Fitzpatrick Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 739 (N.L.R.B. 1979)

FITZPATRICK ELECTRIC. INC.
Fitzpatrick Electric, Inc. and International Brother-
hood of Electrical Workers, Local No. 22, affiliated
with International Brotherhood of Electrical Work-
ers. Case 17-CA-8337
June 4, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On January 23, 1979, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
The Administrative Law Judge, in his recommend-
ed Order, applied the payment of interest to the loss
of both wages and benefits, including such benefits as
health and welfare funds and pension funds provided
under the contract with the Union which Respondent
had repudiated. With respect to the payment of inter-
est regarding employee benefit funds, however, the
Board has stated that:
[B]ecause the provisions of employee benefit
fund agreements are variable and complex. the
Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a
' We note that the Administrative Law Judge, in the remedy section of his
Decision, inadvertently ordered that backpay he computed in accordance
with the formula set forth in F W. Woolworrh Compan, 90 NLRB 289
(1950). That formula is applicable only in circumstances involving computa-
tion of interim earnings. Ogle Proteclion Service, Inc., 183 NLRB 682 (1970).
Such is not the case here, and accordingly the Woolorth formula should not
be used.
On February 22, 1979, Respondent filed with the Board an affidavit which
stated that a statement of intent to dissolve Respondent and articles of disso-
lution had been filed with the Secretary of State of the State of Nebraska
contemporaneous with, and subsequent to. the issuance of the Administra-
tive Law Judge's Decision.
In light of the decrease in Respondent's employee complement from the
time the violation herein was committed on May 15. 1978, to the time of the
hearin and thereafter (as reflected in the Acministrative Law Judge's Deci-
sion), and in light of the uncertain status of Respondent's business as re-
flected in the assertions in its later filed affidavit, we shall amend the Order to
require that copies of the attached notice marked "Appendix' also he mailed
to all those employees employed as of May 15. 1978. the date of the unfair
labor practice. If Repondent has in fact dissolved, any other remedial issues
arising from that dissolution may be appropriately handled In the compli-
ance stage of these proceedings.
While the Administrative Law Judge entered a broad cease-and desist
order. a narrow cease-and-desist order is more appropriate here. and his
recommended Order is revised to reflect this modficatin
fixed rate on unlawfully withheld fund pay-
ments. We leave to the compliance stage the
question whether Respondent must pay any ad-
ditional amounts into the health and welfare
trust fund in order to satisfy our "make whole"
remedy. These additional amounts may be deter-
mined, depending upon the circumstances of
each case, by reference to provisions in the docu-
ments governing the fund and, if there are no
governing provisions, by evidence of any loss di-
rectly attributable to the unlawful withholding
action, which might include the loss of return on
investment of the portion of funds withheld, ad-
ditional administrative costs, etc., but not collat-
eral losses. [Inland Cities. Inc.. 241 NLRB 374
fn. 2 (1979); Mern, weather Optical Company. 240
NLRB 1213 (1979). i
Consequently. we shall amend the Order to provide
payment of interest at this juncture only upon loss of
wages and upon union dues which Respondent fiiled
to withhold from employee wages in violation of the
collective-bargaining agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent.
Fitzpatrick Electric, Inc., Omaha, Nebraska, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set tforth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 1(d):
"(d) In any like or related manner interfering with.
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection
as guaranteed by Section 7 of the Act. or to refrain
from any or all such activities."
2. Substitute the following for paragraph 2(c):
"(c) Make such health, welfare, pension. and other
payments on behalf of those employees in the above
unit for whom such contributions would have contin-
ued to be made had the Respondent not unlaufullk
repudiated the above collective-bargaining agree-
ment. and make the employees whole for any loss of
wages and berefits incurred as heretofore discussed
and with interest on lost wages and nonwithheld
union dues in the manner set forth in Florida Steel
Corporation, 231 NILRB 651 (1977)."
