Southwestern Electric

National Labor Relations Board - Board Decisions

Apr 14, 2000

330 N.L.R.B. 179 (N.L.R.B. 2000)

330 NLRB No. 179
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Southwestern Electric Company and International
Brotherhood of Electrical Workers, Local Union
No. 570, AFL–CIO. Cases 28–CA–15258 and
28–CA–15899
April 14, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
Upon a charge filed by the Union in Case 28–CA–
15258 on June 19, 1998, and a charge filed by the Union
in Case 28–CA–15899 on June 29, 1999, the Ge neral
Counsel of the National Labor Relations Board issued a
consolidated complaint (the complaint) on September 30,
1999, against Southwestern Electric Company, the Re-
spondent, alleging that it has violated Section 8(a)(1) and
(5) of the National Labor Relations Act. Subsequently,
on October 13, 1999, the Respondent filed an answer to
the complaint. On March 20, 2000, however, the Re-
spondent withdrew its answer.
On March 23, 2000, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On March
24, 2000, the Board issued an order transferring the pro-
ceeding 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
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, unless 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 allegations in the Mo-
tion for Summary Judgment disclose that the Respon-
dent, on March 20, 2000, withdrew its answer to the
complaint. Such a withdrawal has the same effect as a
failure to file an answer, i.e., the allegations in the com-
plaint must be considered to be admitted to be true.1
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the complaint, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following

