Nelson Electric

National Labor Relations Board - Board Decisions

Mar 28, 1979

241 N.L.R.B. 545 (N.L.R.B. 1979)

NELSON ELECTRIC
Nelson Electric, Gary C. Nelson,' Inc., and Gary C.
Nelson Electric and International Brotherhood of
Electrical Workers, Local Union No. 669, AFL-
CIO. Case 8-CA-11 183
March 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On November 24, 1978, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Nelson
Electric and its alter egos, Gary C. Nelson Electric
and Gary C. Nelson, Inc., Mechanicsburg, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
The Administrative Law Judge amended the complaint subsequent to
the hearing to include Gary C, Nelson Electric as a party Respondent
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB
544 (1950), enfd. 188 F.2d 362 3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings
IThe Administrative Law Judge recommended the Respondents be or-
dered to pay various employee benefit funds amounts, with interest, due
under the applicable collective-bargaining agreements. Because the provi-
sions of employee benefit fund agreements are variable and complex, the
Board does not provide at the adjudicatory stage of a proceeding for the
addition of interest at a fixed rate on unlawfully withheld fund payments,
We leave to the compliance stage the question whether Respondent must
pay any additional amounts into the benefit funds in order to satisfy our
"make-whole" remedy. These additional amounts may be determined, de-
pending upon the circumstances of each case, by reference to provisions in
the documents governing the funds at issue and, where there are no govern-
ing provisions, to evidence of any loss directly attributable to the unlawful
withholding action, which might include the loss of return on investment of
the portion of funds withheld, additional administrative costs, etc., but not
collateral losses. Merryweather Optical Co., 240 NLRB No. 169 (1979).
1. Delete the words "with interest" from para-
graph 2(c).
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPEN DIX
NOTICE To EMPL()YFES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act. We have been ordered to take certain steps to
correct our violations and have been ordered to post
this notice.
The National Labor Relations Act gives all em-
ployees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from doing any or all of these
things.
WE WILL NOT refuse to recognize that Nelson
Electric, Gary C. Nelson Electric, and Gary C.
Nelson, Inc., are bound by the terms of a collec-
tive-bargaining agreement, effective as of No-
vember 1, 1976, by and between Western Ohio
Chapter, National Electrical Contractors Associ-
ation, and International Brotherhood of Electri-
cal Workers, Local Union No. 669, AFL-CIO.
and any subsequent agreement between the same
parties until the expiration date of such subse-
quent agreement, during the term of which we
shall have given timely written notice to termi-
nate our authority to the Association to act on
our behalf in collective-bargaining negotiations.
WE WILL NOT refuse to recognize and bargain
with the Union as the representative for purposes
of collective bargaining on behalf of 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 of-
fice clerical employees and professional em-
ployees, guards and supervisors as defined in
the Act.
241 NLRB No. 88
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WII.L NOT repudiate our obligations under
the said agreement entered into between the As-
sociation and the Union, and any future agree-
ments which are binding upon us, and WE WILL
NOT refuse to comply with the terms and condi-
tions thereof.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in your exercise of
any rights guaranteed by the Act.
WE WILL bargain collectively with the Union
by acknowledging that Nelson Electric, Gary C.
Nelson Electric, and Gary C. Nelson, Inc., are
bound by the collective-bargaining agreement ef-
fective November 1, 1976, by the Association
and the Union, and any later agreements, until
their expiration dates, provided that we have not
timely given written notice to the Association
terminating its authority to represent us; WE
WILL recognize and comply with all terms and
conditions of the said agreement or agreements;
and WE WILL recognize the Union as the repre-
sentative for purposes of collective bargaining on
behalf of the employees in the appropriate unit
described above for the terms of said agreements.
WE WILL, jointly and severally, make whole all
employees in the appropriate unit defined above
for any and all loss of wages and benefits they
incurred, together with interest, because of our
illegal refusal to recognize and abide by contrac-
tual terms and conditions and our repudiation of
the agreement with the Union, under which we
are bound.
WE WILL, jointly and severally, pay to the ap-
propriate funds the health and welfare, pension,
apprentice training, and other contributions re-
quired to be paid by the collective-bargaining
agreement or agreements by which we are
bound.
NELSON ELECTRIC, GARY C. NELSON ELEC-
TRIC, AND GARY C. NELSON, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This case was heard before me in Urbana, Ohio, on August
7, 1978. The unfair labor practice charge was filed by Inter-
national Brotherhood of Electrical Workers, Local Union
No. 669, AFL-CIO (Union), on July 18, 1977, and a com-
plaint thereon issued on August 31, 1977, alleging that Nel-
son Electric and Gary C. Nelson, Inc., constitute a single
integrated business enterprise, that they were required to
comply with a certain collective bargaining agreement
which was effective from November , 1976, through Octo-
ber 31, 1978, and that they repudiated the agreement and
withdrew recognition of the Union, all in violation of Sec-
tion 8(a)(1) and (5) of the Act.' The primary issues are:
(I) Are the Respondents subject to the jurisdiction of the
National Labor Relations Board? (2) Are the Respondents
a single integrated business enterprise and are they alter
egos of one another? (3) Are the Respondents required to
recognize the Union, to bargain collectively with it, and to
comply with the subsisting collective bargaining agree-
ment? As set forth below, I answer each of these questions
in the affirmative.
In so doing, I have considered the entire record of the
proceedings before me, including my observation of the de-
meanor of the witnesses, and the briefs filed by the General
Counsel and the Respondents. Accordingly, I make the fol-
lowing:
FINDINGS OF FACT
I. JURISDICTION
Respondents deny that they transact sufficient business
affecting interstate commerce to meet the Board's standards
for asserting jurisdiction. I find, however, that Louella Nel-
son and her husband, Gary C. Nelson, are, and have been
at all times material herein, under the circumstances set
forth infra, individual proprietors doing business under the
trade name and style of Nelson Electric, with their princi-
pal place of business at their home in Mechanicsburg, Ohio,
where they engage in obtaining electrical contracting jobs. I
also find that Gary C. Nelson engaged in the very same
business, at the same location, as the sole proprietor of
Gary C. Nelson Electric. I further find that both Louella
and Gary C. Nelson are officers of Gary C. Nelson, Inc., a
corporation wholly owned by Gary C. Nelson, duly orga-
nized and existing by virtue of the laws of the State of Ohio,
with its original principal office and place of business lo-
cated at the Nelson home in Mechanicsburg, Ohio, where it
is engaged in the same business.
