Joynell Electric

National Labor Relations Board - Board Decisions

Jul 31, 1998

325 N.L.R.B. 229 (N.L.R.B. 1998)

1
325 NLRB No. 229
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Joynwell Electric, Inc. and International Brother-
hood of Electrical Workers, Local 90, AFL–
CIO. Case 34–CA–8153
July 31, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
Upon a charge and amended charges filed by the
Union on December 11, 1997, and January 30, Feb-
ruary 19, and March 13, 1998, the Acting General
Counsel of the National Labor Relations Board issued
a complaint on May 11, 1998 against Joynwell Elec-
tric, Inc., 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 charges
and complaint, the Respondent failed to file an answer.
On July 8, 1998, the Acting General Counsel filed
a Motion for Summary Judgment with the Board. On
July 10, 1998, 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 Re-
spondent filed no response. The allegations in the mo-
tion 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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated June 10, 1998,
notified the Respondent that unless an answer were re-
ceived by June 17, 1998, a Motion for Summary Judg-
ment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation, with an office and place of business in
Orange, Connecticut, has been engaged as an electrical
contractor in the building and construction industry.
During the 12-month period ending March 31, 1998,
the Respondent, in conducting its business operations
described above, performed services valued in excess
of $50,000 for Honeywell, Inc., which is a Delaware
corporation with an office and place of business in
Rocky Hill, Connecticut, where it has been engaged in
the building and construction industry. During the 12-
month period ending March 31, 1998, Honeywell, Inc.,
in the course and conduct of its business operations de-
scribed above, purchased and received at its Rocky
Hill, Connecticut facility goods valued in excess of
$50,000 directly from points outside the State of Con-
necticut. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(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
About October 2, 1995, the Respondent entered into
a ‘‘Letter of Assent-A,’’ authorizing the Connecticut
Chapter of the National Electrical Contractors Associa-
tion (N.E.C.A.) to be its collective-bargaining rep-
resentative for all matters contained in the inside labor
agreement between N.E.C.A. and the Union. On about
October 2, 1995, the Respondent granted recognition
to the Union and since that date has recognized the
Union as the collective-bargaining representative of the
employees in the appropriate unit set forth below,
without regard to whether the Union has ever estab-
lished its majority status under Section 9 of the Act.
Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is effective for the period March 26, 1998, to
March 25, 2000. For the period from October 2, 1995,
through March 25, 2000, based on Section 9(a) of the
Act, the Union has been the limited exclusive collec-
tive-bargaining representative of the following appro-
priate unit:
All journeymen and apprentice electricians, wire-
men and welders, employed by Respondent at its
job sites within the State of Connecticut in the
counties, cities, and geographical areas listed in
Article VI, Section 6.08 of the agreement referred
to above.
On about August 1, 1997, the Respondent unilater-
ally, and without the consent of the Union, failed to
continue in full force and effect all the terms and con-
ditions of the collective-bargaining agreement, includ-
ing but not limited to failing to employ members ac-
cording to articles V and VI, failing to pay wages ac-
cording to article III, and failing to make certain mon-
etary contributions according to article IV. These sub-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
jects relate to wages, hours, and other terms and condi-
tions of employment of the unit employees, and are
mandatory subjects for the purposes of collective bar-
gaining.
On or about March 2, 1998, the Union orally re-
quested that the Respondent furnish it with the Re-
spondent’s payroll records from August 1, 1997, to the
present. This information requested by the Union is
necessary for, and relevant to, the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the unit. Since on or about March 2,
1998, the Respondent has failed and refused to furnish
the Union with the information requested by it.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to bargain collectively
and in good faith with the limited exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(5) and Section 8(d) 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order the
Respondent to recognize and bargain with the Union as
the limited exclusive bargaining representative of the
unit employees, to comply with the 1998–2000 agree-
ment, including by employing members pursuant to ar-
ticles V and VI of the agreement, and to make whole
the unit employees for any loss of wages or earnings
they may have suffered as a result of the Respondent’s
failure to do so since August 1, 1997, in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 52 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In addition, we shall order the Re-