242 NLRB No. 109
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Substitute the following for paragraph 2(e):
"(e) Mail copies of the attached notice marked
"Appendix" to all employees in its employ as of May
15, 1978, and post at its facility in Omaha, Nebraska,
copies of the attached notice marked 'Appendix.'5
Copies of said notice, on forms provided by the Re-
gional Director for Region 17, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTI(E To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To act together for collective bargaining or
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all of these things.
WE WILL NOT refuse to give effect to and com-
ply fully with the terms of the agreement be-
tween the International Brotherhood of Electri-
cal Workers, Local No. 22, affiliated with
International Brotherhood of Electrical Workers,
and the Omaha Division, Nebraska Chapter,
National Electrical Contractors Association,
Inc., to which agreement it has been determined
that we are bound, extending from July 1, 1976,
through May 31, 1979, with respect to our em-
F:oyees in the following appropriate unit:
All employees employed by Fitzpatrick Elec-
tric, Inc. at or out of the facility, performing
work within the jurisdiction of the Union, in-
cluding, but not limited to, the handling, in-
stalling, assembling, erecting, connecting and
maintaining of all equipment and apparatus
after delivery to job sites stockpiled by our
regular material handling personnel on our ve-
hicles, but excluding professional employees,
guards and supervisors as defined in the Act.
WE WLl. NOT fail or refuse upon request to
bargain collectively in good faith with the above-
named Union as exclusive bargaining represent-
ative of employees in the above unit.
WE WILL NOT repudiate the aforementioned
collective-bargaining agreement or withdraw
recognition from the Union, or unilaterally
change terms and conditions of employment of
employees in the above unit, and WE WILL in all
respects comply with the terms of the aforemen-
tioned collective-bargaining agreement.
WE WlL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act, as amended.
WE WILL restore and place in effect all terms
and conditions of employment as provided in the
above agreement which were unilaterally
changed and abandoned by us.
WE ILti.. make all payments to the welfare,
pension, and other funds on behalf of those unit
employees for whom we previously made contri-
butions, and for whom such contributions would
have continued had we fully complied with the
agreement, and WI wi. make those employees
whole for the loss of wages or other benefits they
may have suffered, with interest.
FIITZPATRICK ELECTRIC, INC.
DECISION
STATEMENT OF THE CASE
GERALD A. WA( KNOY, Administrative Law Judge: Pur-
suant to notice, a hearing with respect of this matter was
held before me in Omaha, Nebraska, on November 28,
1978. The charge was filed on May 30, 1978, by Interna-
tional Brotherhood of Electrical Workers, Local 22, affili-
ated with International Brotherhood of Electrical Workers
(herein called the Union), and thereafter, on July 12, 1978,
a complaint and notice of hearing was issued alleging a
violation by Fitzpatrick Electric, Inc. (herein called Re-
spondent), of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended (herein called the Act). Respon-
dent denies the commission of any unfair labor practices.
The parties were afforded a full opportunity to be heard,
to call witnesses, to examine and cross-examine witnesses,
and to introduce relevant evidence. A post-hearing brief
was filed on behalf of Respondent, and post-hearing letters
of position were filed on behalf of the General Counsel and
counsel for the Charging Party.
Upon the entire record and based upon my observation
of the witnesses and consideration of the briefs submitted, I
make the following:
740
FITZPATRICK ELECTRIC. INC.
B. The Facls
1. JURISDIC ION
Respondent is a Nebraska corporation engaged in the
nonretail sale of electrical services and supplies and main-
tains its principal place of business in Omaha. Nebraska.
The parties stipulated that Respondent reports its income
on a fiscal year basis beginning June I and ending May' 31.
During the fiscal year extending from June 1. 1977, to May
31, 1978, Respondent purchased $56,089.92 worth of goods
and materials from two suppliers, which goods and materi-
als were shipped to Respondent either directly or indirectly
from outside the State of Nebraska. The record indicates
that subsequent to May 31, 1978, Respondent has pur-
chased a total of approximately $19,900 worth of goods and
materials from various suppliers located both within and
outside the State of Nebraska.'