I further find that Nelson Electric, Gary C. Nelson Elec-
tric, and Gary C. Nelson, Inc., are now and have been at all
times material herein employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, based
on the following:
I During the course of the hearing, it was revealed that between the date
that Nelson Electric allegedly ceased doing business and Gary C. Nelson,
Inc., was incorporated, another related firm, Gary C. Nelson Electric, com-
menced operations. No motion to amend the complaint was made during the
hearing. However, General Counsel, in his brief, stated that the complaint
"is hereby amended to include Gary C. Nelson Electric." Of course, under
Section 102.17 of the Board's Rules and Regulations, once the hearing
opened. General Counsel was not empowered as of right to amend the com-
plaint. Accordingly, I treated his statement as a motion to amend and di-
rected Respondents to show cause why the motion should not be granted.
Respondents failed to file any opposition. Indeed, in their original brief sub-
mitted to me, Respondents directed their attention to the propositions that
neither Gary C. Nelson Electric nor Gary C. Nelson, Inc., was a successor
employer or alter ego of Nelson Electric. Because Gary C. Nelson was pres-
ent at all times of the hearing and testified at the hearing, and in light of my
conclusion that he was an integral party to the operation of Nelson Electric,
I find that he was at all times party to this proceeding and that all of his
rights were fully litigated as if he and Gary C. Nelson Electric were named a
party respondent. Accordingly, I grant the General Counsel's motion to add
Gary C. Nelson Electric as a party Respondent herein and as another com-
ponent of the single integrated enterprise alleged in the complaint.
546
NELSON El
(I) Louella Nelson authorized on or about January 14.
1975, the National Electrical Contractors Association,
Western Ohio Chapter (NECA), to act as the collective-
bargaining representative of Nelson Electric;
(2) NECA is an organization consisting of contractor-
members, one of the purposes of which is to enter into col-
lective-bargaining negotiations with unions, such as the
Union herein, whose members are employed by contractor-
members of NECA. on matters pertaining to wages, hours,
and other terms and conditions of employment, and to ex-
ecute such collective-bargaining agreements by, for, and on
behalf of said members of NECA and nonmembers who
have given it authorization to so act:
(3) the members of NECA. either individually or collec-
tively. and/or those employers which authorized NECA to
represent them for the purposes of collective bargaining, in
the course and conduct of their business operations, per-
formed services valued in excess of $50,000 for other enter-
prises which annually, in the course and conduct of their
business, receive goods valued in excess of $50,000 directly
from points located outside the State of Ohio:
(4) the members of NECA, either individually or collec-
tively, and/or those employers which authorized NECA to
represent them for the purposes of collective bargaining are
now, and have been at all times material herein, employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act; 2 and
(5) both Gary C. Nelson Electric and Gary C. Nelson,
Inc. are alter egos of Nelson Electric and constitute a single
integrated employer with Nelson Electric.
II. THE LABOR ORGANIZATION INVOLVED
Respondents admit, and I find, that the Union is now.
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Further. the Respondents admit, and I find, that at all
times material herein,3 and continuing to date, the Union
has been, by virtue of Section 9(a) of the Act, and is now,
the exclusive bargaining representative of all the employees
in the following unit, conceded to be an appropriate unit
within the meaning of Section 9(b) of the Act. for the pur-
pose of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment:
All journeymen, wiremen, apprentices and foremen of
members of the National Electrical Contractors Asso-
ciation, Western Ohio Chapter, 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 employ-
ees, guards and supervisors as defined in the Act.
2The facts and conclusions set forth in subpars. ( I ). (2). (3). and (4) were
admitted by Respondents.
The complaint alleges that the Union has been the bargaining represent-
ative "since on or about June 12. 1977. and continuing to date." The stipula-
tion of the parties adopts that date. Upon review of the entire record. I can
find no relationship between that date and any of the evidence before me. If
the Union was, on June 12. 1977. the bargaining representative of the appro-
priate unit stipulated to. then it was such a bargaining representative at all
times material to the allegations of the complaint. In my opinion. the date
stipulated to was the result of an inadvertent error, and I hereby conform the
stipulation to the evidence before me.
547
III. THE AI.I.EGED UNFAIR LABOR PRACTICE
A. The Formation and Business of Nelson Electric
Gary Nelson was for many years and, since at least June
12, 1974, an electrical worker-a journeyman-wireman--
and a member of the Union. When Gary determined to
commence his own business, he faced two difficulties: (1)
the Union's collective-bargaining agreement prohibited any
owner from working with the tools of the trade;' and (2) the
Union's constitution prohibited any employer in the electri-
cal contracting industry from maintaining active member-
ship in the Union. Both would, Gary thought, result in a
loss of his pension and fringe benefits. On or about June 12.
1974, he discussed these matters with Ivan Johnson, then
business manager of the Union. Johnson advised that Nel-
son's wife, Louella, should be the sole owner of the new
business. Then Gary could work with his tools, there being
no contractual provision to prohibit such conduct, and
could continue his full membership in the Union. because
he was to be treated only as an employee and not as an
owner. On the same day, Gary was "referred" by the Union
to the new firm, Nelson Electric.' Additional employees
were referred by the Union to Nelson Electric on July 31
and September 5, 1974, although there seems to have been
on those dates no collective-bargaining agreement in effect
which required that Nelson Electric obtain its employees
through the Union.
In any event, after Robert M. Rude, the Union's new
business manager, took office in July 1974, he apparently
felt uneasy about his predecessor's advice to Nelson.' As a
result, he wrote to a vice president of the International
Brotherhood of Electrical Workers as follows:
On or about June 12, 1974, Ivan Johnson, our for-
mer Business Manager, called your office for informa-
tion concerning brother Gary Nelson. In order for
Gary to avoid the clause in our contract dealing with a
contractor not working with his tools, he put the busi-
ness in his wife's name and then was referred out to
work for Nelson Electric (his wife's company).
Gary was successful in obtaining several small com-
mercial jobs and completing them. Since that time he
has not had another contract and is now employed by
International Harvester Company as a maintenance
electrician. My question is that: was he legally able to
'Art. III. sec. 5. of the 1976-78 agreement provides. in part, as follows:
"No individual connected with any employing concern as Owner.
