Wanex Electrical Services

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 111 (N.L.R.B. 2002)

WANEX ELECTRICAL SERVICES 1
Wanex Electrical Services, Inc. and International
Brotherhood of Electrical Workers, Local Union
313. Case 5–CA–30202
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This case is before the National Labor Relations Board
on the General Counsel’s Motion for Summary Judg-
ment. The General Counsel argues that summary judg-
ment is proper because the Respondent failed to file a
legally sufficient answer to the complaint under Board
Rule 102.20. As explained below, we grant the General
Counsel’s motion and find that the Respondent violated
Section 8(a)(5) and (1) of the Act as alleged in the com-
plaint.
Procedural History
Upon a charge filed by the Union on January 29,
2002,1 and an amended charge filed by the Union on
March 11, the General Counsel issued a complaint
against the Respondent on April 29. Copies of the
charge, amended charge, and complaint were properly
served on the Respondent.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) by unilaterally changing employ-
ees’ wages without giving the Union notice and an op-
portunity to bargain, by failing to provide information
requested by the Union, and by engaging in conduct that
constituted a failure to bargain in good faith.2 The com-
plaint also alleges that the Respondent violated Section
8(a)(1) by promulgating a rule prohibiting discussion of
wages and informing employees that discussion of wages
would be a negative factor in their next review, and by
stating in negotiations that bargaining was a waste of
time, that employees did not want the Union, and that the
Respondent was not interested in signing an agreement.
The Respondent’s purported answer is a letter dated
May 10 from Bruce Wanex, the Respondent’s president,
to the Board’s Regional Office. The body of the letter
states in full:

Per your request, the following is our response to
the Union statements: The statements made by the
Union are misrepresentations of the truth. They are
intentionally deceitful and malicious in nature with
the sole purpose to put my company out of business.

1 All dates are in 2002 unless otherwise specified.
2 Because the Respondent allegedly failed and refused to bargain
during the 1-year period following the Union’s certification, the com-
plaint seeks an extension of the certification year in accordance with
Mar-Jac Poultry Co., 136 NLRB 785 (1962).
The Union has repeatedly stated, “You will sign out
[sic] agreement or we will run you out of business.”
It should also be noted that the employees of this
company have repeatedly asked the NLRB to allow
them to decertify the Union as their agent, with no
help from the NLRB.

Before seeking summary judgment, the General Coun-
sel notified the Respondent that it had failed to file an
adequate answer, and gave the Respondent the opportu-
nity to do so. However, the Respondent declined the
opportunity. Specifically, according to undisputed alle-
gations in the Motion for Summary Judgment, the Dep-
uty Regional Attorney for Region 5 sent the Respondent
a letter on June 27. The letter stated that the Regional
Office had not received an answer to the complaint, and
that unless an answer was received by July 5, the General
Counsel would seek summary judgment.
On July 9, the parties held a conference call, in which
President Wanex, Administrative Law Judge Jane Van-
deventer, counsel for the General Counsel, and counsel
for the Union participated. During the call, Wanex stated
that the May 10 letter was his answer to the complaint.
Counsel for the General Counsel stated that the letter was
not an adequate answer under the Board’s Rules and
Regulations. The judge asked Wanex if he would file a
further answer to the complaint, and Wanex said that he
would not. Also on July 9, Deputy Chief Administrative
Law Judge Richard A. Scully issued an Order postponing
the hearing indefinitely to allow the General Counsel to
move for summary judgment on the basis that the Re-
spondent had failed to file an adequate answer. The Or-
der reiterated President Wanex’s statement that the May
10 letter would be the Respondent’s only response to the
complaint.
On July 17, the General Counsel filed a motion to
transfer the case to the Board and for summary judgment.
On July 19, the Board issued an Order transferring the
proceedings to the Board and a Notice to Show Cause
why the Motion for Summary Judgment should not be
granted. On August 6, apparently in response to the No-
tice to Show Cause, the Respondent filed a letter stating
that the Respondent’s current employees wish to decer-
tify the Union and attaching a purported decertification
petition. On August 19, the General Counsel filed a re-
ply brief.3
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
3 Attached to the General Counsel’s reply brief was a copy of an
August 12, 2002 letter sent by the Acting Regional Director to the
Respondent explaining how a decertification election may be initiated.
338 NLRB No. 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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 itself cites Sections
102.20 and 102.21 and affirmatively states that unless an
answer is filed within 14 days of service, all the allega-
tions in the complaint will be considered admitted.
We find that the Respondent’s May 10 letter does not
constitute a proper answer under Section 102.20 of the
Board’s Rules and Regulations. The Board typically has
shown some leniency toward a pro se litigant’s efforts to
comply with procedural rules. See, e.g., Mid-Wilshire
Health Care Center, 331 NLRB 1032, 1033 (2000). In-
deed, “[w]hen a pro se respondent’s answer clearly de-
nies the unfair labor practice allegations of the complaint,
the Board will not grant summary judgment for the Gen-
eral Counsel even if the answer does not address all the
factual allegations of the complaint.” American Gem
Sprinkler Co., 316 NLRB 102, 103 fn. 5 (1995). In the
present case, however, the Respondent’s letter does not
respond to any of the complaint’s factual or legal allega-
tions, but instead makes the general assertion that the
“Union’s statements” are “misrepresentations,” “inten-
tionally deceitful,” and “malicious.” Therefore, even
considering the Respondent’s pro se status, the letter is
legally insufficient to constitute a proper answer.4
We further find that the Respondent has failed to cor-
rect the deficiencies in its answer. Although the Respon-
dent submitted a response to the Notice to Show Cause,
the response does not in any way correct the deficiencies
of the May 10 letter.5
Accordingly, for all these reasons, we find that the Re-
spondent has failed to show good cause and 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, a Delaware cor-
poration with an office and place of business in New
Castle, Delaware, has been engaged in the business of
electrical construction and renovation. During the 12
months preceding issuance of the complaint, the Respon-
dent, in conducting its business operations, purchased

