Cosmo Electric Co.

National Labor Relations Board - Board Decisions

Oct 28, 2004

343 N.L.R.B. 380 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 50
380
Cosmo Electric Company and its alter ego Cosmo
Electric Services, a single employer and Interna-
tional Brotherhood of Electrical Workers, Local
60, AFL–CIO. Case 16–CA–23396
October 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and an
amended charge filed by the Union on February 2 and
April 26, 2004, respectively, the General Counsel issued
the complaint on July 30, 2004, against Cosmo Electric
Company and its alter ego Cosmo Electric Services, col-
lectively referred to as the Respondent, alleging that it
has violated Section 8(a)(1) and (5) of the Act. The Re-
spondent failed to file an answer.
On September 1, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On Sep-
tember 8, 2004, 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 Default 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. In addition, the complaint affirmatively stated
that unless an answer was filed by August 13, 2004, all
the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated August 16, 2004, notified the Respondent that
unless an answer was received by August 23, 2004, a
Motion for Default Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.1

1 The General Counsel’s motion indicates that the Respondent may
be involved in bankruptcy proceedings. It is well established that the
institution of bankruptcy proceedings does not deprive the Board of
jurisdiction or authority to entertain and process an unfair labor practice
case to its final disposition. See, e.g., Cardinal Services, 295 NLRB
933 fn. 2 (1989), and cases cited there. Board proceedings fall within
the exception to the automatic stay provisions for proceedings by a
governmental unit to enforce its police or regulatory powers. See id.,
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
About February 2004, the exact date being unknown to
the General Counsel but particularly within the knowl-
edge of the Respondent, Respondent Cosmo Electric
Services (Respondent Services) was established by Re-
spondent Cosmo Electric Company (Respondent Com-
pany) as a subordinate instrument to and a disguised con-
tinuation of Respondent Company.
At all material times, Respondent Company and Re-
spondent Services have been affiliated business enter-
prises with common officers, ownership, directors, man-
agement, and supervision; have shared common premises
and facilities; have provided services for each other; and
have interchanged personnel with each other and have
held themselves out to the public as a single-integrated
business enterprise.
Based on their conduct described above, Respondent
Company and Respondent Services are, and have been at
all material times, alter egos and a single employer
within the meaning of the Act.
At all material times, Respondent Company and Re-
spondent Services, both Texas sole proprietors with a
common office and place of business at 9251 Ridge
Wind, San Antonio, Texas (the Respondent’s facility),
have been engaged in the construction industry as elec-
trical contractors.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, purchased goods and materi-
als valued in excess of $50,000 from other enterprises,
including Consolidated Electrical Distributors, Inc. and
Graybar Electric Company, Inc., both located within the
State of Texas, and both of which received these goods
and materials directly from points outside the State of
Texas.
We find that Respondent Company and Respondent
Services have been employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and that International Brotherhood of Electrical
Workers, Local 60, AFL–CIO, the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the

and cases cited therein; NLRB v. 15th Avenue Iron Works, Inc., 964
F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v. NLRB,
703 F.2d 23 (1st Cir. 1983).
COSMO ELECTRIC CO. 381
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Michelle Bratton Owner
Jesse Bratton Owner
At all material times, the South Texas Chapter, Na-
tional Electrical Contractors Association, Inc. (NECA)
has been an organization composed of various employers
engaged in the electrical industry, one purpose of which
is to represent employer-members in negotiating and
administering collective-bargaining agreements with the
Union.
At all material times, Respondent Company has been
an employer-member of NECA and has authorized
NECA to represent it in negotiating and administering
collective-bargaining agreements with the Union.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
Included: All employees performing electrical work
within the jurisdiction of the Union for the purposes of
collective bargaining in respect to rates of pay, hours of
employment and other conditions of employment.
Excluded: All guards and supervisors as defined in the
Act.
On April 12, 1996, Respondent Company entered into
a “Letter of Assent-A” whereby it agreed to comply with
and be bound by all the provisions contained in the then
current approved labor agreement between the Union and
NECA, and agreed to be bound to such future agree-
ments unless timely notice (90 days prior to the then cur-
rent anniversary date of the applicable approved labor
agreement) was given to NECA and the Union. The
most recent collective-bargaining agreement is effective
from June 2, 2003, to June 6, 2005 (the Agreement).
About April 12, 1996, the Respondent, an employer
engaged in the building and construction industry as de-
scribed above, granted recognition to the Union as the
exclusive collective-bargaining representative of the unit
and since that date the Union has been recognized as the
representative by the Respondent without regard to
whether the majority status of the Union had ever been
established under the provisions of Section 9(a) of the
Act.2

