Willis Electric

National Labor Relations Board - Board Decisions

Apr 24, 1984

269 N.L.R.B. 1145 (N.L.R.B. 1984)

WILLIS ELECTRIC
Willis Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union No. 669,
AFL-CIO. Case 8-CA-14988
24 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon a charge filed 8 July 1981 and an amended
charge filed 14 September 1981,1 in Case 8-CA-
14988, by the Union and duly served on the Re-
spondent the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 8, issued a complaint and notice of
hearing 23 September against the Respondent alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Copies of the
charges and complaint were duly served on the
parties to this proceeding. The Respondent filed its
answer to the complaint 29 September.
Upon a charge filed 20 November, in Case 8-
CA-15354, by the Union and duly served on the
Respondent, the General Counsel, by the Regional
Director for Region 8, 28 January 1982 issued and
duly served on the Respondent 2 February 1982 an
order consolidating cases, and an amended consoli-
dated complaint and notice of consolidated hearing
in Cases 8-CA-14988 and 8-CA-15354, alleging
that the Respondent violated Section 8(a)(5) and
(I) of the Act. The Respondent duly filed its
answer to the amended consolidated complaint.
On 28 July 1982 the Acting Regional Director
for Region 8 issued an order severing cases, with-
drawing complaint, and dismissing charge and an
order designating date, time, and place of hearing,
in which he severed Case 8-CA-15354 from Case
8-CA-14988; withdrew the allegations in Case 8-
CA-15354, more specifically paragraph 9 and the
reference to paragraph 9 in the amended consoli-
dated complaint; and dismissed the charge in Case
8--CA--15354. On 27 September 1982 the Respond-
ent filed an amended answer to the consolidated
complaint.
With respect to the unfair labor practices, the
amended complaint alleges in substance that the
Respondent, 17 May 1979, executed letters of
assent authorizing the National Electrical Contrac-
tors Association, Western Ohio Chapter (the Asso-
ciation) as its collective-bargaining representative
and that since 17 May 1979 the Union has been the
representative of the Respondent's employees in
the following appropriate unit:
I All dates herein are 1981, unless otherwise indicated.
269 NLRB No. 192
All journeymen, wiremen, apprentices and
foremen of members of the National Electrical
Contractors Association, Western Ohio Chap-
ter, and of the employers who have authorized
this Association to bargain for them, engaged
in electrical contracting, but excluding all
office clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
The amended consolidated complaint further al-
leges that I November 1978 the Union and the As-
sociation executed a collective-bargaining agree-
ment covering inside electrical work and 1 Novem-
ber 1979 executed a second collective-bargaining
agreement covering residential work and that these
agreements remained in full force until 30 Novem-
ber 1981. The amended consolidated complaint al-
leges that 15 January 1981 the Respondent with-
drew recognition from the Union and repudiated
its contracts with the Union.2
The Respondent in its amended answer admits
certain of the factual allegations outlined above but
denies that they constitute unfair labor practices
within the meaning of Section 8(a)(1) and (5).
Thus, the Respondent denies that it refused to bar-
gain with and recognize the Union but admits, de-
spite the fact that such has not been alleged, that it
used nonunion employees without first requesting
referrals from the Union in violation of the agree-
ment. The Respondent asserts as an affirmative de-
fense that it failed to request referrals from the
Union, as required by the collective-bargaining
agreement coXering inside work, because of eco-
nomic necessity in order to avoid paying the rates
and benefits required by that collective-bargaining
agreement.
On 28 October 1982 the General Counsel filed a
Motion for Summary Judgment, and a brief in sup-
port, with exhibits attached. The General Counsel
contends that, in view of the factual admissions
contained in the Respondent's amended answer, the
pleadings raise no issues of fact which would re-
quire a hearing. He, therefore, moves for summary
judgment, and requests that the Board find the alle-
gations of the amended consolidated complaint to
be true and issue an appropriate Decision and
Order. Subsequently, on 3 November 1982, the
Board issued an order transferring the proceeding
to the Board and Motion to Show Cause why the
' The 28 July 1982 order severing cases stated that the Respondent ef-
fectively and timely withdrew from the multiemployer bargaining group
terminating to obligation to bargain on a multiemployer basis. According-
ly, the General Counsel dismissed the charges in Case 8-CA-15354, with-
drew that allegation in the complaint, i.e., par. 9 referred to above, and
found no violation by the Respondent thereby.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's Motion for Summary Judgment
should not be granted. In response thereto, the Re-
spondent filed an affidavit in opposition to Motion
for Summary Judgment wherein it admits that
commencing 15 January 1981 it used a nonunion
employee to perform inside (commercial) electrical
work in the geographic area covered by the collec-
tive-bargaining agreement between the Union and
the Association without first requesting a referral
from the Union as required under the agreement. 3
The Respondent further states that its motive for
not requesting such referrals from the Union was
an economic necessity as it had a good-faith belief
that it could not competitively operate nor com-
petitively bid for contracts unless it avoided paying
the wages and benefits required by the collective-
bargaining agreement.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the Motion for Summary Judgment
Repudiation of the Contracts
As noted more fully above, the Respondent exe-
cuted letters of assent authorizing the Association
to be its collective-bargaining representative, and
since 17 May 1978 the Union has represented the
Respondent's employees in the appropriate unit de-
scribed above. On 1 November 1978 the Union and
the Association executed a collective-bargaining
agreement covering inside electrical work, to
remain in effect until 30 November 1981, and on 1
November 1979 the Union and the Association exe-
cuted a collective-bargaining agreement covering
residential work, to remain in effect until 30 No-
vember 1981. The Respondent on 15 January 1981
sent a letter to the Union terminating its letter of
assent and its collective-bargaining agreements.4
The Respondent admits that after 15 January 1981
it performed outside (commercial) electrical work
without first requesting a referral from the Union
as required under the agreement. The Respondent
contends that it did so out of the economic necessi-
ty as it had a good-faith belief that it could not
competitively operate or bid for the contracts
unless it avoided paying the wages and benefits
s As stated before, such failure to request a referral has not been al-
leged to violate the Act, and we make no finding whether or not it
would violate the Act had it been alleged.