4 The Respondent refused to submit a sufficient answer, despite op-
portunities to do so, and despite having been advised that the General
Counsel considered the May 10 letter to be insufficient under the
Board’s Rules. During the parties’ July 9 conference call, President
Wanex affirmatively stated that the May 10 letter was the only response
the Respondent would submit.
5 Cf. Century Parking, 327 NLRB 21, 22 (1998) (General Counsel’s
Motion for Summary Judgment denied; in response to notice to show
cause, respondent filed an amended answer curing the procedural de-
fects in its initial answer).
and received at its New Castle, Delaware facility materi-
als and supplies valued in excess of $50,000 from other
enterprises located within the State of Delaware, each of
which, in turn, is directly engaged in interstate com-
merce. We find, as stipulated in Case 5–RC–14999, 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
At all material times, Bruce Wanex has held the posi-
tion of president and has been a supervisor and agent of
the Respondent within the meaning of Section 2(11) and
(13) of the Act.
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 electricians and electrician apprentices em-
ployed by Respondent at its New Castle, Delaware
facility;
But excluding all truck drivers, office personnel,
project managers, estimators and supervisors as de-
fined in the Act.

On May 10, 2000, a representation election was con-
ducted in Case 5–RC–14999 among the employees in the
unit. On April 30, 2001, the Union was certified as the
exclusive collective-bargaining representative of the unit.
At all times since April 30, 2001, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
Since about July 29, 2001, the Respondent, through its
employee handbook, has promulgated a rule prohibiting
discussion of wages among its employees and has in-
formed employees that discussion of wages would be a
negative factor in their next review.
Since about September 2001, the Respondent has
made changes in the wages of its employees without
prior notice to the Union, and without affording the Un-
ion an opportunity to bargain with the Respondent re-
garding this conduct or its effects. This subject relates to
wages, hours, and other terms and conditions of em-
ployment of the unit employees and is a mandatory sub-
ject for the purpose of collective bargaining.
Since about October 23, 2001, the Union, by Danny
Savina and John Patrick Healy, has orally requested that
the Respondent furnish the Union with the following
information: cost of benefits for each unit employee,
benefit plan documents, and benefit plan summaries.
This information is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collec-
WANEX ELECTRICAL SERVICES 3
tive-bargaining representative of the unit. Since about
October 23, 2001, the Respondent has failed and refused
to furnish the Union with the requested information.
At various times during July 2001 through January
2002, the Respondent and the Union met for the purposes
of collective bargaining with respect to wages, hours, and
other terms and conditions of employment of the unit.
During that period of time, the Respondent engaged in
the following conduct: (a) it refused to meet and bargain
in a meaningful manner; (b) it stated in bargaining ses-
sions, through President Bruce Wanex, that employees
did not want the Union, that bargaining was a waste of
time, and that the Respondent was not interested in sign-
ing an agreement; (c) it stated in bargaining sessions,
again through President Wanex, that the Respondent
would continue negotiating for the rest of the year, but it
was a waste of time; (d) it failed to make proposals or
counterproposals; and (e) it refused to meet after January
22, 2002, for the purpose of negotiating a contract. By
its overall conduct, including the conduct described
above, the Respondent has failed and refused to bargain
in good faith with the Union as the exclusive collective-
bargaining representative of the unit.
CONCLUSIONS OF LAW
1. By promulgating a rule prohibiting discussion of
wages among employees and informing employees that
discussion of wages would be a negative factor in their
next review; by making statements in bargaining sessions
that bargaining is a waste of time, employees do not want
