Electri-Tech, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1992

306 N.L.R.B. 707 (N.L.R.B. 1992)

707
306 NLRB No. 138
ELECTRI-TECH, INC.
1 The Respondents did not file an answer to the December 20,
1991 amendment to the complaint. By letters from their attorneys
dated December 20 and 23, 1991, respectively, Electri-Tech and
Electric One advised the Regional Director for Region 7 that they
wished to withdraw the answers filed in this case, and further
waived ‘‘any time limits in the Board’s Rules and Regulations per-
taining to the filing of a motion for summary judgment with the
Board.’’ The Respondents’ withdrawal of their answers has the same
effect as a failure to file an answer. Maislan Transport, 274 NLRB
529 (1985).
2 The commerce data and the unit description in the complaint sug-
gest that Electric One and Electri-Tech are construction industry em-
ployers subject to the provisions of Sec. 8(f) of the Act. However,
we are unable to determine from the complaint or from the docu-
ments submitted by the General Counsel in support of the motion
whether the bargaining relationship between the Respondents and the
Union was established pursuant to Sec. 8(f) or pursuant to the
Union’s showing of Sec. 9(a) majority support. Under John Deklewa
& Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local
3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), a union signatory to an
8(f) contract attains only limited 9(a) status confined to the terms of
the contract. The burden of showing that a bargaining relationship
between a union and a construction industry employer is not an 8(f)
relationship is on the party asserting 9(a) status. Deklewa, supra at
1385 fn. 41. In the absence of an allegation that the bargaining rela-
tionship was based on a showing of a 9(a) majority support, we find
that relationship was entered into pursuant to Sec. 8(f) and that the
Union is, therefore, the limited Sec. 9 representative of the Respond-
ents’ employees for the period covered by the contract.
Electri-Tech, Inc. and Local 58, International
Brotherhood of Electrical Workers, AFL–CIO
Electric One, Inc. and Local 58, International
Brotherhood of Electrical Workers, AFL–CIO.
Cases 7–CA–31773 and 7–CA–31855
March 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon charges filed by the Union on April 15, 1991
(amended May 23, 1991), in Case 7–CA–31773, and
on May 6, 1991, in Case 7–CA–31855, the General
Counsel of the National Labor Relations Board on
June 12, 1991, consolidated the cases and issued a
complaint (amended December 20, 1991) alleging that
Electri-Tech is the alter ego of, and a single employer
with, Electric One (jointly referred to as the Respond-
ents), and that they violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondents have failed to file an answer.1
On January 29, 1992, the General Counsel filed a
Motion for Summary Judgment. On February 7, 1992,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondents 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
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. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the Complaint shall be deemed to be admitted
true and may be so found by the Board.’’ In the ab-
sence of good cause being shown for the failure to file
a timely answer, we grant the General Counsel’s Mo-
tion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents are Michigan corporations with an
office and place of business at 13155 Cloverdale, Suite
A, Oak Park, Michigan, the only facility involved in
this proceeding, where they are engaged in the elec-
trical contracting business. During the 12-month period
ending May 30, 1991, a representative period, the Re-
spondents each purchased and received at their various
Michigan jobsites products, goods, and materials val-
ued in excess of $50,000 from other enterprises, in-
cluding Brightmore Electric Company, that are located
within the State of Michigan, which enterprises in turn
received the products, goods, and materials directly
from points and places outside the State of Michigan.
We find that the Respondents are employers engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On or about October 4, 1988, Electric One recog-
nized the Union as the exclusive collective-bargaining
representative of its employees in an appropriate unit,
such recognition having been embodied in a letter of
assent dated October 4, 1988, and in successive collec-
tive-bargaining agreements, the most recent of which is
effective by its terms for the period of June 7, 1989,
to May 31, 1992.2 The bargaining unit consists of:
All full-time and regular part-time employees em-
ployed by the Respondents performing electrical
construction work within the jurisdiction of the
Charging Union on all present and future jobsites;
but excluding all guards and supervisors as de-
fined in the Act.
On or about October 1, 1990, Electri-Tech was es-
tablished as a disguised continuance of Electric One.
At all relevant times, the Respondents have been affili-
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ated business enterprises with common family owner-
ship, common family officers, common management
and common supervision, and have formulated and ad-
ministered a common labor policy affecting employees
of both operations. Both entities have shared common
premises and facilities, have provided services for each
other, and have interchanged personnel. The complaint
alleges, and we find, that at all relevant times the Re-
spondents have been alter egos and a single employer
within the meaning of the Act.
Beginning on or about October 15, 1990, Electri-
Tech transferred work and contracted jobs from Elec-
tric One to itself in order to avoid Electric One’s con-
tractual obligations to the Union and, since on or about
the same date, has failed and refused to recognize the
Union as the bargaining representative of the unit em-
ployees, and to abide by the terms of the collective-
bargaining agreement with the Union covering those
employees. By engaging in such conduct, the Respond-
ents violated Section 8(a)(1), (3), and (5) of the Act,
as alleged.