Manager, Superintendent. Partner. Officer, or member of a Board of
Directors, shall perform any manual electncal work."
sArt. II. sec. I. of the 1976 78 collective-bargaining agreement provides
that: "The Union shall be the sole and exclusive source of referrals of appli-
cants for employment." Although the agreement in effect on June 12. 1974.
was not introduced in evidence. there was testimony. which I credit. that the
1976-78 agreement did not reflect a substantial change from prior agree-
ments. and some of the old provisions were maintained.
I Rude may have been troubled by the following language of art. Ill of the
same agreement. Sec. 4 provides: "Certain qualifications, knowledge. experi-
ence. and financial responsibility are required of everyone desiring to be an
employer in the Electrical Industry. Therefore, an employer who contracts
for electrical work is a person, firm. or corporation having these qualifica-
tions and maintaining a permanent place of business and a suitable financial
status to meet payroll requirements and employing not less than one jour-
neyman continuously."
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
go into business this way in the first place, and can he
now maintain this business since he is now employed
by International Harvester?
If the other contractors are made aware of this situ-
ation I am sure that they will ask me these questions.
and I would like to be in a position to answer them
properly.
Thereafter. Rude was advised that the suggested proce-
dure was "approved." On January 14. 1975, Louella Nel-
son, as "owner" of' Nelson Electric, executed a "Letter of
Assent A." which provides:
In signing this letter of assent, the undersigned firm
does hereby authorize Western Ohio Chapter.
N.E.C.A. as its collective bargaining representative for
all matters contained in or pertaining to the current
approved Inside Wireman labor agreement between
the Western Ohio Chapter, N.E.C.A. and Local Union
669. IBEW. This authorization, in compliance with the
current approved labor agreement, shall become effec-
tive on the 5th day of December, 1974. It shall remain
in effect until terminated by the undersigned employer
giving written notice to the Western Ohio Chapter.
N.'.C.A. and to the local Union at least one hundred
fifty (150) days prior to the then current anniversary
date of the aforementioned approved labor agreement.
On the same date, Rude also signed the letter, which was
approved by the Union's International Office on January
23. 1975.' The then-subsisting agreement, which became ef-
fective on November , 1974, expired by its terms on Octo-
ber 31, 1976. A new agreement took effect on November I.
1976. and continued in effect until October 31. 1978.8
Nelson Electric transacted its business, apparently with-
out incident, throughout the remainder of 1975 and the
year 1976. Additional referrals of workmen were requested
by Nelson Electric in February, August, November. and
December 1975 and September 1976. and employees were
referred by the Union pursuant to those requests and hired
by Nelson Electric. In accordance with the 1976-78 collec-
tive-bargaining agreement, Nelson Electric was required to
submit monthly payroll reports for the purpose of comput-
ing and forwarding contributions to the National Electrical
Benefit Fund and the Union's Joint Apprentice and Train-
ing Trust Fund. Pension Fund and Health & Welfare
Fund. Nelson Electric submitted reports, all signed by
Louella Nelson. for the months of November 1976 through
February 1977, only one of which reflected that it trans-
acted any business. The report for January 19774 listed two
employees for whom cortributions were made: one was
I he custom and practice has been that a letter of assent need be signed
olis once, upon agreeing to a contract for the first time. If a company
merged into another company and transacted business under a new name,
the nion epected that a new letter would be signed.
I At the time of the hearing herein. the nion and NECA were negotiating
the terms and provisions of a new agreement to become effective on Novem-
her i. 1978.
L.ouella Nelson testified that the report tbr January 1977, which was
mailed hb her on ehruary 13. 1977. was erroneous because the work had
actluall? been performed in December 1976.
Gary Nelson: ° the other was Harold Browning, who had
originally been referred by the Union to Nelson Electric on
August 20. 1975. and hired on August 21, 1975. The report
showed amounts of gross wages paid and rates of contribu-
tions which conformed in almost all respects with the wage
and fringe benefit contribution rates provided for in the
1976 78 collective-bargaining agreement."
In early February 1977, Union Business Manager Rude
became concerned that Gary Nelson had failed to pay his
dues for 4 months. Under the Union's constitution, if a
member is 3 months behind in his dues payments, he no
longer is eligible to receive union benefits and is considered
not to be in good standing; if he is 6 months in arrears, he
is automatically expelled from membership. As a result,
Rude met with Bill Crews, the Union's International Repre-
sentative, and Gary and Louella Nelson at the Nelson
home in an effort to persuade Gary to pay his dues, to
return to good standing, and to remain a member of the
Union. Gary expressed his reluctance to do so because he
was not sure what benefit there was in his union member-
ship. Hie told Rude and the International Representative
that he would think about it.
In the middle of February 1977. Rude had a further con-
versation with Gary' Nelson at the union office. Nelson
stated that Rude had not demonstrated that union member-
ship was any benefit to him and that he would have to think
about remaining in the Union. Nelson further stated that
business was very bad, that he did not think he could make
it as a union contractor, and that the only way he could
remain in business was to go "non-union." Rude suggested
that if business was that bad perhaps Nelson "could just
kind of put the business in limbo for a while," but Gary
indicated that he would probably stay in business and that
he would just have to decide what to do.' 2
Shortly thereafter, on February 24, 1977, Louella Nelson
(on Nelson Electric stationery) wrote to Rude, as follows:
0' The payroll report recites, in part: "No unincorporated proprietor, part-
ner. or corporate officer . . . is included" in the statement of hours worked
and wages earned of all employees subject to employer contributions.
I The contract provided for a journey men's wage rate during the period
from Nosember I, 1976, to May 2, 1977. of$ 10.09 per hour. Gary worked 40
hours and received gross wages of 403.60: Browning worked 15 hours and
received gross wages of S151.35. The gross wages conform with the hourly
rate. One percent of the total gross wages was paid to the Benefit Fund, S.45
per hour was paid to the Health & Welfare Fund. and 5.70 cents per hour
was paid to the Pension Fund. These amounts comply with art. III, sec. 12,
and art. IV, sec. 5. 8. and 9. of the 1976-78 agreement. Although the agree-
ment (art. V, sec. 9) provided that .04 per hour must be contributed to the
Apprentice Fund, Nelson Electric contributed only S.02 per hour. The dis-
crepancy may have been caused by the fact that the report form, revised in
1973, provides that the contribution rate is 5.02 per hour. The figures for
computation of contributions to the Pension and Health & Welfare Funds
are not printed on the report form. I do not believe that the foregoing dis-
crepancy is significant, in light of the compliance by Nelson Electric with the
principal terms of the 1976-78 agreement and the undisputed fact that Nel-
son Electric sought to terminate that agreement after it became effective.
