S.M.S. Electrical

National Labor Relations Board - Board Decisions

Oct 31, 1995

319 N.L.R.B. 642 (N.L.R.B. 1995)

642
319 NLRB No. 85
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The second complaint was sent to the Respondent by certified
mail, but was returned to the Regional Office marked ‘‘unclaimed.’’
The Respondent’s failure or refusal to claim certified mail, however,
cannot defeat the purposes of the Act. Michigan Expediting Service,
282 NLRB 210 fn. 6 (fiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17*fiMDNMfl.
2 Although the Respondent did file an answer to the original com-
plaint, that answer was withdrawn by the explicit terms of the settle-
ment agreement. The settlement form used by the parties was NLRB
Form 4775, the standard informal settlement agreement, which ex-
pressly provides that approval of the settlement agreement ‘‘shall
constitute withdrawal of any Complaint(fiMDBUfl*ERR17*fiMDNMfls)fiMDBUfl*ERR
heretofore issued in this case, as well as any answer(fiMDBUfl*ERR17*fiMDNMfls)fiMD
sponse.’’ (fiMDBUfl*ERR17*fiMDNMflEmphasis added.)fiMDBUfl*ERR17*fiMDNMfl T
original complaint does not remain extant and does not preclude
summary judgment. See Signage Systems, 312 NLRB 1115 (fiMDBUfl*ERR17*fiMDNM
Ofalco Properties, 281 NLRB 84 (fiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17
274 NLRB 1018 (fiMDBUfl*ERR17*fiMDNMfl1985)fiMDBUfl*ERR17*fiMDNMfl.
Scott Strachan, d/b/a S.M.S. Electrical and Inter-
national Brotherhood of Electrical Workers
Local Union No. 43 Pension, Health and Wel-
fare, Annuity and Joint Apprentice Training
Committee Trust Funds. Case 3–CA–18208
October 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
Upon a charge filed by International Brotherhood of
Electrical Workers Local Union No. 43 Pension,
Health and Welfare, Annuity and Joint Apprentice
Training Committee Trust Funds on November 4,
1993, the Regional Director for Region 3 of the Na-
tional Labor Relations Board issued a complaint on
February 28, 1994, against Scott Strachan, d/b/a
S.M.S. Electrical, the Respondent, alleging that it had
failed to adhere to the terms of the most recent prehire
agreement with the Union since May 4, 1993, in viola-
tion of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17
Relations Act. On March 16, 1994, the Respondent
filed an answer to the complaint denying the allega-
tions therein.
Thereafter on November 9, 1994, the Regional Di-
rector approved an informal settlement agreement en-
tered into by the Respondent and the Charging Party
Funds in disposition of the complaint. On May 23,
1995, however, the Regional Director issued a second
complaint that vacated the informal settlement agree-
ment and realleged the same allegations contained in
the original complaint, on the ground that the Re-
spondent had failed to comply with the settlement
agreement.
Although properly served copies of the second com-
plaint, the Respondent failed to file an answer thereto.1
Accordingly, on September 22, 1995, the General
Counsel filed a Motion for Summary Judgment with
the Board. On September 25, 1995, 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 allega-
tions 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
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 second com-
plaint affirmatively notes that unless an answer is filed
within 14 days of service, all the allegations in the sec-
ond complaint will be considered admitted. Further,
the undisputed allegations in the Motion for Summary
Judgment disclose that the Region, by letter dated Au-
gust 11, 1995, notified the Respondent that unless an
answer were received by close of business August 18,
1995, a Motion for Summary Judgment would be filed.
Nevertheless, as indicated above, the Respondent failed
to file an answer to the second complaint.2
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer to the sec-
ond complaint, we grant the 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 has been
owned by Scott Strachan, a sole proprietorship, doing
business as S.M.S. Electrical. At all material times, the
Respondent has maintained an office and place of busi-
ness at Sunnybrook Drive, North Syracuse, New York,
and has been engaged in commercial and industrial
planning, layout, installation, and repair of wiring and
electrical fixtures.