2 The complaint alleges that the Respondent is a construction indus-
try employer and that it granted recognition to the Union without regard
to whether the Union had established majority status. Accordingly, we
find that the relationship was entered into pursuant to Sec. 8(f) of the
About November 26, 2003, Respondent Company un-
timely notified the Union by letter that it was terminating
the Agreement.
The Union, by letters dated December 4, 2003, and
February 2, 2004, requested to bargain with Respondent
Company.
Since about November 26, 2003, the Respondent has
failed and refused to bargain with the Union and has not
responded to the Union’s letters identified above.
Since about November 26, 2003, Respondent Com-
pany unilaterally repudiated the Agreement and refused
to apply the terms and conditions of the Agreement by
failing to deduct employee union dues and by failing to
use the Union’s hiring hall.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment and are man-
datory subjects of collective bargaining.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the limited exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act, and has thereby en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.3

Act and that the Union is therefore the limited 9(a) representative of the
unit employees for the period covered by the contract. See, e.g., A.S.B.
Cloture, Ltd., 313 NLRB 1012 (1994).
3 The complaint also alleges that the Respondent violated Sec.
8(a)(5) and (1) of the Act by failing to make payments to “the Union’s
fringe benefit funds” as required by the Agreement. However, neither
the complaint nor the motion describe what those funds are. The Board
has held that certain types of benefit funds are permissive subjects of
bargaining for which no remedy would be warranted. See, e.g., Finger
Lakes Plumbing & Heating Co., 254 NLRB 1399 (1981) (industry
advancement fund). There is no indication here as to the nature of the
funds involved. In these circumstances, we decline to find that the
Respondent violated the Act by refusing to make contributions to these
unspecified funds. Accordingly, the motion is denied with respect to
this allegation, and the matter is remanded to the Regional Director for
further appropriate action. Nothing herein will require a hearing if, in
the event of an appropriate amendment to the complaint, the Respon-
dent again fails to answer, thereby admitting evidence that would per-
mit the Board to find the alleged violation. In such circumstances, the
General Counsel may renew the motion for default judgment with
respect to the amended complaint allegations. See VMI Cabinets &
Millwork, 340 NLRB 1196 fn. 2 (2003) (default judgment denied as to
allegation that respondent failed to bargain over decision to close busi-
ness); St. Regis Hotel, 339 NLRB 143, 144 fn. 3 (2003) (default judg-
ment denied as to information request for “other matters important to
the Union.”); see also Michigan Inn, 340 NLRB 983, 989 (2003) (com-
plaint not well pleaded if too vague to determine whether a violation
occurred).
Member Walsh notes that although the complaint does not describe
the Union’s fringe benefit funds, it alleges that they are mandatory
subjects of bargaining. By failing to file an answer, the Respondent has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD382
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the
Respondent violated Section 8(a)(5) and (1) of the Act
by repudiating the provisions of its 2003–2005 collec-
tive-bargaining agreement with the Union by failing to
deduct employee union dues and by failing to use the
Union’s hiring hall, we shall order the Respondent to
honor the terms and conditions of that agreement, and
any automatic renewal or extension of it.
In order to remedy the Respondent’s failure to deduct
employee union dues as required by the Agreement, we
shall order the Respondent to deduct and remit union
dues pursuant to valid check-off authorizations that have
not been deducted since November 26, 2003, with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Finally, in order to remedy the Respondent’s failure to
utilize the Union’s hiring hall as required by the Agree-
ment, we shall order the Respondent to offer immediate
and full employment to those applicants who would have
been referred to the Respondent for employment by the
Union were it not for the Respondent’s unlawful con-
duct, and to make them whole for any losses suffered by
reason of the Respondent’s failure to hire them.4 Back-

admitted this complaint allegation. Therefore, Member Walsh would
grant default judgment with respect to the Respondent’s uncontested
failure to make the fund contributions. However, he would leave to
compliance the issue of whether any of the funds are permissive sub-
jects of bargaining for which no remedy would be warranted.
4 We leave to the compliance stage the determination of which, if
any, employees fall into this category. In this regard, we do not now
decide issues concerning the validity of J. E. Brown Electric, 315
NLRB 620 (1994). See concurring opinions in J. E. Brown, and in
Coulter’s Carpet, 338 NLRB 732 (2002). See also dissenting opinions
in M. J. Wood, 325 NLRB 1065, 1068 fn. 9 (1998), and Baker Electric,
317 NLRB 335, 336 fn. 4 (1995).
Contrary to our dissenting colleague, we are not leaving to compli-
ance the fashioning of a remedy. As noted, the remedial order requires
the Respondent to offer employment to those applicants who would
have been referred to the Respondent for employment by the Union
were it not for the Respondent’s unlawful conduct, and to make them
whole for any losses suffered by reason of the Respondent’s failure to
hire them. The only issue left to compliance is the determination of
which, if any, employees fall into this category. It is not uncommon or
inappropriate to leave such issues to compliance.
Member Walsh does not agree that it is appropriate for the Board to
“not now decide issues concerning the validity of J. E. Brown Electric,
315 NLRB 620 (1994).” As the courts have admonished the Board, the
scope of the remedy must be resolved in the unfair labor practice pro-
ceeding and cannot be litigated in compliance. Starcon, Inc. v. NLRB,
176 F.3d 948, 952 (7th Cir. 1999) (“The Board may intend to cut down
the order in compliance proceedings that are the normal sequel to such
orders. But that would be a confusion of scope with compliance. The
scope of the order must be determined before the order is entered, not
pay is to be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, supra. Rein-
statement and backpay issues will be resolved by a fac-
tual inquiry at the compliance stage of the proceeding. J.
E. Brown Electric, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Cosmo Electric Company and its alter ego,
Cosmo Electric Services, a single employer, San Anto-
nio, Texas, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with the International Brotherhood of Electri-
cal Workers, Local 60, AFL–CIO, as the limited exclu-
sive collective-bargaining representative of the employ-
ees in the following unit during the term of its 2003–
2005 collective-bargaining agreement with the Union,
and any automatic renewal or extension of it. The unit
is:
Included: All employees performing electrical work
within the jurisdiction of the Union for the purposes of
collective bargaining in respect to rates of pay, hours of
employment and other conditions of employment.
Excluded: All guards and supervisors as defined in the
Act.
(b) Repudiating the terms and conditions of the 2003–
2005 collective-bargaining agreement, and any automatic
renewal or extension of it, including by failing to deduct
employee union dues and failing to use the Union’s hir-
ing hall.
(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.

