U.S. Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2003

339 N.L.R.B. 52 (N.L.R.B. 2003)

1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
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.
U.S. Electric, Inc. and Local 58, International Broth­
erhood of Electrical Workers , AFL–CIO. Case
7–CA–45239
June 27, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
WALSH
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 filed by the
Union on June 27, 2002, the General Counsel issued the
complaint and amendment to complaint1 on August 30
and September 9, 2002, respectively, against U.S. Elec­
tric, Inc., the Respondent, alleging that it has violated
Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On October 7, 2002, the General Counsel filed a Mo­
tion for Default Judgment with the Board. On October 9,
2002, the Board issued an order transferring the proceed­
ing 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 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 Ge n­
eral Counsel’s motion disclose that the Region, by letter
dated September 27, 2002, notified the Respondent that
unless an answer were received by October 4, 2002, 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.
On the entire record, the Board makes the following
1 The amendment to the complaint corrected a date in the complaint
and added a subparagraph concerning jurisdictional information.
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Clinton Town-
ship, Michigan (the Clinton Township facility), has been
engaged as a residential and commercial electrical con-
tractor.
During the calendar year ending December 31, 2001,
the Respondent, in conducting its business operations
described above, derived gross revenues in excess of
$500,000, purchased goods and materials valued in ex­
cess of $50,000 from points located outside the State of
Michigan, and caused those goods and materials to be
shipped directly to its Clinton Township facility and its
Michigan jobsites. The Respondent also provided ser­
vices valued in excess of $50,000 for enterprises or enti­
ties directly engaged in interstate commerce. We find
that the Respondent is an employer engaged in com­
merce 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
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
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Mike Parziale Principal Owner
Steve Ross Principal Owner
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:
All journeymen electricians and apprentices employed
by Respondent; but excluding office clerical employ­
ees, professional employees, guards and supervisors as
defined in the Act.
Since approximately 1999, the Union has been the ex­
clusive collective-bargaining representative of the em­
ployees in the unit and since then has been recognized by
the Respondent as the exclusive collective-bargaining
representative of the unit. This recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is effective by its terms from
September 15, 2000, to September 14, 2004.
At all times since about 1999, based on Section 9(a) of
the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
339 NLRB No. 52
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About January 29, 2002, the Respondent ceased all
operations at, and closed, its Clinton Township facility.
The Respondent engaged in the conduct set forth
above without prior adequate notice to the Union and
without giving the Union an opportunity to bargain with
the Respondent with respect to the effects of such con-
duct on the unit.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
Since about January 25, January 29, and March 13,
2002, by letter, the Union has requested that the Respon­
dent furnish it with the following information regarding
the Respondent’s relationship with an entity called AMJ
Electric Services, Inc.:2
1. Provide U.S. Electric’s business address(es)
and telephone number(s).
2. Provide AMJ’s business address(es) and tele­
phone number(s).
3. Describe U.S. Electric’s business, service and
products.
4. Describe AMJ’s business, services and prod­
ucts.
5. List the names, titles and business addresses of
all officers, directors, and shareholders of U.S. Elec­
tric, Inc. and specify the ownership percentage of
each shareholder.
6. List the names, titles and business addresses of
all officers, directors, and shareholders of AMJ and
specify the ownership percentage of each share-
holder.
7. Describe the relationships between U.S. Elec­
tric, Inc., and AMJ Electrical Services, Inc., and
specify when the relationships began.
8. List the name(s), address(es), title(s), and tele­
phone number(s) of the custodian(s) of U.S. Elec­
tric’s corporate books and records.
9. List the name(s), address(es), title(s), and tele­
phone number(s) of the custodian(s) of AMJ’s cor­
porate books and records.
10. List the name(s), business address(es), ti­
tle(s), and telephone number(s) of U.S. Electric’s
2 The Union’s January 25, 2002 letter to the Respondent requesting
this information stated: “We understand that U.S. Electric, Inc., is oper­
ating an entity called AMJ Electrical Services, Inc., or is operating
under that name, performing work subject to the Inside Agreement by
and between Southeastern Michigan Chapter, National Electrical Con-
tractors Association, Inc., (NECA) and Local Union No. 58, Interna­
tional Brotherhood of Electrical Workers (IBEW). U.S. Electric, Inc. is
a party to the NECA-IBEW Agreement, therefore, we request the fol­
lowing information.”
principal bookkeeper(s), payroll preparer(s), and ac­
countant(s).
