental Pension Plan contributions, Sup-
plemental Unemployment Benefit Plan contributions,
Electrical Training Trust Fund contributions, and An-
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The complaint also alleges an unlawful failure to make contributions to the
National Electrical Industry Fund. The complaint gives no further information
concerning this fund. On its face, the National Electric Industry Fund appears
to be an industry advancement fund, and in the absence of evidence to the
contrary, we shall consider it as such. The Board has held that an industry
advancement fund is not a mandatory subject of bargaining. Scott Lee
Guttering Co., 295 NLRB 497 fn. 3 (1989). The Respondent’s failure to make
the contributions, therefore, does not violate Sec. 8(a)(5) of the Act. Thus, the
Respondent is not required by our Order to make contributions to this fund.
nuity Fund contributions on behalf of unit employees,
all of which constitute mandatory subjects of bar-
gaining.
Since August 11, 1990, the Respondent, without
prior notice to and/or bargaining with the Union, has
failed to make the payments, contributions, and reports
required under the collective-bargaining agreement.2
We find that the Respondent’s conduct constitutes a
unilateral modification of the collective-bargaining
agreement without complying with the provisions of
Section 8(d) of the Act. We conclude that the Re-
spondent, therefore, refused to bargain collectively
with the representative of its employees in violation of
Section 8(a)(5) and (1) of the Act.
B. The Request for Information
By letter dated January 14, 1991, the Union re-
quested certain information from the Respondent. In its
letter, the Union stated that it is investigating the ex-
tent to which union companies are operating nonunion
in violation of the collective-bargaining agreement. It
further stated that its records showed that the Respond-
ent had not paid fringe benefits for its employees since
December 1, 1989, and that the Union was, therefore,
unable to determine if the Respondent’s employees
were receiving the proper wage and fringe benefits in
accordance with the collective-bargaining agreement.
The letter ended with a request for the Respondent to
respond to an enclosed questionnaire concerning these
issues.
The information requested in the Union’s January
14, 1991 letter is necessary for, and relevant to, the
Union’s performance of its function as the exclusive
collective-bargaining representative of the employees
in the appropriate unit. Since January 14, 1991, the
Respondent has failed and refused to furnish the infor-
mation requested by the Union in its letter of January
14, 1991.
We find that the Respondent’s conduct constitutes
an unlawful refusal to bargain collectively with the
representative of its employees in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By unilaterally and without notice to or bar-
gaining with the Union ceasing to pay certain wages
to employees; to remit to the Union all union dues and
fees properly deducted from unit employees’ pay; to
file certain compliance certificate insurance reports,
and to make National Electrical Benefit Fund contribu-
tions, Electrical Workers’ Insurance Fund contribu-
tions, Vacation Fund contributions, Supplemental Pen-
sion Plan contributions, Supplemental Unemployment
Benefit Plan contributions, Electrical Training Trust
Fund contributions, and Annuity Fund contributions,
all as provided in the collective-bargaining agreement,
the Respondent has unilaterally modified the collec-
tive-bargaining agreement within the meaning of Sec-
tion 8(d) of the Act and thereby has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
2. By refusing during the term of its collective-bar-
gaining agreement with the Union, to furnish the
Union with information that is necessary and relevant
to its role as the exclusive collective-bargaining rep-
resentative of the employees in the appropriate unit,
the Respondent has engaged in unfair labor practices
affecting 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 engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The Respondent having unlawfully modified the col-
lective-bargaining agreement effective from June 7,
1989, to June 7, 1992, we shall order the Respondent
to implement and adhere to those provisions of the
agreement with which it failed to comply. We shall
order the Respondent to make whole all employees in
the unit for any loss of earnings resulting from the Re-
spondent’s misconduct as prescribed in Ogle Protec-
tion Service, 183 NLRB 682 (1970), with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). Additional
amounts shall be paid into employee benefit funds as
provided in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). We also shall order the Re-
spondent to make all employees whole for any loss of
pension plan credits or benefits, and for any medical
expenses incurred, resulting from the Respondent’s
failure to implement the terms of the agreement. Kraft
Plumbing & Heating, 252 NLRB 891 (1980). We shall
further order the Respondent to remit to the Union all
the union dues and fees owed for those unit employees
who had authorized the Respondent to deduct and
remit them to the Union pursuant to the parties’ collec-
tive-bargaining agreement, with interest as computed
under New Horizons for the Retarded, supra.