Finally., I note that amounts were reported and paid to the Union as assess-
ments. $4.54 for Browning and $12.11 for Gary. a total of S16.65. Those
amounts represented precisely 3 percent of their gross earnings. In the light
of testimony that the report form provides for dues checkoffs and the con-
tractual provision (art. 11I, sec. 13) stating that working dues shall be on a
"payroll deduction basis' and shall he submitted with Benefit Fund contri-
hutions, I find that such amounts were submitted in accordance with dues
checkoffs signed pursuant to the 1976-78 agreement.
,i Neither Gary nor Louella Nelson. both of whom testified, denied the
substance of these conversations.
548
NELSON ELECTRIC
Dear Bob:
This letter is to give formal notice that Nelson Electric
owned by L. M. Nelson will be terminating the agree-
ment with Local 669 I.B.E.W.
Thanks, sincerely, Bob for all the help you've given us.
The Union immediately filed a grievance with a labor-
management committee about the alleged unlawful use of
the Union's referral system and nonpayment of fringe bene-
fit contributions. Although there was some record evidence
that Nelson Electric was found to be in violation of the
referral procedure, the grievance has been held in abeyance
pending the outcome of the instant proceeding.'3
Since February 24, 1977, Nelson Electric has not com-
plied with the terms and provisions of its collective-bargain-
ing agreement in any respect. However, electrical contract-
ing jobs have been undertaken by the other Respondents
herein, Gary C. Nelson Electric and Gary C. Nelson. Inc.
B. The Formation and Business of Garo C. Nelson Electric
and Ga ' C. Nelson, Inc.
When Nelson Electric commenced operations, Louella
Nelson, who had no prior experience in running an electri-
cal contracting business and was not a qualified electrician.
remained at home and handled no more than the nominal
duties of an office clerical: she prepared checks and signed
many of them, she prepared the payroll, she kept the books
and paid taxes. and she ordered supplies which were based
on the bids for jobs prepared by her husband or which were
requested by the workmen on the job. She also signed most
of the referral cards forwarded by the Union pursuant to
the referral procedure provided for in the collective-bar-
gaining agreement.
Gary Nelson, who had been a qualified electrician, de-
cided which jobs to bid on. He determined what the bid was
to be and what manpower was required in order to com-
plete the jobs: and he supervised the work once the jobs
had commenced. Thus, it was his bids that determined the
number of electricians that had to be hired, and the referral
procedures of the collective-bargaining agreement deter-
mined who were the electricians who were to be hired. On
the job Gary directed the other employees in their day-to-
day work, determined when the work was completed. and
determined when employees were to be terminated or laid
off as a result of the completion of the work.
Because of the nature of the electrical contracting busi-
ness, Nelson Electric required no great capital investment
and, indeed. there was no initial capital invested. All that
was required was the barest essentials, namely, screwdriv-
ers, benders, and some other small tools of the trade. In
order to get to the job, however, transportation was re-
quired. Gary Nelson's truck was used.
In the winter of 1976-77. Garb was employed by Interna-
tional Harvester, but in December 1976 or January 1977.
he worked 40 hours at one of the jobs of Nelson Electric.
" Respondents have not argued that the issues raised herein should be
deferred fr resolution pursuant to the polic) epressed in Coll'er Inrulated
Wire, 4 Gul0 and Wesiern Svrstem Co. 192 NI.RB 837 (1971). Even if such
a contention had been made, I would have rejected it. inasmuch as the unfair
labor practice alleged herein strikes at the heart of the collective-bargaining
process Helvetia Sugar Cpertie, Inr'. 234 NLRB 638 (1978).
Long prior to Louella's notice to the Union that Nelson
Electric was terminating its collective-bargaining agree-
ment, prior to Rude's attempt to persuade Gary to main-
tain his union membership, and prior to Gary's announce-
ment that he was thinking of going nonunion, Gary had
already reached his decision. In late December 1976 or ear-
ly January 1977. he bid for a subcontractingjob to finish all
electrical work at Long John Silver's Seafood Shoppe in
Springfield, Ohio, for the sum of $12,000. He was awarded
a contract on January 5, 1977, under the name of Gary C.
Nelson Electric, doing business at the Nelson home. This
company continued to operate in March, April, and May,
1977. using the same equipment as was formerly used by
Nelson Electric. Louella Nelson apparently did not partici-
pate in the business affairs of Gary C. Nelson Electric, ex-
cept that she signed checks in payment of the liabilities of
the new company. which continued to maintain the very
same bank account of Nelson Electric, with no change of
trade name.
On April 23. 1977, the Nelsons signed a certificate of
incorporation of Gary C. Nelson, Inc., which was filed on
May 3, 1977, and became effective on May 5. 1977. Gary
Nelson was president and treasurer; Louella Nelson, secre-
tary. Louella continued to sign checks on the very same
bank account maintained in the name of Nelson Electric.
Essentially the same type of journeyman tools, or perhaps
even the very same tools, continued to be used by the cor-
poration.'4 which added to its vehicles a van owned by
Gary Nelson, which he acquired after Nelson Electric had
ceased doing business under that name. The corporation
also used the same truck (owned by Gary Nelson) as had
been used by Nelson Electric and Gary C. Nelson Electric.
However, the truck was now formally leased from Gary
Nelson to the corporation for $150.00 per month.
Gary Nelson still determined which bids to make and, as
part of the bidding process, how many and which employ-
ees to hire. Bill Flaker and Mike Derden, two employees of
Gary' C. Nelson. Inc., were previously employed by Gary C.
Nelson Electric. Interestingly, when Gary' Nelson success-
fully bid for jobs both before and after the corporation was
formed, the contractor submitted to him contracts with the
words "Nelson Electric" typed in, to which Gary Nelson
inserted in his own hand "Gary" before the names and
"Inc." after them. As a result, many subcontracts in 1977
and 1978 are approved in the names of"Gary Nelson Elec-
tric, Inc." and "Gary C. Nelson Electric, Inc."--yet other
names used by Gary to conduct his electrical contracting
business.
Finally', the original bank account maintained by Nelson
Electric has never been closed, and the cash assets of the
three Respondents have been completely commingled.5 In
4 .ouella Nelson testified that Gar) C. Nelson, Inc.. "probably" used the
same tools as did the two other firms: Gary Nelson testified it did not. In
light of the fact that the Respondents had little investment in capital or
working assets. as well as the testimony of Louella that the tools wore out
after 2 ears. the above finding is of little moment.