4 As noted above, the Acting Regional Director, in his 28 July 1982
order severing cases, notes this termination of assent by the Respondent
of multiemployer bargaining authority abrogated its obligation to bargain
on a multiemployer basis and did not violate the Act. However, notwith-
standing the Respondent's timely withdrawal from the multiemployer
bargaining unit, the collective-bargaining agreements with the Union
could not be and were not thereby voided. The collective-bargaining
agreement remained in full force and effect, and the Respondent re-
mained legally bound thereby.
under the collective-bargaining agreement. The Re-
spondent denies that it violated Section 8(a)(5) and
(1) of the Act by repudiating the collective-bar-
gaining agreement.
We find no merit in the Respondent's assertions.
It is well established that an employer acts in dero-
gation of its bargaining obligation under Section
8(d) of the Act when, during the life of a collec-
tive-bargaining agreement to which it is bound, it
unilaterally repudiates terms and conditions of em-
ployment contained in the agreement. Morelli Con-
struction Co., 240 NLRB 1190 (1979). It is equally
well established that economic necessity is not cog-
nizable as a defense to the unilateral repudiation of
a collective-bargaining agreement. Id. We therefore
find that the Respondent has not raised any issue
which is properly litigable regarding this unfair
labor practice allegation. Accordingly, we grant
the Motion for Summary Judgment with respect to
the Respondent's repudiation to the collective-bar-
gaining agreements.
Withdrawal of Recognition
In his complaint and Motion for Summary Judg-
ment, the General Counsel alleges that the Re-
spondent withdrew recognition of the Union and
refused to recognize the Union as the exclusive col-
lective-bargaining representative of its employees
in the appropriate unit described above. The Re-
spondent in its answer to the complaint and amend-
ed complaint denies that it refused to recognize or
that it withdrew recognition from the Union as the
representative of its employees. Furthermore, in its
various responses herein the Respondent indicates
that it recommended requests for referrals in the
appropriate unit. In its 3 February 1982 answer to
the amended consolidated complaint the Respond-
ent admits that the Union about 17 May 1979 was
the exclusive representative of the employees in the
unit involved herein but denies the remaining alle-
gations of the complaint. However, in its 27 Sep-
tember 1982 amended answer to the amended con-
solidated complaint, the Respondent admits the
Union was and is the exclusive representative of its
employees in the appropriate unit.
As noted above, the Acting Regional Director,
by his 28 July 1982 order, withdrew the allegation
that the Employer's 15 January 1981 letter termi-
nating its multiemployer bargaining authority vio-
lated the Act. However, the General Counsel con-
tends that with this letter the Respondent with-
drew recognition from the Union in violation of
the Act. Accordingly, as a genuine issue of fact
exists as to the Respondent's alleged withdrawal of
recognition from the Union, we remand the instant
case to the Regional Director for Region 8 for the
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WILLIS ELECTRIC
sole purpose of arranging a hearing before an ad-
ministrative law judge to determine whether the
Respondent unlawfully withdrew recognition of
the Union and thereby violated Section 8(a)(5) and
(1) of the Act.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with its
principal office and place of business located in
Urbana, Ohio, where it is engaged in electrical
contracting. Annually, in the course and conduct
of its business, it derives gross revenues in excess of
$50,000 from services which it performs for other
enterprises located in the State of Ohio, each of
which annually in the course and conduct of its re-
spective business operations receives goods valued
in excess of $50,000 directly from points located
outside the State of Ohio.