11. List the name(s), business address(es), ti­
tle(s), and telephone number(s) of AMJ’s principal
bookkeeper(s), payroll preparer(s), and account-
ant(s).
12. Identify by name, job title(s), and employ­
ment dates each person who is, or has been em­
ployed by U.S. Electric, Inc., who also is or has been
employed by AMJ Electrical Services, Inc.
13. Identify by name, job title(s), and dates of
employment all superintendents, foremen and other
managers and supervisors employed by U.S. Elec­
tric, Inc.
14. Identify by name, job title(s), and dates of
employment all superintendents, foremen and other
managers and supervisors employed by AMJ Elec­
trical Services, Inc.
15. Provide a list of U. S. Electric, Inc. employ­
ees in the Local 58-represented bargaining unit for
the past year, including each employee’s job title(s)
and employment dates and, if laid off or otherwise
terminated, the reason for the layoff or termination.
16. Identify all jobs undertaken by U.S. Electric,
Inc. during the period June 2000 to date, specifying
for each the name, address and telephone number of
each customer, general contractor, and subcontractor
on the job, and the nature, scope and duration of the
work performed.
17. Identify all jobs undertaken by AMJ Electri­
cal Services, Inc. during the period June 2000 to
date, specifying for each the name, address and tele­
phone number of each customer, general contractor,
and subcontractor on the job, and the nature, scope
and duration of the work performed, including the
number of work hours performed by hourly employ­
ees on the job, indicating the hourly rate for hours
worked, and the wages and fringe benefits paid those
benefits [sic].
18. Identify the dates, amounts, and reasons for
any transfer of funds from U.S. Electric, Inc. to AMJ
Electric Services, Inc. or from AMJ Electrical Ser­
vices, Inc. to U.S. Electric, Inc.
19. Provide copies of all advertising and promo­
tional material, including communications soliciting
work, put out by U.S. Electric, Inc. or AMJ or both.
20. List all the equipment owned by U.S. Elec­
tric, Inc.
21. List all vehicles owned by U.S. Electric, Inc.
22. List all the equipment owned by AMJ Elec­
trical Services, Inc.
U.S. ELECTRIC, INC. 3
23. List all vehicles owned by AMJ Electrical
Services, Inc.
The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
About January 29 and March 13, 2002, by letter, the
Union requested that the Respondent bargain over the
effects of the decision to cease doing business about
January 29, 2002.
Since about January 25, 2002, the Respondent has
failed and refused to furnish the Union with the informa­
tion requested, and since January 29, 2002,3 has failed
and refused to bargain with the Union over the effects of
the decision to cease doing business.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com­
merce within the meaning of Section 8(a)(5) and (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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to close its Clinton Township facility, we shall
order the Respondent to bargain with the Union, on re-
quest, about the effects of its decision. As a result of the
Respondent’s unlawful conduct, however, the terminated
employees have been denied an opportunity to bargain
through their collective-bargaining representative.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit­
ted.
3 The complaint, at par.16, alleges that since about January 25, 2002,
the Respondent has failed and refused to bargain with the Union over
the effects of its decision to cease doing business. However, prior
allegations in the complaint allege that it was on January 29, 2002, that
the Respondent ceased operations at and closed its Clinton Township
facility without advance notice to the Union and without affording the
Union an opportunity to bargain over the effects of the decision to
close. We therefore conclude that the actual date of the Respondent’s
refusal to bargain is January 29, 2002.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
purposes of the Act, to accompany our Order with a lim­
ited backpay requirement designed to make whole the
employees for losses suffered as a result of the violations
and to re-create in some practicable manner a situation in
which the parties’ bargaining position is not entirely de-
void of economic consequences for the Respondent. We
shall do so by ordering the Respondent to pay backpay to
the terminated employees in a manner similar to that
required in Transmarine Navigation Corp ., 170 NLRB
389 (1968), as clarified by Melody Toyota, 325 NLRB
846 (1998). 4
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per­
taining to the effects of the closing of its facility on its
employees; (2) a bona fide impasse in bargaining; (3) the
Union’s failure to request bargaining within 5 business
days after receipt of this Decision and Order, or to com­
mence negotiations within 5 business days after receipt
of the Respondent’s notice of its desire to bargain with
the Union; or (4) the Union’s subsequent failure to bar-
gain in good faith.