James J. Fitzpatrick became vice president of Respon-
dent 4 months prior to the hearing herein, and he has been
chief operating officer of the corporation for approximately
2 months prior to the hearing. Fitzpatrick testified that re-
spondent has three employees, that he is completing certain
jobs and "winding down" the business affairs of Respon-
dent, and that there are currently plans to discontinue op-
erations although no steps have been taken to dissolve the
corporation. The Company is not bidding on an) contract
jobs but is apparently continuing its electrical service por-
tion of the business.-
As I find that Respondent unlawfully withdrew recogni-
tion from the Union within its 1977 78 fiscal year, during
which period Respondent met the Board's discretionary
standards for the assertion of jurisdiction, I therefore con-
clude that it would effectuate the purposes of the Act to
assert jurisdiction herein even though Respondent is discon-
tinuing its operations. See Langlade V'eneer Products Corpo-
ration, 118 NLRB 985 (1957); Hartford Gloss Co. of Misho-
waka, Inc., 230 NLRB 103, 104 (1977).
It. THE LABOR ORGANIZATION INVOI.lVh)
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRA(t I'ICt
A. The Issue
The principal issue raised by the pleadings is whether
since on or about May 15. 1978. and continuing thereafter.
Respondent has withdrawn recogrition rom the Union in
violation of Section 8(a)(5) anti ( I of the Act.
I However. Respondent's brief states that during the first 6 months of fiscal
1978 79. Respondent purchased $29.592.13 worth of supplies from such sup-
pliers.
'In its brief, filed January 2, 1979. Respondent states "Respondent
adopted a Corporate Resolution of Dissolution in December 1978. t,o take
effect in January. 1979," and currently emploss two "union member electri-
cians."
On May 24. 1978, R. W. Fitzpatrick, apparently pres-
ident of Respondent, wrote to the Union as follows:
This is to inform you that we no longer can afford to
have the few men working for us belong to the union
as of May 15, 1978.
Business has dropped to the point in the past six
months that it has been impossible to make ends meet.
With the high cost of material and high wages. we have
been unable to get the jobs as we used to.
I can assure you as soon as business picks up again.
we will be back with the union.
The current collective-bargaining agreement between the
Union and the Omaha Division. Nebraska Chapter, Na-
tional Electrical Contractors Association, Inc. (NECA), ex-
tends from July I. 1976, through May 31, 1979. Respondent
has never been a member of NECA; nor has Respondent,
insofar as probative record evidence establishes, signed a
letter of' assent to be bound by the current or any other
contract or engaged in negotiations with the Union. low-
ever, since about 1963 Respondent has been on the mailing
list of NE('A and was sent information regarding all
changes and amendments to the successive labor agree-
ments as if Respondent were a signatory party to the agree-
ments or to a letter of assent. Since 1963 Respondent has
paid the contractual wages and other contractual commit-
ments. including fringe benefits, embodied in the successive
collective-bargaining agreements between the Union and
NECA. Thus, each year Respondent submitted to NECA a
form showing its gross payroll and number of employees
employed during each month of the year. Further, each
month Respondent submitted to NECA a form entitled
"Monthly Payroll Report for Electrical Contractors Re-
porting Contributions to Health and Welfare, Vacation &
Education Funds Together with National Electrical Benefit
Fund and National Electrical Industry Fund." along with
appropriate checks to the various funds. Such reports show
the name of each employee, the total hours worked, the
gross earnings, and other information. The last monthly re-
port was submitted on May 12. 1978. covering the month of
April 1978.
Earl J Oliver is business manager for the Union. In 1963
the Union sent out a "start card" to NECA which operated
as an instruction to NECA to begin sending the various
aforementioned periodic forms to Respondent.' Oliver testi-
fied that when Respondent needed employees it called the
Lnion and was sent employees pursuant to the contractual
referral system, and that the Union handled disputes or
problems relating to Respondent's employees. Prior to the
letter of May 24. 1978. Respondent paid the prevailing con-
tract rate. made the appropriate contributions to the var-
ious funds. and deducted and submitted employees' union
dues to the Union.