spondent to make all contractually required delinquent
contributions and to reimburse the Union and/or bene-
fit funds for its failure to do so since August 1, 1997,
including any additional amounts due on behalf of the
unit employees in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 fn. 7 (1979), and by
reimbursing them for any expenses ensuing from its
failure to make the required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.1
Further, we shall order the Respondent to furnish the
Union with the information it requested on March 2,
1998.
ORDER
The National Labor Relations Board orders that the
Respondent, Joynwell Electric, Inc., Orange, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to comply with the 1998–
2000 collective-bargaining agreement, including but
not limited to failing to employ members according to
articles V and VI, failing to pay wages according to
article III, and failing to make certain monetary con-
tributions according to article IV.
(b) Failing and refusing to provide the payroll record
information requested by the Union on March 2, 1998,
which is necessary for, and relevant to, its performance
of its duties as the exclusive bargaining representative
of the employees in the following unit:
All journeymen and apprentice electricians, wire-
men and welders, employed by Respondent at its
job sites within the State of Connecticut in the
counties, cities, and geographical areas listed in
Article VI, Section 6.08 of the current collective-
bargaining agreement.
(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) Recognize and bargain with the Union as the
limited exclusive bargaining representative of the em-
ployees set forth in the 1998–2000 collective-bargain-
ing agreement, and comply with the terms and condi-
tions of that agreement, including, but not limited to,
employing members pursuant to articles V and VI,
paying wages pursuant to article III, and paying certain
monetary contributions pursuant to article IV.
(b) Make whole the unit employees for any loss of
wages or earnings they may have suffered as a result
of its unlawful conduct and by making the required
contributions that have not been made since August 1,
1997, and by reimbursing them for any expenses ensu-
ing from its failure to make the required contributions,
as set forth in the remedy section of this decision.
(c) Make all contractually required contributions and
reimburse the Union and/or benefit funds for its failure
3JOYNWELL ELECTRIC
2 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
to do so since August 1, 1997, as set forth in the rem-
edy section of this decision.
(d) Provide the Union with the payroll records from
August 1, 1997, to the present, as requested by the
Union on March 2, 1998.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its facility in Orange, Connecticut, copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for
Region 34, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Respondent to ensure that the no-
tices are not altered, defaced or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 1, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 31, 1998
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
Peter J. Hurtgen, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to comply with the
1998–2000 collective-bargaining agreement with the
International Brotherhood of Electrical Workers, Local
90, AFL–CIO, including but not limited to failing to
employ members according to articles V and VI, fail-
ing to pay wages according to article III, and failing
to make certain monetary contributions according to
article IV.
WE WILL NOT fail and refuse to provide payroll
record information requested by the Union on March
2, 1998, which is necessary for, and relevant to, its
performance of its duties as the exclusive bargaining
representative of the employees in the following unit:
All journeymen and apprentice electricians, wire-
men and welders, employed by us at our job sites
within the State of Connecticut in the counties,
cities, and geographical areas listed in Article VI,
Section 6.08 of the current collective-bargaining
agreement.
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 recognize and bargain with the Union as
the limited exclusive bargaining representative of the
unit employees set forth in the 1998–2000 collective-
bargaining agreement, and comply with the terms and
conditions of that agreement, including but not limited
to employing members pursuant to articles V and VI,
paying wages pursuant to article III, and paying certain
monetary contributions pursuant to article IV.
WE WILL make whole unit employees for any loss
of wages or earnings they may have suffered as a re-
sult of our unlawful conduct and by making the re-
quired contributions that have not been made since Au-
gust 1, 1997, and by reimbursing them for any ex-
penses ensuing from our failure to make the required
contributions, with interest.
WE WILL make all contractually required contribu-
tions and reimburse the Union and/or benefit funds for
our failure to do so since August 1, 1997, with inter-
est.
WE WILL provide the Union with our payroll records
from August 1, 1997, to the present, as requested by
the Union on March 2, 1998.
JOYNWELL ELECTRIC, INC.