At all material times The Finger Lakes New York
Chapter, N.E.C.A., Inc. (fiMDBUfl*ERR17*fiMDNMflthe Association)
fice and place of business in Syracuse, New York, has
been an organization composed of various employers
engaged in the construction industry, one purpose of
which is to represent those employers that have signed
a ‘‘letter of assent A,’’ in negotiating and administer-
ing collective-bargaining agreements with various labor
organizations.
On about July 20, 1987, the Respondent signed a
‘‘letter of assent A,’’ delegating its collective-bargain-
ing authority to the Association and agreeing to be
bound by the Association agreements.
During the calendar year ending December 31, 1993,
the Respondent and the employers who signed ‘‘letters
of assent A’’ with the aforementioned Association, in
643S.M.S. ELECTRICAL
3 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.
the course of their business operations, collectively
purchased and received at their facilities located within
the State of New York, products, goods, and materials
valued in excess of $50,000 directly from points lo-
cated outside the State of New York.
By virtue of the facts described above, the Respond-
ent’s execution of ‘‘letter of assent A’’ is sufficient to
warrant the assertion of jurisdiction. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMfl, (fiMDBUfl*ERR17*fiMDNMfl6)fiM
Act and that International Brotherhood of Electrical
Workers, Local Union No. 43, the Union, is a labor or-
ganization within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
All electrical workers employed by the Respondent
(fiMDBUfl*ERR17*fiMDNMflthe unit)fiMDBUfl*ERR17*fiMDNMfl, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl of the Act.
About July 20, 1987, the Respondent entered into a
‘‘letter of assent A,’’ whereby it authorized the Asso-
ciation to act as its collective-bargaining representative
for all matters contained in or pertaining to the current
approved inside collective-bargaining agreement be-
tween the Union and the Association, and agreed to be
bound to such future agreements unless timely notice
was given.
The Respondent, an employer engaged in the build-
ing and construction industry, granted recognition to
the Union as the exclusive collective-bargaining rep-
resentative of the unit without regard to whether the
majority status of the Union had ever been established
under the provisions of Section 9(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl of the Act. Such
recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which is
effective for the period June 1, 1993, to May 31, 1996.
For the period from June 1, 1993, to May 31, 1996,
and since the ‘‘letter of assent A’’ was signed by the
Respondent, based on Section 9(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl of the Act, the
Union has been the limited exclusive collective-bar-
gaining representative of the unit.
Since about May 4, 1993, the Respondent has failed
and refused to adhere to the terms and conditions of
the most recent prehire collective-bargaining agreement
and has thereby repudiated that agreement.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively with the limited exclusive collective-bargain-
ing representative of its employees, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMD
tion 2(fiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR17*fiMDNMfl and (fiMDBUfl*ERR17*fiMDNMfl7)fiMDBUfl*ERR17*fiMDN
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we will order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, we will order the Respondent to comply with the
terms of the most recent prehire collective-bargaining
agreement, and to make the unit employees whole for
any loss of earnings they may have suffered as a result
of the Respondent’s failure to do so since May 4,
1993. Backpay will be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682
(fiMDBUfl*ERR17*fiMDNMfl1970)fiMDBUfl*ERR17*fiMDNMfl, enfd
est thereon to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(fiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMfl. In a
make the unit employees whole for any loss of benefits
resulting from its failure to adhere to the terms of the
most recent prehire agreement since May 4, 1993, by
making any and all such delinquent benefit fund con-
tributions, including any additional amounts due the
funds in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (fiMDBUfl*ERR17*fiMDNMfl1979)fiMDB
ing the unit employees for any expenses ensuing from
its failure to make the required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (fiMDBUfl*ERR17*fiMDNMfl1980)fiMDBUfl*ERR17*fiMDNMfl, e
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.3
Finally, pursuant to J. E. Brown Electric, 315
NLRB 620 (fiMDBUfl*ERR17*fiMDNMfl1994)fiMDBUfl*ERR17*fiMD
a reinstatement and backpay remedy for those appli-
cants who would have been referred to the Respondent
were it not for the Respondent’s failure to abide by the
agreement. Although the complaint does not specifi-
cally allege that the Respondent violated the hiring hall
provisions of the prehire agreement, it does allege that
the Respondent has failed to adhere to and has repudi-
ated the prehire agreement. Further, we note that the
prior informal settlement agreement executed by the
parties, which as indicated above was set aside because
of the Respondent’s noncompliance, included a provi-
sion in the stipulated notice that specifically provided
a make whole remedy for any employees who would
have been referred from the Union’s hiring hall as a
result of the Respondent’s failure to adhere to the
agreement. In these circumstances, where the com-
plaint alleges that the Respondent repudiated the
prehire agreement, it is apparent from the record that
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Member Cohen would not the order Respondent to offer employ-
ment and backpay to hiring hall applicants. There is no allegation
that the contract contained a hiring hall agreement. My colleagues
infer the existence of such an agreement. That inference, however,
is based on a remedial notice in an informal settlement. I have grave
doubts as to whether a notice in an informal settlement can provide
the basis for a finding of fact. More importantly, even if it could,
the salient point is that the settlement has been set aside. In sum,
there is no basis for finding a hiring hall agreement. Hence, it cannot
be said that the Respondent modified or terminated any such agree-
ment. In my view, a remedy for a hypothetical violation is inappro-
priate, and is well beyond the ‘‘limited and close focus’’ that I en-
visaged in my concurrence in J. E. Brown, supra.