1 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Arizona cor-
poration with an office and principal place of business in
Wilcox, Arizona, has been engaged in the building and
construction industry as an electrical contractor doing
commercial and residential electrical work.
During the 12-month period ending June 19, 1998, the
Respondent, in the course and conduct of its business
operations described above, purchased and received at its
Wilcox, Arizona facility and jobsites within the State of
Arizona, goods and materials valued in excess of
$50,000 from other enterprises located in the State of
Arizona, including Brown Wholesale Electric Company,
which other enterprises had received those goods and
materials directly from points outside the State of Ari-
zona. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that 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, John A. Culver (Culver) has held
the positions of part owner and vice president of the Re-
spondent, and has been a supervisor of the Respondent
within the meaning of Section 2(11) of the Act and an
agent of the Respondent, acting on its behalf, within the
meaning of Section 2(13) of the Act.
At all material times, Bernie, whose last name is not
presently known to the General Counsel, but is known to
the Respondent, has held the position of representative of
Knight Electric Company. Bernie and Knight Electric
Company have been agents of the Respondent, acting on
its behalf, within the meaning of Section 2(13) of the
Act.
The employees of the Respondent, referred to in and
covered by the collective-bargaining agreement de-
scribed below, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
Saguaro Chapter, National Electrical Contractors As-
sociation (NECA) has been an organization composed of
employers engaged in the construction industry and ex-
ists for the purpose, among other things, of representing
its employer-members in negotiating with the Union and
administering collective-bargaining agreements.
On about April 1, 1994, the Union entered into a col-
lective-bargaining agreement with NECA (the Inside
Agreement) which, by its terms, was effective from April
1, 1994 to March 31, 1997, and which by agreement be-
tween the Union and NECA was extended through June
30, 1997.
On about October 1, 1996, the Respondent, by Culver,
executed a Letter of Assent-A, thereby authorizing
NECA to act as its collective-bargaining representative
for all matters contained in the current or any subsequent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
approved labor agreement with the Union, and whereby
the Respondent agreed to be bound by the Inside Agree-
ment and to such future agreements unless timely notice
was given.
The Respondent, an employer engaged in the building
and construction industry, granted recognition to the Un-
ion as the exclusive collective-bargaining representative
of the unit without regard to whether the Union’s major-
ity status had ever been established under the provisions
of Section 9(a) of the Act, such recognition being estab-
lished by the Inside Agreement pursuant to Section 8(f)
of the Act.
The Inside Agreement, in the absence of timely notice
of termination by the Respondent, automatically bound
the Respondent to the successor agreement negotiated
between the Union and NECA (the Agreement) which,
by its terms, is effective from June 30, 1997 to March 31,
2000.
At all material times, the Union has been the limited
exclusive representative of the unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
On about May 13, 1997, the Respondent withdrew
recognition of the Union as the exclusive collective-
bargaining representative of the unit.
On about a date in June 1997, which date is not pres-
ently more specifically known to the General Counsel,
but which date is within the Respondent’s knowledge,
the Respondent entered into a verbal agreement with the
Union in which it was agreed that the Union would not
enforce the terms of the Agreement if the Respondent’s
owner only employed himself and his family to perform
unit work, but that the Union would enforce, and the Re-
spondent would abide by, the Agreement if other indi-
viduals were hired to perform unit work.
On about June 5, 1998, the Union sent the Respondent
a letter advising it that on about April 19, 1998, the Un-
ion became aware that the Respondent was advertising
for employees to perform unit work and demanded that
the Respondent abide by the terms of the Agreement.
On about September 1, 1998, the Respondent entered
into an agrement with the Union whereby the Union
agreed not to enforce the Agreement on work performed
by the Respondent before September 1, 1998, but condi-
tioned upon the Respondent’s compliance with the terms
of the Agreement subsequent to that date.
On various dates during the period from January
through March 1999, the Union became aware that dur-
ing the period subsequent to September 1, 1998, the Re-
spondent had changed the terms and conditions of the
unit by continuing to fail and refuse to abide by the terms
of the Agreement, including, without limitation, failing
and refusing to utilize the Union’s hiring hall for em-
ployee referrals for employment in the unit, and failing to
apply wages, hours, and other terms and conditions of
employment set forth in the Agreement to unit employ-
ees of the Respondent.
On about May 21, 1999, after advis ing the Respondent
that it was aware that the Respondent was not complying
with the Agreement, the Union entered into a verbal
agreement with the Respondent whereby the Union
agreed not to enforce the Agreement on work performed
by the Respondent prior to May 21, 1999, contingent
upon the Respondent’s compliance with the terms of the
Agreement on all work performed subsequent to that
date.
On about May 24, 1999, the Respondent, by letter to
the Union, evidenced its intention not to comply with or
abide by the terms of the Agreement, including its inten-
tion not to abide by the terms of the Agreement on all
work performed by the Respondent.
Since on about December 19, 1997, the Respondent
has repudiated, failed and refused to abide by, and
changed the terms and conditions of the unit set forth in
the Inside Agreement and the Agreement, by, including,
without limitation, failing and refusing to utilize the Un-
ion’s hiring hall for employee referrals for employment
in the unit, and changing the wages, rates of pay, medical
benefits, retirement benefits, vacation pay, training, over-
time compensation, other benefits, and other terms and
conditions of employment set forth in the Inside Agre-
ment and the Agreement.
Since about December 29, 1998, the Respondent has
sought to avoid the hiring hall provisions of the Agree-
ment by advertising for employees to perform unit work
through agents such as Bernie and Knight Electric Com-
pany.
The subjects set forth above relate to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of the unit and are mandatory sub-
jects of collective bargaining.
The Respondent engaged in the acts and conduct de-
scribed above unilaterally, without prior notice to the
Union and without having afforded the Union an oppor-
tunity to bargain with the Respondent with respect to
these acts and this conduct, and their effects.
On a date in March 1999, which date is not presently
more specifically known to the General Counsel, but
which date is within the Respondent’s knowledge, the
Respondent, by Bernie, interrogated applicant-employees
for employment about their Union symp athies.
CONCLUSIONS OF LAW
By withdrawing recognition from the Union and by
repudiating, failing and refusing to abide by, and chang-
ing the terms and conditions of employment set forth in,
the Inside Agreement and the Agreement, the Respon-
dent has failed and refused to bargain collectively with
the Union as the limited exclusive collective-bargaining
representative of the unit, and thereby has engaged in
unfair labor practices within the meaning of Section
SOUTHWESTERN ELECTRIC CO. 3
8(a)(5) and (1) and Section 2(6) and (7) of the Act. By
interrogating applicant-employees about their union
sympathies, the Respondent has interfered with, re-
strained, or coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
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. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act, we shall order the Respondent to
abide by the June 30, 1997—March 31, 2000 collective-
bargaining agreement negotiated between NECA and the
Union, and to make whole the unit employees for any
loss of wages or benefits they may have suffered as a
result of the Respondent’s failure to comply with the
agreement since December 19, 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 pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). In addition, we shall order the Respondent
to make all contractually required contributions to the
various fringe benefit funds that it has failed to make
since December 19, 1997, including any additional
amounts due the funds on behalf of the unit employees in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn.7 (1979). Further, the Respondent shall
reimburse unit employees for any expenses resulting
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 Protec-
tion Service, supra, with interest as prescribed in New
Horizons for the Retarded, supra.2
Finally, in order to remedy the Respondent’s unlawful
failure to comply with the contractual hiring hall provi-
sions, we shall order an employment and backpay rem-
edy for those applicants who would have been referred to
the Respondent were it not for the Respondent’s failure
to abide by the 1997-2000 agreement. J.E. Brown Elec-
tric, 315 NLRB 620 (1994). The Respondent will have
the opportunity to introduce evidence on reinstatement
and backpay issues at the compliance stage. Id. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, supra.