5 Gary Nelson testified that the only reason the account as not closed
was that In early 1977 Nelson Electric had a large supply of unused checks
and the hank manager ad ised Gar to continue using them. Since the cash
assets of Nelson Electric were used to pay the expenses and obligations of
Gary C. Nelson Electric and Gar) C. Nelson. Inc., Gar', Nelson's explana-
tion is immaterial to the issues herein.
549
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
or about May 1977. the name of the account was changed
from "Nelson Electric" to "Gary C. Nelson, Inc." Other-
wise, the account still bears the same number. Both Gary
and Louella Nelson were and still are authorized signato-
ries. Both Gary Nelson and Louella Nelson signed checks
for and on behalf of Nelson Electric in 1976 and both
signed and still continue to sign checks on the same account
in payment of the obligations of all three Respondents. In
March 1977, 3 months after Nelson Electric allegedly ter-
minated its operations, Gary issued a check to Calvin
Beard, a former employee of Nelson Electric. No explana-
tion was given for the issuance of this check. Another check
was issued for liability insurance, despite the fact that Nel-
son Electric was out of business.
In April 1977, $1,500 was paid for electrical supplies;
checks were also issued to the Bureau of Motor Vehicles for
licenses on a car and a truck and to Mike Derden and
William Flaker, both laborers, although Louella did not
know what services they performed and Gary never testi-
fied with respect thereto. Checks were also issued to pay for
electrical supplies. Again, Louella's knowledge of the pur-
pose of the payments was lacking; Gary did not testify.
Checks were also drawn from the business account to pay
for the Nelsons' personal expenses. I intfer and find that the
Nelson Electric account was used to pay for the business
expenses of Gary C. Nelson Electric and Gary C. Nelson,
Inc.
C. Respondents' Jurisdictional Contentions
Respondents impliedly argue'6 that Nelson Electric is not
subject to the Board's jurisdiction because Nelson Electric,
by signing Letter of Assent A, authorized NECA as its
collective-bargaining representative only "for all matters
contained in or pertaining to the current approved [empha-
sis supplied]" collective-bargaining agreement. Since the
then-current agreement expired on October 31, 1976, the
argument continues, Nelson Electric did not grant any au-
thority to NECA to bargain for it after that date, is not a
member of nor a party to a multiemployer unit after that
date, and does not meet the standards necessary to assert
jurisdiction, since jurisdiction may be asserted only through
the NECA and not Nelson Electric." Respondents directly
argue that, because Nelson Electric did not authorize
NECA to bargain for it collectively except for matters con-
tained in the then-current agreement, it is not bound by the
terms of any agreement after October 31, 1976. and thus
had no responsibility to recognize the Union after that date.
Thus, as a substantive matter, Respondents argue that they
did not violate the Act in the respects alleged.
General Counsel counters by citing Central New Mexico
Chapter, National Electrical Contractors Association. Inc., et
al., 152 NLRB 1604 (1965), arguing that a letter similar to
that signed by Louella did not limit the association's au-
thority to represent a contractor to the specific agreement
then in effect. In Central New Mexico, a representation pe-
'" This argument is not fully set forth by Respondents in their brief. How-
ever. their answer as amended denies that Nelson Electric was a member of
NECA or authorized NECA to act on Respondents' behalf except for the
then-current agreement.
? The complaint does not allege that Nelson Electric alone transacts suffi-
cient business to meet the Board's jurisdictional yardsticks.
tition was treated as a petition for clarification as to the
scope of the multiemployer unit represented by the Chap-
ter. an association of employers in the electrical industry.
Among the issues was whether certain employers should be
included in a multiemployer unit because they signed a Let-
ter of Assent A, in which they agreed to adhere to the
provisions of the bargaining agreement, and further:
In signing this Letter of Assent the undersigned firm
does hereby authorize the ... Chapter ... as its collec-
tive bargaining representative for all matters contained
in this agreement or pertaining to this agreement. This
authorization to the ... Chapter . . ., shall remain in
effect until terminated by written notice to the parties
to the aforementioned agreement 30 days prior to the
notification date provided for therein. (152 NLRB at
1606)
The Chapter contended that individual firms conferred
upon it the limited authority to represent signatories to Let-
ters of Assent-A in matters relating only to the specific
agreement referred to in the letters. The Board held, at 152
NLRB 1606-1607, "Such an interpretation renders nuga-
tory the above-quoted language contained in the letter of
assent pertaining to the termination of the Chapter's bar-
gaining authority, the clear meaning of which is to continue
the authority reposing in the Chapter to represent a signa-
tory unless such authority is expressly withdrawn 30 days
prior to commencement of the negotiation period provided
by the basic agreement."
I fail to see the difference between the language "this
agreement" in Central New Mexico and "the current ap-
proved labor agreement" in the letter signed by Louella
Nelson. Both phrases refer to a specific agreement then in
effect: yet, in Central New Mexico, the language was suffi-
cient to bind signatories not only to "this agreement" but
also to all future agreements entered into by the Chapter.'s
Clearly, to adopt Respondents' argument herein would ren-
der meaningless the provision requiring Nelson Electric to
give 150 days' notice in order to terminate the authority it
granted to NECA. Indeed, it was the continuing authority
to negotiate, which was granted to NECA and which has
never been terminated, which is critical-not the adoption
of te terms of a specific agreement. H.S. Brooks Electric,
Inc.. el al.. 233 NLRB 889 (1977).
Of course, it may be said with some justification that
Nelson Electric never agreed in haec verba, as did the signa-
tories in Central New Mexico. to adhere to the provisions of
the bargaining agreement. Possibly this might constitute a
barrier to General Counsel's case, because the collective-
bargaining agreement herein specifically states, "It shall
also apply to all firms who sign a Letter of Assent to be
hound by this agreement lemphasis supplied]." But if that
were not the intent of the Letter of Assent-A, that is, to
bind employers to an agreement by their granting authority
to a multiemployer association to represent them in collec-
tive bargaining, then the entire letter is a meaningless piece
of paper.
'' See also Northern Nevada Chapter, National Electrical Contractors Asso-
ciaton, et at., 131 NLRB 550 (1961).
550
NELSON EL
To the contrary, it was meaningful to the parties to that
document. Nelson Electric took advantage of the applicable
1974-76 agreement and has openly conceded that it was
bound thereunder. After the agreement's expiration, on Oc-
tober 31, 1976, it continued to employ workmen whom the
Union had originally referred to it. It paid them the wages
required under the then-existing 1976 78 agreement and
made contributions to fringe benefit funds on their behalf.