We find, on the basis of the foregoing, that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
1. The unit
The following employees of the Respondent con-
stitute a unit of employees appropriate for collec-
tive-bargaining purposes within the meaning of
Section 9(b) of the Act:
All journeymen, wiremen, apprentices and
foremen of members of the National Electrical
Contractors Association, Western Ohio Chap-
ter, and of the employers who have authorized
this Association to bargain for them, engaged
in electrical contracting, but excluding all
office clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
2. The bargaining history
On 17 May 1979 the Respondent executed letters
of assent authorizing the National Electrical Con-
tractors Association, Western Ohio Chapter (the
Association), as its collective-bargaining representa-
tive. Said Association, an organization of contrac-
tor members, has as one of its purposes, inter alia,
to enter into collective-bargaining negotiations
with unions such as the International Brotherhood
of Electrical Workers, AFL-CIO, whose members
are employed by contractor members of the Asso-
ciation, on matters pertaining to wages, hours, and
other terms and conditions of employment, and to
execute such collective-bargaining agreements by,
for, and on behalf of said members of the Associa-
tion and nonmembers who have given it authoriza-
tion to so act.
Since 17 May 1979, and continuing to date, the
Union has been the exclusive representative of the
Respondent's employees in the unit described
above, and by virtue of Section 9(a) of the Act has
been and is now the exclusive representative of all
the employees in said unit for the purpose of col-
lective bargaining with respect to pay, wages,
hours of employment, and other terms and condi-
tions of employment.
On 1 November 1978 the Union and the Associa-
tion executed a collective-bargaining agreement
covering inside electrical work, which, by its
terms, remains in full force and effect from 1 No-
vember 1978 through 30 November 1981. On I No-
vember 1979 the Union and the Association execut-
ed a collective-bargaining agreement covering resi-
dential electrical work, which by its terms remains
in full force and effect from 1 November 1979
through 30 November 1981.
B. Repudiation of the Contracts
About 15 January 1981 by sending a letter termi-
nating the collective-bargaining agreements with
the Union, the Respondent has unilaterally repudi-
ated its contracts with the Union. Accordingly, we
find that the Respondent, by the acts and conduct
set forth herein, did refuse, and is refusing, to bar-
gain collectively in good faith with the Union as
the exclusive representative of the employees in the
unit found appropriate, and has engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act, we shall order that
it take certain affirmative action designed to effec-
tuate the policies of the Act.
We have found that the Respondent has unilater-
ally repudiated its contracts with the Union and
has thereby refused to bargain collectively in good
faith with the Union as the exclusive representative
of its employees in the appropriate unit and has
thereby violated the Act. We shall order the the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to cease and desist from refusing to
bargain collectively with the Union by repudiating
its contracts with the Union and to give effect to
the collective-bargaining agreements which we
have found it unlawfully repudiated.
CONCLUSIONS OF LAW
The Respondent has since 15 January 1981 failed
and refused to bargain collectively with the Union
as the exclusive representative of the employees in
the unit described herein in that the Respondent,
on and since that date, unilaterally repudiated the 1
November 1978 and 1 November 1979 agreements
then in force between it and the Union which cov-
ered those employees and the Respondent thereby
violated Section 8(a)(1) and (5) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Willis Electric, Inc., Urbana,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively
with International Brotherhood of Electrical
Workers, Local Union No. 669, AFL-CIO, by uni-
laterally repudiating the 1 November 1978 and 1
November 1979 agreements involving the employ-
ees in the following appropriate unit:
All journeymen, wiremen, apprentices and
foremen of members of the National Electrical
Contractors Association, Western Ohio Chap-
ter, and of the employers who have authorized
this Association to bargain for them, engaged
in electrical contracting, but excluding all
office clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
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 which
the Board finds will effectuate the policies of the
Act.
(a) Give full force and effect to the 1 November
1978 and 1 November 1979 collective-bargaining
agreements with International Brotherhood of
Electrical Workers, Local No. 669, AFL-CIO.
(b) Post at each of its locations where unit em-
ployees work copies of the attached notice marked
"Appendix." 5 Copies of the notice, on forms pro-
a 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 Judgment
vided by the Regional Director for Region 8, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the proceeding is
remanded to the Regional Director for Region 8
for the purposes of arranging a hearing before an
administrative law judge to determine whether or
not the Respondent withdrew recognition and re-
fused to recognize the Union as the exclusive bar-
gaining representative of its employees in the unit
found appropriate herein as alleged in the com-
plaint.
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collec-
tively with International Brotherhood of Electrical
Workers, Local Union No. 669, AFL-CIO, by uni-
laterally repudiating the 1 November 1978 and 1
November 1979 collective-bargaining agreements
involving employees in the following appropriate
unit:
All journeymen, wiremen, apprentices and
foremen of members of the National Electrical
Contractors Association, Western Ohio Chap-
ter, and of the employers who have authorized
this Association to bargain for them, engaged
in electrical contracting, but excluding all
office clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
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WILLIS ELECTRIC
WE WILL give full force and effect and to the 1
November 1978 and 1 November 1979 collective-
bargaining agreements with International Brother-
hood of Electrical Workers, Local Union No. 669,
AFL-CIO.
WILLIS ELECTRIC, INC.
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