On or about March 12, 1991, and again on or about
April 15, 1991, the Union requested Electric One to
provide it with information concerning its alter ego re-
lationship with Electri-Tech, which the Union contends
is necessary and relevant to the performance of its role
as the collective-bargaining representative of the unit
employees, but, since on or about the same date, Elec-
tric One has refused to do so. By refusing to provide
the Union with the requested information, the Re-
spondents violated Section 8(a)(1) and (5) of the Act,
as alleged.
CONCLUSIONS OF LAW
1. The Respondents Electri-Tech and Electric One
are alter egos and a single employer within the mean-
ing of the Act.
2. By transferring work and contracting jobs from
Electric One to Electri-Tech in order to avoid their
contractual obligation to the Union, and by refusing to
recognize the Union as the exclusive collective-bar-
gaining representative of the unit employees and refus-
ing to abide by the terms of the collective-bargaining
agreement, the Respondents have violated Section
8(a)(1), (3), and (5) of the Act.
3. By refusing to provide the Union with informa-
tion concerning the alter ego relationship between
Electri-Tech and Electric One that is necessary and rel-
evant to the performance of its function as the exclu-
sive collective-bargaining representative of the unit
employees, the Respondents have violated Section
8(a)(1) and (5) of the Act.
The Respondents have engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondents shall be ordered to recognize the
Union as the exclusive collective-bargaining represent-
ative of the unit employees and to honor and abide by
the terms of the collective-bargaining agreement with
the Union.
We shall also order the Respondents to make whole
unit employees for any loss of wages or benefits suf-
fered by them because of the Respondents’ refusal to
abide by the terms of the collective-bargaining agree-
ment with the Union, and as a result of the transfer of
work and contracting jobs from Electric One to its
alter ego, Electri-Tech, as set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
The Respondents shall further be required, upon re-
quest, to furnish the Union with information requested
on March 12 and April 15, 1991.
ORDER
The National Labor Relations Board orders that the
Respondents, Electri-Tech, Inc. and Electric One, Inc.,
Oak Park, Michigan, alter egos and a single employer,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize Local 58, International
Brotherhood of Electrical Workers, AFL–CIO as the
limited exclusive collective-bargaining representative
of the employees in the appropriate unit and refusing
to abide by the terms of the collective-bargaining
agreement with the Union. The appropriate unit con-
sists of:
All full-time and regular part-time employees em-
ployed by the Respondents performing electrical
construction work within the jurisdiction of the
Charging Union on all present and future jobsites;
but excluding all guards and supervisors as de-
fined in the Act.
(b) Transferring work and contracting jobs in order
to avoid their bargaining obligation with the Union.
(c) Refusing to provide the Union with information
that is necessary and relevant to the performance of the
Union’s role as exclusive collective-bargaining rep-
resentative of the unit employees.
(d) 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 necessary to
effectuate the policies of the Act.
709ELECTRI-TECH, INC.
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
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.’’
(a) Recognize the Union as the limited exclusive
collective-bargaining representative of the unit employ-
ees, and abide by all the terms and conditions of the
collective-bargaining agreement with the Union.
(b) Make whole unit employees for any losses in
wages or benefits they may have suffered because of
the Respondents’ refusal to abide by the terms of the
collective-bargaining agreement, and resulting from the
transfer of work and contracting jobs from Electric
One to Electri-Tech, as set forth in the remedy section
of this decision.
(c) On request, provide the Union with the informa-
tion requested on March 12 and April 15, 1991, that
is relevant and necessary to the Union’s performance
of its function as the limited exclusive collective-bar-
gaining representative of the unit employees.
(d) Preserve and, on 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
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at the Respondents’ facility in Oak Park,
Michigan, copies of the attached notice marked ‘‘Ap-
pendix.’’3 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed
by the Respondents’ authorized representative, shall be
posted by the Respondents immediately upon receipt
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 Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize Local 58, Inter-
national Brotherhood of Electrical Workers, AFL–CIO
as the limited exclusive collective-bargaining rep-
resentative of our employees in the appropriate bar-
gaining unit, and WE WILL NOT refuse to abide by the
terms of our collective-bargaining agreement with the
Union. The appropriate bargaining unit consists of:
All full-time and regular part-time employees em-
ployed by the Respondents performing electrical
construction work within the jurisdiction of the
Charging Union on all present and future jobsites;
but excluding all guards and supervisors as de-
fined in the Act.
WE WILL NOT transfer work or contract jobs in order
to avoid our bargaining obligation with the Union.
WE WILL NOT refuse to provide the Union with in-
formation that is necessary and relevant to the per-
formance of its function as exclusive collective-bar-
gaining representative of the unit employees.
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 recognize the Union as the exclusive col-
lective-bargaining representative of our unit employees,
and WE WILL abide by the terms of our collective-bar-
gaining agreement with the Union.
WE WILL make whole unit employees for any loss
in wages or benefits they may have suffered because
of our refusal to abide by the terms of our collective-
bargaining agreement with the Union, and resulting
from our unlawful transfer of work and contracting
jobs, with interest.
WE WILL, on request, furnish the Union with the in-
formation requested on March 12 and April 15, 1991,
that is necessary and relevant to the Union’s perform-
ance of its role as the limited exclusive collective-bar-
gaining representative of the unit employees.
ELECTRI-TECH, INC. AND ELECTRIC
ONE, INC.