Nelson Electric clearly held itself out to be bound under the
agreement, which could have been brought about solely by
its execution of the letter of assent and its understanding
that NECA's authority to contract for it continued. J.D.
Industrial Insulation Company, Inc., 234 NLRB 163 (1978);
Vin James Plastering Company, 226 NLRB 125 (1976); Lo-
cal Union 24, International Brotherhood of Electrical Work-
ers, AFL-CIO v. Wmin. C. Bloom & Co., 242 F.Supp. 421
(D.C.Md.. 1965).
For the foregoing reasons, Nelson Electric had autho-
rized NECA to act for it in collective-bargaining negotia-
tions, and such authority did not terminate at the end of the
then-current labor agreement but, instead, continued until
such time as proper notice was given. No notice has been
given. Under Central New Mexico, Nelson Electric was, at
all times relevant, a member of the multiemployer unit rep-
resented by NECA.'9 Since NECA, by stipulation of the
parties, meets the Board's criteria for asserting jurisdiction,
it is appropriate to assert jurisdiction over each of its mem-
bers and those employers, including Nelson Electric. who
have authorized it to act on their behalf.
Of course, that does not end matters, for neither Gary C.
Nelson Electric nor Gary C. Nelson, Inc., signed any docu-
ment authorizing NECA to act for them. If, however, they
are alter egos of Nelson Electric, they are bound by the
same agreement which is binding upon Nelson Electric and
H" It may be argued that Earl Gordon d/b/a Gordon Electric Company, 123
NLRB 862 (1959), is contrary authority. There, an individual signed a pre-
signed collective-bargaining agreement under which he agreed to be bound
not only for the terms thereof but for any succeeding agreement entered into
between the same parties, the union and a chapter of National Electrical
Contractors Association. He also signed a form captioned "INDIVIDUAL MEM-
BERS SIGNINO UNION AGREEMENT whereby he authorized the chapter to act
as his collective-bargaining agent until such time as he gave timely notice to
revoke the authorization. The Board held that he had not indicated an un-
equivocal intent to be bound in collective-bargaining by group rather than
individual action. Gordon Electric was cited with approval in Marble Polish-
ers. Machine Operators and Helpers. Local No 121, AFL-CIO (Miami Mar-
ble & Tile Company, 132 NLRB 844, 845. fn. I 1(961). the Board noting that
there it "concluded that the mere fact that an employer signs an area agree-
ment previously negotiated by an employer association. is not sufficient to
establish an unequivocal intent to be bound in collective bargaining by
group rather than individual action. Gordon Electric involved one proposi-
tion only: a determination of what consitutes evidence of unequivocal intent
to he bound in collective bargaining by group rather than by individual
action." Most recently, Gordon Electric was cited in Phoenix Air Condition-
ing, Inc.. 231 NLRB 341 (1977), as support for the proposition that a compa-
ny's mere adoption of an area agreement in the negotiation of which it did
not participate falls short of making that company a part of a multiemployer
bargaining unit.
Neither Gordon Electric nor Miami Marble were cited in Central New
Mexico. The language of the Letter of Assent-A, in my opinion, evidences
an unequivocal intent to bind Nelson Electric to NECA group bargaining,
rather than an intent to be bound by individual bargaining. The letter does
not simply adopt the current collective-bargaining agreement; instead, it au-
thorizes NECA to act as its collective-bargaining representative. Accord-
ingly, I find that the rationale of Gordon Electric and the other decisions
cited above do not support a finding contrary to Central New Mexico. H.S.
Brooks Electric, Inc., supra; Wayne Electric Inc., 226 NLRB 409 (1976).
551
equally subject to the jurisdiction of the Act. H.S. Brooks
Electric, Inc., supra.
D. The Alter Ego Contentions
I conclude that Nelson Electric was "owned" by Louella
Nelson only as a fiction to permit her husband (a) to avoid
and evade the contractual prohibition of an owner working
with the tools of the trade and (b) to maintain the contin-
ued benefits of his union membership and coverage under
the Union's pension and health and welfare plans.2 Thus,
as a practical matter, Nelson Electric was Gary's firm. He
ran it: he obtained its business; he determined through the
bidding process how many employees were to be hired; he
supervised and directed the work; he started and finished
each job. Louella's functions were devoted solely to book-
keeping and some minor administrative functions. In this
regard, her signing of the referral slips forwarded from the
union hiring hall is not, as contended by Respondents, the
act of hiring, nor is her sending a slip to the Union notifying
it that a job was finished the act of firing. Hiring of employ-
ees occurred as a result of Gary Nelson's bidding specifica-
tions; firing, because Gary Nelson determined that the job
had been finished. It was thus Gary, and not Louella. who
hired and fired.
When Gary C. Nelson Electric commenced doing busi-
ness in late December 1976, it was obviously the result of
Gary's determination that it was better to go "non-union,"
as he threatened to do 2 months later, when the Union,
then without any knowledge of the existence of Gary C.
Nelson Electric, was attempting to convince him to retain
his union membership. In February 1977, the repudiation
of the collective-bargaining agreement and the Union as the
collective-bargaining representative was a fait accompli.
Gary C. Nelson Electric continued to operate until at or
about the time the incorporation of Gary C. Nelson, Inc.,
was formalized in May 1977. Even during this period,
Louella. although allegedly not a proprietor of the new en-
tity. continued to write checks on the Nelson Electric ac-
count, as she had in the past, covering the debts and obliga-
tions of Nelson Electric, her family expenses, and, of
utmost significance, the then-current operating expenses of
Gary C. Nelson Electric.
The changeover from Gary C. Nelson Electric to Gary C.
Nelson, Inc.., was more a matter of form than of substance.
Louella continued as the secretary and checkwriter; Gary
continued to control all pertinent functions of running the
business entity and controlling its day-to-day administra-
tion, including labor relations, just as he had done in the
other businesses which he operated since 1975. Not only
20 Contrary to Respondents' contentions that the Nelsons were misled into
binding themselves to agreements that they did not desire, it is clear that the
Nelsons sought the very result about which they now complain. Indeed, in
the letter Louella Nelson wrote to the Union purporting to terminate the
then-existing agreement, she thanked the Union's business manager for his
help. The "help" could be nothing other than the Union's advice and assist-
ance in insuring that Gary Nelson could be an owner of an electrical con-
tracting company while giving the appearance that he was only an employee
and thus retaining all of his employee's benefits. Louella Nelson confirmed
that Nelson Electnc was put in her name because: "It was against the union
rules. my husband could not be the owner of the company and be an em-
ployee of the company. [I did it] for him to keep his union membership." The
Nelsons should not now be heard to complain about the Union's conduct.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the internal structure the same; it also appeared the
same to the contractors for whom Gary Nelson was per-
forming electrical contracts, who continued to refer to
Gary's firm as either "Nelson Electric" or "Gary C. Nelson
Electric."