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
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.’’
the prehire agreement included hiring hall provisions,
and the Respondent has failed to file an answer to the
complaint, we find that it is appropriate to order a
J. E. Brown reinstatement and backpay remedy. As in-
dicated in J. E. Brown, the Respondent will have the
opportunity to introduce evidence on reinstatement and
backpay issues at the compliance stage.
Accordingly, pursuant to J. E. Brown, we will order
the Respondent to offer immediate and full employ-
ment to those applicants who would have been referred
to the Respondent by the Union were it not for the Re-
spondent’s unlawful conduct, and to make them whole
for any loss of earnings and other benefits they may
have suffered by reason of the Respondent’s failure to
hire them. Backpay will be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMfl,
with interest as prescribed in New Horizons for the Re-
tarded, supra.4
ORDER
The National Labor Relations Board orders that the
Respondent, Scott Strachan, North d/b/a S.M.S. Elec-
trical, Syracuse, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Failing and refusing to bargain collectively with
the International Brotherhood of Electrical Workers,
Local Union No. 43 as the limited exclusive bargain-
ing representative of the Respondent’s electrical work-
ers by failing to adhere to and/or repudiating the most
recent prehire collective-bargaining agreement.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl In any like or related manner interfering with,
restraining, 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.
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Comply with the terms and conditions of the
most recent prehire collective-bargaining agreement.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Make whole the unit employees for any loss of
earnings, benefits, or expenses resulting from the Re-
spondent’s failure to comply with the agreement since
May 4, 1993, with interest, as set forth in the remedy
section of this decision.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl Offer immediate and full employment to those
applicants who would have been referred to the Re-
spondent by the Union were it not for the Respond-
ent’s unlawful conduct, and make them whole for any
loss of earnings and other benefits suffered by reason
of the Respondent’s failure to hire them, in the manner
set forth in the remedy section of this decision.
(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl Preser
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.
(fiMDBUfl*ERR17*fiMDNMfle)fiMDBUfl*ERR17*fiMDNMfl Post a
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 notices are not al-
tered, defaced or covered by any other material.
(fiMDBUfl*ERR17*fiMDNMflf)fiMDBUfl*ERR17*fiMDNMfl Notify
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 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 bargain collectively
with the International Brotherhood of Electrical Work-
ers, Local Union No. 43 as the limited exclusive bar-
gaining representative of our electrical workers by fail-
ing to adhere to and/or repudiating the most recent
prehire 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 comply with the terms and conditions of
the most recent prehire collective-bargaining agree-
ment.
WE WILL make whole our unit employees for any
loss of earnings, benefits, or expenses resulting from
645S.M.S. ELECTRICAL
our failure to comply with the agreement since May 4,
1993, with interest.
WE WILL offer immediate and full employment to
those applicants who would have been referred for em-
ployment by the Union were it not for our unlawful
failure to comply with the agreement, and WE WILL
make them whole for any loss of earnings and other
benefits suffered by reason of our failure to hire them,
with interest.
SCOTT STRACHAN, D/B/A S.M.S ELEC-
TRICAL