2 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 delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
The General Counsel’s motion requests that, as part of
the remedy, the Board require the Respondent to mail a
copy of the Notice to Employees to all of its employees
employed from December 19, 1997, to the present, as
well as to individuals whose names appeared on the Un-
ion’s out-of-work list who would have been referred to
employment with the Respondent but were not because
of the Respondent’s unlawful conduct. The General
Counsel submits that this special mailing remedy is nec-
essary in view of the nature of the industry and the em-
ployment conditions in which the unit employees work
and in which the unfair labor practices in this case arise.
We agree that, in the circumstances of this case, the re-
quested mailing requirement would effectuate the pur-
poses of the Act. Accordingly, we shall order the Re-
spondent to mail the notices to the employees and appli-
cants described above.
ORDER
The National Labor Relations Board orders that the
Respondent, Southwestern Electric Company, Wilcox,
Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Electrical Workers, Local
Union No. 570, AFL–CIO, as the limited exclusive bar-
gaining representative of the employees of the Respon-
dent referred to in and covered by the June 30, 1997 to
March 31, 2000 collective-bargaining agreement negoti-
ated between the Union and the Saguaro Chapter, Na-
tional Electrical Contractors Association.
(b) Failing and refusing to abide by the 1997–2000
collective-bargaining agreement between the Union and
NECA, including failing to utilize the Union’s hiring hall
for employee referrals for employment in the unit and
failing to apply the wages, hours, rates of pay, medical
benefits, retirement benefits, vacation pay, training, over-
time compensation, other benefits, and other terms and
conditions of employment set forth in the agreement.
(c) Interrogating employee-applicants for employment
about their union sympathies.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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) Comply with the terms and conditions of the
1997—2000 collective-bargaining agreement between
the Union and NECA, and any automatic renewal or ex-
tension of it, including, but not limited to, the hiring hall
provisions, the wage provisions, and the fringe benefit
provisions for unit employees.
(b) Make whole the unit employees for any loss of
earnings or benefits they may have suffered as a result of
its unlawful failure to comply with the 1997—2000
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
agreement since December 19, 1997, as set forth in the
remedy section of this decision.
(c) Make all contractually required contributions to the
various fringe benefit funds that it has failed to make
since December 19, 1997, and reimburse unit employees
for any expenses ensuing from its failure to make the
required contributions, as set forth in the remedy section
of this decision.
(d) Offer immediate and full employment to those ap-
plicants who would have been referred to the Respondent
by the Union were it not for the Respondent’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, with interest, in the manner set forth
in the remedy section of this decision.
(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 payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Wilcox, Arizona, copies of the attached
notice marked “Appendix”.3 Copies of the notice, on
forms provided by the Regional Director for Region 28,
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
to all current employees and former employees employed
by the Respondent at any time since May 13, 1997.
(g) Mail a copy of the notice to all of its employees
employed by the Respondent since December 19, 1997,
and to individuals whose names appeared on the Union’s
out-of-work list who would have been referred to em-
ployment with the Respondent but for the Respondent’s
unlawful conduct.
(h) 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.

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 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.”
Dated, Washington, D.C. April 14, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

Wilma B. Liebman, 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Electrical Workers,
Local Union No. 570, AFL–CIO, as the limited exclusive
bargaining representative of our employees referred to in
and covered by the June 30, 1997 to March 31, 2000
collective-bargaining agreement negotiated between the
Union and the Saguaro Chapter, National Electrical Con-
tractors Association.
WE WILL NOT fail and refuse to abide by the 1997—
2000 collective-bargaining agreement between the Union
and NECA, including failing to utilize the Union’s hiring
hall for employee referrals for employment in the unit
and failing to apply the wages, hours, rates of pay, medi-
cal benefits, retirement benefits, vacation pay, training,
overtime compensation, other benefits, and other terms
and conditions of employment set forth in the agreement.
WE WILL NOT interrogate employee-applicants for em-
ployment about their union sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL comply with the terms and conditions of the
1997—2000 collective-bargaining agreement between
the Union and NECA, and any automatic renewal or ex-
tension of it, including, but not limited to, the hiring hall
provisions, the wage provisions, and the fringe benefit
provisions for unit employees.
WE WILL make whole the unit employees for any loss
of earnings or benefits they may have suffered as a result
of our unlawful failure to comply with the 1997—2000
collective-bargaining agreement since December 19,
1997, with interest.
SOUTHWESTERN ELECTRIC CO. 5
WE WILL make all contractually required contributions
to the various fringe benefit funds that we have failed to
make since December 19, 1997, and reimburse unit em-
ployees for any expenses ensuing from our failure to
make the required contributions, with interest.
WE WILL offer immediate and full employment to
those applicants who would have been referred for em-
ployment to us by the Union were it not for our unlawful
conduct, 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.

SOUTHWESTERN ELECTRIC COMPANY