The current employees of Respondent. all members of
the Union. are no longer receiving contract scale, and union
Oliver testified that based on the fact that the "start card" was sent. there
must have been contract or letter of assent signed h Respondent as a
condition precedent thereto, However. no such document has been located
after a dligent search bh Oller
FINDINGS OF()I FA(CI
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dues have not been withheld nor have fringe benefit pay-
ments been made on their behalf since about May 15, 1978.
C. AnalVsis and Conclusions
It is clear that the signing of either a contract or a letter
of assent agreeing to the terms of a contract is not a condi-
tion precedent to a finding that an employer is nonetheless
bound by the provisions thereof. Rather, an employer's
course of conduct manifesting an intention to adopt, ratify.
and be bound by the terms of a collective-bargaining agree-
ment is sufficient to impute a contractual relationship which
cannot be abrogated by the simple expedient of claiming
financial hardship as Respondent claims herein. See Haber-
man Construction Company, 236 NLRB 79 (1978): Vin
James Plastering Company, 226 NLRB 125 (1976): Marquis
Elevator Company. Inc., 217 NLRB 461 (1975).
Respondent has, so far as the record shows, faithfully
adhered to all the terms and conditions of' successive con-
tracts between the Union and NECA for the past 15 years.
making the appropriate changes in its wages and fringe
benefits as required, submitting the appropriate report
forms, utilizing the contractual referral system, and permit-
ting the Union to adjust job related problems or grievances.
There is not a scintilla of evidence indicating that Re-
spondent has ever questioned either the status of the U nion
as the collective-bargaining representative of Respondent's
employees or Respondent's obligations under the successive
collective-bargaining agreements. Moreover, Respondent's
statement contained in its May 24, 1978, letter that "I can
assure you as soon as business picks up again, we will be
back with the union," constitutes additional evidence that
Respondent considered itself' bound by the contract. See
Marquis Elevator Company, Inc.. supra at 466: Haberman
Construction Company, supra at 85.
I find that by Respondent's aforementioned conduct, ex-
hibited over the past 15 years without interruption, it mani-
fested a clear intention to adopt and to be bound by the
successive collective-bargaining agreements and established
a collective-bargaining relationship with the Union. By uni-
laterally repudiating the 1976 79 contract and by with-
drawing recognition from the Union. Respondent has sev-
ered this relationship in violation of Section 8(a)(5) and (1)
of the Act, as alleged.
CON(LUSIONS ()F LAW
I. Fitzpatrick Electric. Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6). and (7)
of the Act.
2. International Brotherhood of Electrical Workers, ILo-
cal 22, affiliated with International Brotherhood of Electri-
cal V, orkers, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by Fitzpatrick Electric, Inc.,
inside or outside the facility, performing work within the
jurisdiction of the Union, including, but not limited to, the
handling, installing, assembling, erecting, connecting. and
maintaining of all equipment and apparatus after delivery
to jobsites stockpiled by the Employer's regular material
handling personnel on its vehicles, but excluding profes-
sional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union is now. and has been at all times material
herein. the exclusive bargaining representative of all of the
employees in the unit described above within the meaning
of Section 9(a) of the Act.
5. At all times material herein, Fitzpatrick Electric, Inc.,
has recognized the Union as the exclusive bargaining repre-
sentative of its employees in the unit described above.
6. Fitzpatrick Electric, Inc., adopted and became bound
by a written collective-bargaining agreement between the
Union and the Omaha Division. Nebraska Chapter. Na-
tional Electrical Contractors Association, Inc.. effective
July I, 1976, through May 31, 1979.
7. Fitzpatrick Electric, Inc., violated Section 8(a)(5) and
(I) of the Act by, on or about May 15, 1978, repudiating
said collective-bargaining agreement and withdrawing rec-
ognition from the Union. by unilaterally changing the terms
and conditions of employment of employees in the unit set
out above, and by discontinuing payments to the various
funds established under the contract.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of' Section
2(6) and (7) of the Act.
