Utility Tree Service, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 806 (N.L.R.B. 1974)

806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Utility Tree Service, Inc. and International Brother-
hood of Electrical Workers, Local 1245. Case
20-CA-9044
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on March 22, 1974, by the Inter-
national Brotherhood of Electrical Workers, Local
1245, herein called the IBEW, against Respondent,
Utility Tree Service, Inc., and served on Respondent on
March 25, 1974, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 20, issued a complaint on May 3, 1974, alleging
that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amended.
Copies of the complaint and notice of hearing were
served on the Respondent and the IBEW. Thereafter,
Respondent filed a timely answer admitting certain fac-
tual allegations of the complaint, but denying the com-
mission of any unfair factual allegations of the com-
plaint, but denying the commission of any unfair labor
practices. A hearing before an Administrative Law
Judge was scheduled for June 4, 1974.
Thereafter, on June 24, 1974, all parties herein
moved that the instant proceeding be transferred to the
National Labor Relations Board without a hearing
before an Administrative Law Judge, and that the en-
tire record consist of the formal papers and certain facts
stipulated by the parties. The parties waived a hearing
before, and rulings on motions, findings of fact, and
conclusions of law by, an Administrative Law Judge
and the issuance of an Administrative Law Judge's
Decision. On June 26, 1974, the Board granted the joint
motion, approved the parties' stipulation of facts, and
transferred this proceeding to itself. Thereafter, Re-
spondent, the IBEW, and the General Counsel field
briefs.'
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.
Upon the entire record in this case, the Board makes
the following findings:
I We deny the Respondent's motion to strike the letter of counsel for the
General Counsel dated August 2, 1974, addressed to the Board's Executive
Secretary, presenting the General Counsel's position regarding the merits of
the Respondent's contentions We construe such letter as a brief All neces-
sary parties received copies, and the letter-brief otherwise meets all require-
ments of the Board's Rules and Regulations , Series 8, as amended, regarding
such pleadings
I JURISDICTION
The complaint alleges, and the answer admits, that
Respondent is, and at all times material herein has
been, engaged in the business of distributing gas and
electric energy for light, heat, and power purposes and
that during the year 1973, a representative year, Re-
spondent, in the course and conduct of its business
operations, performed services valued in excess of $50,-
000 for Pacific Gas and Electric Company, herein
called P.G. & E. At all material times herein, P.G. &
E., a public utility corporation with facilities located
throughout the State of California, has been engaged in
the business of distributing gas and electric energy for
light, heat, and power purposes. During the past year,
P.G. & E., in the course and conduct of its business
operations, purchased and received, at its facilities in
the State of California, goods valued in excess of $50,-
000 directly from suppliers located outside the State of
California. During the past year P.G. & E., in the
course and conduct of its operations, received gross
revenues in excess of $250,000. The answer further
admits, and we find, that Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and we
find that the IBEW is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts herein are undisputed. For a number of
years the IBEW has represented certain employees of
the Respondent known as climbers and trainees. The
most, recent collective-bargaining agreement between
the parties expired on December 31, 1973. Prior to the
expiration of the contract the IBEW on October 26,
1973, notified the Respondent of a desire to enter into
negotiations for a new agreement. Thereafter, negotia-
tions commenced, and the parties agreed to extend the
then existing contract beyond its expiration date on a
day-to-day basis.
On February 12, 1974,2 the Respondent submitted
a proposal on an entirely new contract, subject to ratifi-
cation by the IBEW's membership. The IBEW negotia-
tors agreed to submit the Respondent's proposal to the
employees for a ratification vote. Shortly thereafter, the
IBEW advised the Respondent that the employees had
rejected the Respondent's proposal. In accordance with
prior understanding, 'the Respondent notified the
IBEW on February 28 that it considered the previously
expired agreement as terminating finally as of March 5.
2 Unless otherwise indicated, all dates hereinafter refer to the year 1974
215 NLRB No. 152
UTILITY TREE SERVICE, INC
Respondent also advised the IBEW that the proposal
submitted was its final offer . Respondent suggested
that the IBEW resubmit the proposal of February 12
to its members for another ratification vote . Upon re-
quest of the IBEW , Respondent agreed to leave the
tentative agreement and offer open for final acceptance
by the IBEW through March 9.
The second ratification meeting was held on Satur-
day, March 9, and the agreement of February 12 was
ratified by the employee-members by a vote of 4-3.
Respondent 's secretary-treasurer was advised of the re-
sults of the vote on the same day.
Commencing on March 11 , and continuing through
March 12, Respondent received signed statements from
its' employees that they no longer wished to be repre-
sented by IBEW . By March 12, the Respondent had
received such notification from nine of its employees,
a majority of the employees in the appropriate unit.