In no event shall the sum paid to these employees ex­
ceed the amount they would have earned as wages from
the date on which the Respondent terminated its opera­
tions to the time they secured equivalent employment
elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever occurs
sooner. However, in no event shall this sum be less than
the employees would have earned for a 2-week period at
the rate of their normal wages when last in the Respon­
dent’s employ. Backpay shall be based on earnings
which the unit employees would normally have received
during the applicable period, less any net interim earn­
ings, and shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Further, having found that the Respondent has failed to
provide the Union information that is relevant and neces­
sary to its role as the exclusive collective-bargaining rep­
resentative of the unit employees, we shall order the Re­
spondent to furnish the Union with the information re-
quested.
4 See also Live Oaks Skilled Care & Manor, 300 NLRB 1040
(1990).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, in view of the fact that the Respondent’s facil­
ity is currently closed, we shall order the Respondent to
mail a copy of the attached notice to the Union and to the
last known addresses of its former employees who were
employed by the Respondent since January 25, 2002, in
order to inform them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, U.S. Electric, Inc., Clinton Township,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, as the exclusive collective-bargaining repre­
sentative of the employees in the unit set forth below,
about the effects of its decision to close its Clinton
Township, Michigan facility:
All journeymen electricians and apprentices employed
by Respondent; but excluding office clerical employ­
ees, professional employees, guards and supervisors as
defined in the Act.
(b) Failing and refusing to provide the Union with in-
formation that is necessary for and relevant to the Un­
ion’s performance of its duties as the exclusive bargain­
ing representative of the unit employees.
(c) 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) On request, bargain with the Union over the effects
on unit employees of its decision to close its Clinton
Township, Michigan facility and reduce to writing and
sign any agreement reached as a result of such bargaining.
(b) Pay the former unit employees their normal wages
when last in the Respondent’s employ from 5 days after
the date of this Decision and Order until occurrence of
the earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the closing of
its facility on its employees; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith; but in no event shall the
sum paid to these employees exceed the amount they
would have earned as wages from the date on which the
Respondent terminated its operations, to the time they
secured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, however,
that in no event shall this sum be less than the employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ,
with interest, as set forth in the remedy section of this
decision.
(c) Provide the Union with the information it requested
about January 25, January 29, and March 13, 2002, re­
garding the Respondent’s relationship with an entity
called AMJ Electrical Services, Inc.
(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 elec­
tronic 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, dupli­
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix” 5 to all unit em­
ployees who were employed by the Respondent since
January 25, 2002.
(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.
Dated, Washington, D.C. June 27, 2003
________________________________
Robert J. Battista, Chairman
________________________________
Wilma B. Liebman, Member
________________________________
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na­
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
U.S. ELECTRIC, INC. 5
APPENDIX
NOTICE TO EMPLOYEES

MAILED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board had 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 a 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
activities.
WE WILL NOT fail and refuse to bargain in good faith
with the Union as the exclusive collective-bargaining rep­
resentative of our employees in the following unit, by fail­
ing and refusing to bargain about the effects of our deci­
sion to close our Clinton Township, Michigan facility:
All journeymen electricians and apprentices employed
by us; but excluding office clerical employees, profes­
sional employees, guards and supervisors as defined in
the Act.
WE WILL NOT fail and refuse to provide the Union with
information that is necessary for and relevant to the Un­
ion’s performance of its duties as the exclusive bargain­
ing representative of the unit employees.
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, on request, bargain with the Union concern­
ing the effects on unit employees of our decision to close
our Clinton Township, Michigan facility, and reduce to
writing and sign any agreement reached as a result of
such bargaining.
WE WILL pay our unit employees limited backpay in
connection with our failure to bargain over the effects of
our decision to close our Clinton Township, Michigan
facility, as required in the Decision and Order of the Na­
tional Labor Relations Board.
WE WILL provide the Union with the information it re-
quested on January 25, January 29, and March 13, 2002,
regarding our relationship with an entity called AMJ
Electrical Services, Inc.
U. S. ELECTRIC, INC.