TH RMt.l)Y
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action set
forth below designed and found necessary to effectuate the
policies of the Act. Having found that Respondent violated
Section 8(a)(5) and (I) of the Act, Respondent will be di-
rected to cease and desist from engaging in the conduct
found unlawful herein and will be directed to bargain col-
lectively in good faith, upon request. with the, Union. Re-
spondent will be directed to rescind and revoke its unlawful
repudiation of the terms and conditions of employment of
the unit employees as contained in the 1976 79 Union-
NE('A collective-bargaining agreement; to give retroactive
effect to the terms and conditions of employment as con-
tained in that agreement from the date of Respondent's
unlawful conduct on or about May 15. 1978; and to make
whole the employees in the unit found appropriate herein
for any loss of wages or other benefits by paying all wages.
benefits, and monies due to all health and welfare funds.
pension funds, or other funds provided for under the cur-
rent collective-bargaining agreement or succeeding agree-
ments which would have been paid but for Respondent's
unlawful conduct. Backpay is to be computed in the man-
ner prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950). and Florida Steel (orporation, 231 NLRB 651
(1977). See, generally. Isis Plumbing & tHeating Co., 138
NLRB 716 (1962). Further, it will be recommended that
Respondent post the attached notice.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
742
FITZPATRICK E.ECTRIC. INC.
ORDER4
The Respondent. Fitzpatrick Electric, Inc.. its officers.
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing or refusing to give full effect to the agreement
between the International Brotherhood of Electrical Work-
ers. Local 22. affiliated with International Brotherhood of
Electrical Workers, and the Omaha Division, Nebraska
Chapter, National Electrical Contractors Association, Inc.,
effective from July I. 1976, through May 31, 1979. with
respect to employees in the unit set forth above.
(b) Failing or refusing. on request. to bargain collectively
with the aforesaid labor organization as exclusive collec-
tive-bargaining representative of the employees in the ap-
propriate unit.
(c) Repudiating the collective-bargaining agreement and
withdrawing recognition from the Union and unilaterally
changing the terms and conditions of employment of the
employees in the aforementioned unit.
(d) In any other manner interfering with, restraining. or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations. to
bargain collectively through representatives of their o n
choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request. recognize and bargain collectively in
good faith with International Brotherhood of Electrical
Workers, Local 22, affiliated with International Brother-
' In the event no exceplions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National L.abor Relations Board. he findings.
conclusions, and recommended Order herein shall. as prov ided in Sec. 102 48
of the Rules and Regulations. he adopted hs the Board and become its
findings, conclusions, and Order. and all objeclions thereto shall be deemed
waived for all purposes.
hood of Electrical Workers. as exclusive bargaining repre-
sentative of' the employees in the above unit with respect to
the rates of pay. wages. hours of work, and other terms and
conditions of employ ment.
lb) Restore and place in effect all terms and conditions
of employ ment as prov ided in the above agreement . hich
were unilaterall changed and abandoned by Respondent.
(c) Make such health and welfare, pension. and other
pasments on behalf of those employees in the above unit
for whom such contributions would have continued to have
been made had Respondent not unlawfully repudiated the
collective-bargaining agreement and make the employees
whole for any loss of' wages and benefits incurred in the
manner set forth in the section entitled "The Remed'."
(d) Preserve and. upon request. make aailable to autho-
rized agents of the Board. for examination and copying. all
payroll records, social security payvment records, timecards.
personnel records and reports. and all other records neces-
sary to analyze the monies due under the terms of this Or-
der.
(e) Post at its facility in Omaha. Nebraska, the attached
notice marked "Appendix.'" Copies of said notice, on forms
provided by the Regional Director for Region 17. after
being duly signed by Respondent's representative. shall be
posted by it immediately upon receipt thereof. and be main-
tained b it for 60 consecutive dass thereafter. in conspicu-
ous places. including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered. de-
faced. or covered b any other material.
(f) Notify the Regional Director for Region 17. in writ-
ing. within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
In he ceent Iht his Order is nftrcedl hb a Judgment oia nited States
Court of Appeals. the words In the notice reading "Posted hb Order of Ihe
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the Utnled States (ourt ol Appeals Enforcing an Order of the National
Labor Relations Board "
743