the Union, and the Respondent is not interested in sign-
ing an agreement; and by the remaining acts and conduct
described above, the Respondent has been interfering
with, restraining, and coercing its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By unilaterally changing employees’ wages without
giving the Union notice and an opportunity to bargain
over the proposed changes, by failing and refusing to
furnish the Union with requested information that is nec-
essary and relevant to the performance of its duties as the
exclusive collective-bargaining representative of the unit,
and by engaging in conduct that constitutes a failure and
refusal to meet and bargain in good faith with the Union,
the Respondent has engaged in unfair labor practices
affecting commerce 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 violated Section
8(a)(5) and (1) of the Act, 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 violated Section 8(a)(1) by
promulgating a rule prohibiting discussion of wages
among employees and informing employees that discus-
sion of wages would be a negative factor in their next
review, we shall order the Respondent to rescind the rule,
remove it from the employee handbook, and advise em-
ployees, in writing, that the rule is no longer being main-
tained and that discussion of wages will not be a negative
factor in their next review.
Having found that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing unit employees’
wages without giving the Union notice and opportunity
to bargain, we shall order the Respondent to rescind the
unlawful unilateral changes and to make whole the bar-
gaining unit employees by remitting all wages, plus in-
terest, that would have been paid absent such unilateral
changes from September 2001 until the Respondent ne-
gotiates in good faith with the Union to agreement or to
impasse. Backpay shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987). To the extent that the unlawful unilateral
changes implemented by the Respondent may have im-
proved the wages of unit employees, our Order shall not
be construed as requiring or authorizing the Respondent
to rescind such improvements unless requested to do so
by the Union.
Having found that the Respondent violated Section
8(a)(5) and (1) by failing and refusing to furnish
information that is relevant and necessary to its role as
the exclusive bargaining representative, we shall order
the Respondent to furnish the Union with the requested
information in a timely manner.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to bar-
gain in good faith with the Union for a collective-
bargaining agreement, we shall order the Respondent to
do so on request and, if an understanding is reached, to
embody that understanding in a signed agreement.
Finally, because the Respondent’s failure and refusal
to bargain in good faith precluded the Union from engag-
ing in the collective-bargaining process during the Un-
ion’s initial certification year, we find that a 1-year ex-
tension of the certification year, running from the date
the Respondent begins to bargain in good faith, is neces-
sary to effectuate the purposes of the Act and to allow
the Union a reasonable period of time for good-faith bar-
gaining, free from the influences of the unfair labor prac-
tices previously committed by the Respondent. See, e.g.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
Burrows Paper Corp., 332 NLRB 82 fn. 3 (2000); Mar-
Jac Poultry Co., 136 NLRB 785 (1962).
ORDER
The National Labor Relations Board orders that the
Respondent, Wanex Electrical Services, Inc., New Cas-
tle, Delaware, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Promulgating a rule prohibiting discussion of
wages among employees and informing employees that
discussion of wages will be a negative factor in their next
review.
(b) Unilaterally changing the wages of employees in
the following appropriate unit (the unit) without giving
the International Brotherhood of Electrical Workers, Lo-
cal Union 313, notice and an opportunity to bargain over
the proposed change:

All electricians and electrician apprentices em-
ployed by Respondent at its New Castle, Delaware
facility;
But excluding all truck drivers, office personnel,
project managers, estimators and supervisors as de-
fined in the Act.