On March 14 , Respondent advised the IBEW that it
would not sign the agreement as ratified , and which it
had considered a final offer, because of a doubt of the
Union's continuing majority status . Respondent also
advised the IBEW that it had filed a petition, Case
20-RM-1740, for an election with the National Labor
Relations Board . On March 22 , the IBEW filed an
8(a)(1) and' (5) charge alleging that the Respondent
refused to execute a new contract . The Regional Direc-
tor thereafter issued the instant unfair labor practice
complaint and dismissed the petition.
Contrary to the contentions of the Respondent, we
find that on March 9 the parties had consummated a
valid contract to which the Respondent was bound,
and the Respondent was made aware of that fact on the
same day . Thus, subsequent actions by IBEW members
or issues raised by the Respondent regarding its good-
faith doubt as to whether the IBEW thereafter repre-
sented a majority of employees in the appropirate unit
are irrelevant.
Accordingly , we find that on March 9 a final and
binding collective-bargaining contract was consum-
mated between the Respondent and the IBEW, and
that the Respondent had been duly notified . At that
point the Respondent had a legal obligation to sign and
execute the contract . The Respondent 's alleged doubt
of the IBEW 's majority on March 12 was immaterial
since on March 9 it had no basis for questioning the
IBEW's majority . The refusal of the Respondent, to
execute the contract, therefore , violated Section 8(a)(1)
and (5) of the Act.'
3 See, e g, Tanner Motor Livery, Ltd, 160 NLRB 1669, 1683 (1966)
CONCLUSIONS OF LAW
807
On the basis of the foregoing findings of fact and the
entire record in the case , we make the following conclu-
sions of law:
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The IBEW is a labor organization within the
meaning of Section 2 (5) of the Act.
3. At all times material herein the IBEW has been
the duly authorized collective-bargaining representa-
tive of Respondent 's employees in an appropriate unit
composed of "All climbers employed at Respondent's
Eureka , California, location, excluding all other em-
ployees , office clerical employees , shop employees,
guards and supervisors as defined in the Act."
4. By failing and refusing to execute the collective-
bargaining agreement negotiated with the IBEW on
March 9, 1974, and by withdrawing recognition from
the IBEW as the collective-bargaining representative of
its employees in the aforesaid unit, the Respondent
interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed them by Section 7
of the Act, and thereby engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(5) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce with the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent failed and refused to
execute the contract it negotiated with the IBEW, we
shall order that , upon request of the IBEW , it do so and
comply with all the provisions thereof retroactive to
March 9 , 1974, the date such agreement was consum-
mated, including backpay to employees who may not
have been fully compensated as provided in the con-
tract , such backpay, if any is due , to be computed in
accordance with the Board 's formula set forth in F W.
Woolworth Company, 90 NLRB 289 (1950); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Because of the nature of the unfair labor practices
herein found , and in order to make effective the inter-
dependent guarantees of Section 7 of the Act, we shall
also order the Respondent to refrain from in any like
or related manner abridging any of the rights guaran-
teed employees by Section 7 of the Act.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Utility Tree
Service, Inc., Eureka, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing, upon request, to sign and give
effect retroactive to March 9, 1974, the agreement
reached with International Brotherhood of Electrical
Workers, Local 1245, on that date.
(b) Failing or refusing to recognize and bargain col-
lectively in good faith with the above Union concerning
issues which have arisen, or which may arise under the
terms of the aforesaid agreement.
(c) In any like or related manner interfering with,
restraining, or coercing 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
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the Act:
(a) Upon request, sign and give effect retroactive to
March 9, 1974, to the agreement reached with the
above Union.
(b) Upon request, bargain collectively in good faith
with the above Union, concerning any question which
has arisen, or which may arise, under the terms of the
aforesaid agreement.
(c) Make whole all employees or former employees
for any losses suffered by reason of its failure to sign
and comply with the aforesaid agreement, retroactive
to March 9, 1974, by paying to each employee a sum
of money equal to the difference, if any, between his
earnings under the provisions of the aforesaid contract
and the amount he was in fact paid, as provided in the
section hereof entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
In the event that 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 "
(e) Post at its plant in Eureka, California, copies of
the attached notice marked "Appendix."` Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 20, after being duly signed by an author-
ized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
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 having found,
after a hearing , that we violated Federal law by failing
to execute and give effect to a collective -bargaining
agreement:
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in the
exercise of their rights guaranteed under Section 7
of the Act.
WE WILL execute , deliver , and give effect to our
collective-bargaining agreement with Interna-
tional Brotherhood of Electrical Workers, Local
1245, effective March 9, 1974, through December
31, 1976.
WE WILL bargain with the above-named Union,
upon request , concerning any question which has
arisen, or which may arise under the terms of the
aforesaid agreement.
WE WILL make whole all employees or former
employees for any losses suffered by reason of our
failure to sign and comply with the aforesaid
agreement, retroactive to March 9 , 1974, by pay-
ing to each employee a sum of money equal to the
difference, if any, between his earnings under the
provisions of the aforesaid contract and the
amount he was in fact paid , with interest at 6
percent per annum.
UTILITY TREE SERVICE, INC