The law relating to a finding of an alter ego relationship
has been enunciated in numerous Board Decisions. In par-
ticular, in Crawford Door Sales Company, Inc., and Cordes
Door Company, Inc., 226 NLRB 1144 (1976), the Board
found an alter ego status where "the two enterprises have
'substantially identical' management, business purpose, op-
eration, equipment, customers, and supervision, as well as
ownership." Little would be served by reviewing the facts
set forth above-clearly, it cannot be argued that the true
management, business purpose, operation, and supervision
were in all material senses only substantially identical-
they were identical. It may be argued that the duties of
Louella lessened over the course of time. Realistically, how-
ever, she made too much of her duties in the first place. Her
relinquishment of some nominal bookkeeping functions did
not materially alter the identity of the operations of Nelson
Electric, Gary C. Nelson Electric, and Gary C. Nelson, Inc.
In the electrical contracting industry, the tools are mini-
mal. As Louella testified, Nelson Electric was started with
the "barest essentials." Gary C. Nelson Electric continued
with those same "barest essentials." The "barest essentials"
may also have been utilized by Gary C. Nelson, Inc. The
principal or, at least, the most costly equipment used by
Nelson Electric was Gary's truck. That was used by the two
other companies. The only change was that when the truck
was used by Gary C. Nelson, Inc., a lease was prepared,
requiring the payment by the corporation to Gary of $150
per month. Whether the truck was leased or loaned does
not alter the fact that Gary C. Nelson, Inc., continued to
use the same truck which was an integral asset of the two
earlier proprietorships. As a consequence, the equipment
utilized by all three entities was substantially identical.
There was no evidence elicited by any party of the iden-
tity of the customers of Nelson Electric. The two other
firms subcontracted for the Brell Corporation. Their cus-
tomers were therefore identical. Assuming that Nelson
Electric also subcontracted for Brell, the customers of all
three would be identical. But even if the customers were not
identical, that would not be fatal. In this industry, jobs are
often small; business is obtained catch-as-catch-can. It
would be most unusual if all of the customers were identi-
cal. In light of this fact, I do not believe that the General
Counsel's failure to prove that the customers of all three
firms were the same is critical to my finding of alter ego.
Finally, almost enough has been said about the owner-
ship of the three Respondents. The record is replete with
statements of both Louella Nelson and Robert Rude attest-
ing that Louella was the sole owner of Nelson Electric.
However, many factors temper that ultimate legal conclu-
sion of ownership. Gary, not Louella, desired to go into
business. It was Gary, not Louella, who requested the ad-
vice of Ivan Johnson, then the union business manager, on
how to maintain his union card and benefits, to continue
working with the tools of the trade, and to "own" a com-
pany. It was Gary, not Louella, who received the advice
that Louella should be the sole owner of the new enterprise
and who insured that such advice was followed.
Further, it was Gary who transacted all the material
business of Nelson Electric-he hired, fired, supervised, di-
rected work, bid on jobs, ordered material for purchase and
insured that the work was done. It was, in reality and but
for the sham of Louella's ownership, which Gary had uti-
lized in order to evade the contractual and union constitu-
tional bar against his being an owner, his own company. In
so finding, I discredit Louella's testimony to the contrary.
She appeared to me to be evasive, hedging her answers
when she could have easily and forthrightly answered ques-
tions directly, without "probably's" and "maybe's" and
without hesitation. Obviously, she was attempting as best
she could to protect and conceal her husband's involvement
in Nelson Electric: but glimmers of truth shone through.
On numerous occasions, she kept referring to Nelson Elec-
tric as "we": thus, Nelson Electric commenced business on
"the date that we signed the contract with the union"; "The
barest essential is what our company had"; "We were los-
ing money"; "we didn't purchase any material...."; "we
just sort of fizzed out." The record makes clear that "we"
meant both Louella and her husband. Indeed, the assets of
Nelson Electric were used to pay for not only the debts and
obligations of that company but also those of Gary C. Nel-
son Electric and Gary C. Nelson, Inc., and of the Nelsons
for their personal expenses. When Nelson Electric required
additional monies, both Gary and Louella secured a bank
loan. Respondents' evidence, at best, demonstrates that the
three enterprises were a family business, the only change
from one to another being a change of name and possibly a
shuffling of ownership interest. I find in these circumstances
that Gary C. Nelson Electric and Gary C. Nelson, Inc.. are
alter egos of Nelson Electric and that the three entities con-
stitute a single integrated enterprise.2s
E. The Alleged Violation of Section 8(a)(5) and (1) of the
Act
As found above, Gary Nelson apparently found onerous
the terms of the collective-bargaining agreement under
which Nelson Electric was bound. He threatened to go
"non-union" in February 1977. Even prior thereto, he had
already commenced doing business under a new name sole-
ly, I find, for the purpose of avoiding the union agreement
later.
Nelson Electric attempted to terminate its agreement
with the Union by letter, dated February 24, 1977, more
than a year and one-half before the expiration date of the
agreement and the date when effective notice of termina-
tion of the agreement could have been given by NECA.
Because the notice was clearly untimely, Nelson Electric
violated Section 8(a)(5) and (1) of the Act by its attempt to
terminate the collective-bargaining agreement and subse-
quent repudiation of the Union as bargaining representa-
tive and refusal to honor the agreement. Phoenix Air Condi-
tioning, Inc., supra; H.S. Brooks Electric, supra; J.D.
Lunsford Plumbing Heating and Air Conditioning, Inc., 237
NLRB 128 (1978); Frank Naccarato, A Sole Proprietor,
d/b/a Naccarato Construction Company, et al., 233 NLRB
21 See Sturdevanr Sheet Metal & Roofing Co., Inc., and Orion Trading Com-
pam, Inc. d/h/a Surdevant Roofing Compan., 238 NLRB 286 (1978).