(c) Failing and refusing to provide the Union with re-
quested information that is necessary for and relevant to
the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit.
(d) Failing and refusing to meet and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of employees in the unit.
(e) Failing to make proposals or counterproposals to
the Union.
(f) Stating in bargaining sessions that bargaining is a
waste of time, employees do not want the Union, and the
Respondent is not interested in signing an agreement.
(g) 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) Rescind the rule prohibiting discussion of wages
among employees, remove the rule from the employee
handbook, and advise employees, in writing, that the rule
is no longer being maintained and that discussion of
wages will not be a negative factor in their next review.
(b) Rescind the changes made in unit employees’
wages, and make whole the unit employees by remitting
all wages, plus interest, that would have been paid absent
such unilateral changes from September 2001, until the
Respondent negotiates in good faith with the Union to
agreement or to impasse. To the extent that the unlawful
unilateral changes implemented by the Respondent may
have improved the wages of unit employees, this Order
shall not be construed as requiring or authorizing the
Respondent to rescind those improvements unless re-
quested to do so by the Union.
(c) Furnish the Union in a timely manner the informa-
tion requested regarding cost of benefits for each unit
employee, benefit plan documents, and benefit plan
summaries.
(d) On request, meet and bargain in good faith with the
Union for an initial collective-bargaining agreement,
reducing to writing any agreement reached as a result of
such bargaining. The Union’s certification year shall be
extended for 1 year from the commencement of bargain-
ing, as set forth in the remedy section of the decision.
(e) 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
electronic copy of such records if stored in electronic
form, 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 New Castle, Delaware, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 2001.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

6 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.”
WANEX ELECTRICAL SERVICES 5
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 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 promulgate a rule prohibiting discussion
of wages among employees, and WE WILL NOT inform
employees that discussion of wages will be a negative
factor in their next review.
WE WILL NOT unilaterally change the wages of employ-
ees in the following appropriate unit without giving the
International Brotherhood of Electrical Workers, Local
Union 313, notice and an opportunity to bargain over the
proposed changes:

All electricians and electrician apprentices em-
ployed by us at our New Castle, Delaware facility;
But excluding all truck drivers, office personnel,
project managers, estimators and supervisors as de-
fined in the Act.

WE WILL NOT fail and refuse to provide the Union with
requested information that is necessary for and relevant
to the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit.
WE WILL NOT fail and refuse to meet and bargain in
good faith with the Union as the exclusive collective-
bargaining representative of employees in the unit.
WE WILL NOT fail to make proposals or counterpropos-
als to the Union.
WE WILL NOT state in bargaining sessions that bargain-
ing is a waste of time, that employees do not want the
Union, and that we are not interested in signing an
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 rescind the rule prohibiting discussion of
wages among employees, remove the rule from the em-
ployee handbook, and inform employees, in writing, that
the rule is no longer being maintained and that discussion
of wages will not be a negative factor in their next re-
view.
WE WILL rescind the changes made in unit employees’
wages, and make whole the unit employees by remitting
all wages, plus interest, that would have been paid absent
such unilateral changes from September 2001, until we
negotiate in good faith with the Union to agreement or to
impasse. To the extent that the unlawful unilateral
changes we implemented may have improved the wages
of unit employees, we will not rescind those improve-
ments unless requested to do so by the Union.
WE WILL furnish the Union in a timely manner the in-
formation it requested regarding cost of benefits for each
unit employee, benefit plan documents, and benefit plan
summaries.
WE WILL meet and bargain in good faith with the Un-
ion, on request, for an initial collective-bargaining
agreement, reducing to writing any agreement reached as
a result of such bargaining. The Union’s certification
year shall be extended for 1 year from the commence-
ment of bargaining.

WANEX ELECTRICAL SERVICES, INC.