afterwards.”); Ultrasystems Western Constructors, Inc. v. NLRB, 18
F.3d 251, 259 (4th Cir. 1994) (“[I]t would not be consistent with the
Act for the Board to enter an order finding only that the employer vio-
lated the Act and reserving for later determination, in a compliance
proceeding, the nature of the remedy to be imposed.”)
Unlike his colleagues, and in accordance with the courts’ directive,
Member Walsh would determine the scope of the order now. He would
do so by reaffirming J. E. Brown, noting that its reinstatement and
make-whole remedy has been repeatedly provided by the Board, with
court approval, in hiring hall repudiation cases. E.g., M. J. Wood &
Associates, Inc., 325 NLRB 1065, 1068 (1998); Baker Electric, 317
NLRB 335, 336 (1995), enfd. mem. 105 F.3d 647 (4th Cir. 1997), cert.
denied 522 U.S. 1046 (1998); Williams Pipeline Co., 315 NLRB 630,
633 (1994). Indeed, as recently as September 30, 2004, the Board
unanimously provided the J. E. Brown remedy in Energy Services
International, 343 NLRB No. 6, slip op. at 4 (2004).
COSMO ELECTRIC CO. 383
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Honor and comply with the terms and conditions of
the 2003–2005 collective-bargaining agreement, and any
automatic renewal or extension of it, including by de-
ducting employee union dues for employees who have
executed valid dues-checkoff authorizations and by util-
izing the Union’s hiring hall.
(b) Deduct all dues for employees who have executed
valid dues-checkoff authorizations and remit them to the
Union that have not been deducted and remitted since
November 26, 2003, as required by the 2003–2005 col-
lective-bargaining agreement, and reimburse the Union
for its failure to do so, with interest as set forth in the
remedy section of this decision.
(c) Offer immediate and full employment to those ap-
plicants who would have been referred to the Respondent
for employment by the Union were it not for the Respon-
dent’s unlawful conduct, and make them whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s failure to hire them, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in San Antonio, Texas, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 16,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to all current employees and former employees employed
by the Respondent at any time since November 26, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the International Brotherhood of
Electrical Workers, Local 60, AFL–CIO, as the limited
exclusive collective-bargaining representative of the em-
ployees in the following unit during the term of our
2003–2005 collective-bargaining agreement with the
Union, and any automatic renewal or extension of it.
The unit is:
Included: All employees performing electrical work
within the jurisdiction of the Union for the purposes of
collective bargaining in respect to rates of pay, hours of
employment and other conditions of employment.
Excluded: All guards and supervisors as defined in the
Act.
WE WILL NOT repudiate the terms and conditions of
our 2003–2005 collective-bargaining agreement with the
Union, and any automatic renewal or extension of it,
including by failing to deduct employee union dues and
failing to use the Union’s hiring hall.
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 honor the terms of our 2003–2005 collective-
bargaining agreement with the Union and any automatic
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD384
renewal or extension of it, including by deducting em-
ployee union dues and using the Union’s hiring hall.
WE WILL deduct all dues for employees who have exe-
cuted valid dues-checkoff authorizations and remit them
to the Union, that have not been deducted and remitted
since November 26, 2003, as required by our 2003–2005
collective-bargaining agreement with the Union, and
reimburse the Union for our failure to do so, with inter-
est.
WE WILL offer immediate and full employment to
those applicants who would have been referred to us for
employment by the Union were it not for our unlawful
conduct, and make them whole for any loss of earnings
and other benefits suffered as a result of our failure to
hire them, with interest.
COSMO ELECTRIC COMPANY AND ITS ALTER
EGO, COSMO ELECTRIC SERVICES, A SINGLE
EMPLOYER