552
NELSON ELECTRIC
1394 (1977); Edward E. Schultz d/b/a Schultz Painting &
Decorating Co., 202 NLRB 111 (1973).
Because Gary C. Nelson Electric and Gary C. Nelson.
Inc.. are alter egos of Nelson Electric, and because they
have engaged in the same repudiation of the Union and
refusal to honor the agreement, they too have violated Sec-
tion 8(a)(5) and (1) of the Act. Appalachian Construction,
Inc., 235 NLRB 685 (1978);: Ski Craft Sales Corp., et al.,
237 NLRB 170 (1978): Marquis Printing Corporation and
Mutual Lithograph Company, 213 NLRB 394 (1974).
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICE UPON
COMMERCE
The activities of Nelson Electric. Gary C. Nelson Elec-
tric, and Gary C. Nelson, Inc., occurring in connection with
the operation of Nelson Electric, Gary C. Nelson Electric,
Gary C. Nelson, Inc., and NECA. described in section III.
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Nelson Electric. Gary C. Nelson Electric, and Gary C.
Nelson Inc., and each of them, are employers within the
meaning of Section 2(2) of the Act.
2. Gary' C. Nelson Electric and Gary C. Nelson, Inc.. are
the alter egos of Nelson Electric and of one another.
3. The Union is a labor organization within the meaning
of the Act.
4. All journeymen, wiremen, apprentices, and foremen
of members of the National Electrical Contractors Associ-
ation, Western Ohio Chapter. and of the employers who
have authorized said Association to bargain for them, in-
cluding Nelson Electric and its alter egos, Gary C. Nelson
Electric and Gary C. Nelson, Inc., engaged in electrical
contracting, but excluding all office clerical employees and
professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. At all times since November 1, 1974, the Union has
been, and now is, the exclusive representative of all the
employees in the aforesaid appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(c)
of the Act.
6. By refusing on and after February 24. 1977, to ac-
knowledge that they were bound by the terms of the collec-
tive-bargaining agreement negotiated between the Union
and the Association, and by repudiating the Union as col-
lective-bargaining representative of their employees in
January 1977, Nelson Electric and its alter egos, Gary C.
Nelson Electric and Gary C. Nelson, Inc.. have engaged in
and are engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Nelson Electric, Gary C. Nelson Elec-
tric, and Gary C. Nelson, Inc., engaged in certain unfair
labor practices, I shall recommend that they be ordered to
cease and desist therefrom and that they take affirmative
action to effectuate the policies of the Act. With respect to
the latter. Nelson Electric, Gary C. Nelson Electric, and
Gary C. Nelson, Inc.. shall be ordered to recognize and
bargain with the Union as the representative of all their
employees in the appropriate unit, to give retroactive effect
to the collective-bargaining agreement between the Union
and NECA, to give prospective effect to the collective-bar-
gaining agreement between the Union and the Association
until they shall have given proper notice to terminate their
authorization to NECA to act as their collective-bargaining
agent pursuant to its terms and then to the expiration of
said agreement, to make whole their employees for any
losses sustained by them by the failure to honor the terms
and conditions of the collective-bargaining agreement, and
to make whole the various fringe benefit funds for any con-
tributions required to be paid under the terms and provi-
sions of the collective-bargaining agreement. In addition, I
shall recommend a broad cease-and-desist provision order-
ing Respondents to cease and desist from "in any other
manner" interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act. Edward J. White, Inc., 237 NLRB 1020 (1978).
Interest on all amounts which are determined to be due and
owed hereunder shall be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962), enforcement denied on different grounds 322 F.2d
913 (9th Cir. 1963).
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent. Nelson Electric, and its alter egos, Gary
C. Nelson Electric and Gary C. Nelson, Inc., Mechanics-
burg, Ohio, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of their employees in the fol-
lowing appropriate unit:
All journeymen. wiremen, apprentices and foremen of
members of the National Electrical Contractors Asso-
ciation, Western Ohio Chapter, and of the employers
who have authorized this Association to bargain for
them. engaged in electrical contracting, but excluding
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all office clerical employees and professional employ-
ees, guards and supervisors as defined in the Act.
(b) Refusing to acknowledge that they are bound by the
terms of the collective-bargaining agreement executed by
the Union and NECA, effective on November 1, 1976,
which agreement is effective by its terms until October 31,
1978, and any subsequent agreement between the same par-
ties until the expiration date of such subsequent agreement,
during the term of which they shall have given timely writ-
ten notice to terminate their authority to the Association to
act on their behalf in collective-bargaining negotiations.
(c) Repudiating their obligations under the said agree-
ment entered into between the Association and the Union,
and any future agreements which are binding upon them,
and refusing to comply with the terms and conditions
thereof.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of any right guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the purposes of the Act:
(a) Bargain collectively with the Union by acknowledg-
ing that they are bound by the terms of the collective-bar-
gaining agreement executed by the Union and NECA on or
about November 1, 1976, which agreement is effective by
its terms until October 31, 1978, and any subsequent agree-
ment between the same parties, until the expiration date of
any later subsisting collective-bargaining agreement, during
the term of which they shall have given 150 days' notice to
NECA that they no longer desire that NECA act for them
in collective-bargaining negotiations; recognize and comply
retroactively with all terms and provisions of the said agree-
ment or agreements; and recognize the Union as the repre-
sentative of the employees in the appropriate unit described
above for the terms of said agreements.
(b) Jointly and severally make whole, with interest, the
employees in the bargaining unit heretofore found appro-
priate who have received less wages and benefits because of
the Respondents' illegal refusal to recognize and abide by
contractual terms and conditions and their repudiation of
the agreement with the Union, by payment of the difference
between such wages and benefits the employees actually
received and that which each employee would have re-
ceived had the Respondents complied with the said agree-
ment.
(c) Jointly and severally pay to the appropriate funds,
with interest, the health and welfare, pension, apprentice
training, and other contributions required to be paid by the
collective-bargaining agreement or agreements by which
they are bound.
(d) Post at their usual places of business, including any
facilities at which they conduct their electrical contracting
business, copies of the attached notice marked "Appen-
dix."23 Copies of said notice, to be furnished by the Re-
gional Director for Region 8, after being signed by Nelson
Electric, Gary C. Nelson Electric, and Gary C. Nelson,
Inc., shall be posted by them immediately upon receipt
thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps Nel-
son Electric, Gary C. Nelson Electric, and Gary C. Nelson,
Inc., have taken to comply herewith.
23 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."
554