The Respondent having unlawfully refused to fur-
nish certain information requested by the Union, we
will order the Respondent to provide, on request, the
1049CENTAUR ELECTRIC
3 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
information requested in the Union’s letter of January
14, 1991.
ORDER
The National Labor Relations Board orders that the
Respondent, Douglas Scott, a sole proprietor d/b/a
Centaur Electric a/k/a Centaur Electric Incorporated,
Warren, Michigan, his agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to abide by and adhere to its collective-
bargaining agreement with Local 58, International
Brotherhood of Electrical Workers, AFL–CIO by uni-
laterally failing to pay certain wages to unit employ-
ees, to remit all union dues and fees properly deducted
from unit employees’ pay, to file insurance reports,
and to make contributions to the Union’s fringe benefit
funds, as provided for in the collective-bargaining
agreement.
(b) Refusing, during the term of the collective-bar-
gaining agreement with the Union, to furnish the
Union, on request, information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the unit employees.
(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) Abide by and adhere to its collective-bargaining
agreement with the Union, by paying certain wages to
unit employees, remitting all union dues and fees prop-
erly deducted from unit employees’ pay, filing insur-
ance reports, and making contributions to the Union’s
fringe benefit funds. The appropriate unit is:
All full-time and regular part-time employees em-
ployed as electricians within the jurisdiction of
the Union employed by the Respondent out of its
Warren place of business, but excluding office
clerical employees, guards and supervisors as de-
fined in the Act.
(b) Make unit employees whole for any losses they
may have suffered as a result of the Respondent’s fail-
ure to abide by the collective-bargaining agreement
which expires on June 7, 1992, as prescribed in the
remedy section of the Decision and Order.
(c) Remit to the Union all the union dues and fees
properly deducted from the pay of unit employees.
(d) On request, furnish the Union with the informa-
tion sought by the Union in its letter of January 14,
1991, as well as any other information requested that
is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees.
(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.
(f) Post at its facility in Warren, Michigan, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 7, 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.
(g) 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 I
violated the National Labor Relations Act and has or-
dered me to post and abide by this notice.
I WILL NOT refuse to abide by and adhere to our col-
lective-bargaining agreement with Local 58, Inter-
national Brotherhood of Electrical Workers, AFL–CIO
by unilaterally failing to pay certain wages to unit em-
ployees, to remit all union dues and fees properly de-
ducted from unit employees’ pay, to file insurance re-
ports, and to make contributions to the Union’s fringe
benefit funds, as provided for in the collective-bar-
gaining agreement.
I WILL NOT refuse to furnish the Union, on request,
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.
I 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.
I WILL abide by and adhere to our collective-bar-
gaining agreement with the Union by paying certain
wages to unit employees, remitting all union dues and
fees properly deducted from unit employees’ pay, fil-
ing insurance reports, and making contributions to the
Union’s fringe benefit funds. The appropriate unit is:
All full-time and regular part-time employees em-
ployed as electricians within the jurisdiction of
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union employed by Centaur Electric, Inc., out
of its Warren place of business, but excluding of-
fice clerical employees, guards and supervisors as
defined in the Act.
I WILL make unit employees whole for losses they
may have suffered from our failure to abide by the col-
lective-bargaining agreement which expires on June 7,
1992.
I WILL remit to the Union all union dues and fees
properly deducted from unit employees’ pay.
I WILL, on request, furnish the Union with the infor-
mation sought by the Union in its letter to us dated
January 14, 1991, as well as any other information re-
quested that is relevant and necessary to its role as the
exlcusive bargaining representative of the unit employ-
ees.
DOUGLAS SCOTT, A SOLE PROPRIETOR
D/B/A CENTAUR ELECTRIC A/K/A CEN-
TAUR ELECTRIC INCORPORATED