Row-Wall Electric, Inc.

343 NLRB No. 66 Row-Wall Electric, Inc. and International Brother- hood of Electrical Workers, Local 602. Cases 16– CA–23630 and 16–CA–23814 October 29, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint. Upon a charge and an amended charge filed by the Union on May 14 and June 14, 2004 in Case 16–CA–23630, and a charge filed by the Union in Case 16–CA–23814 on August 17, 2004, the General Counsel issued the consolidated com- plaint on September 14, 2004, against Row-Wall Elec- tric, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On October 1, 2004, the General Counsel filed a Mo- tion for Default Judgment with the Board. On October 5, 2004, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent 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 Default 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. In addition, the consolidated complaint affirma- tively stated that unless an answer was filed by Septem- ber 28, 2004, all the allegations in the consolidated com- plaint could be considered admitted. Further, the undis- puted allegations in the General Counsel’s motion dis- close that on September 24, 2004, counsel for the Re- spondent informed the Region that the Respondent had closed its business and that no answer would be filed. On that same date, the Region advised the Respondent that a motion for default judgment would be filed if the Respondent failed to file an answer. Thereafter, on Sep- tember 28, 2004, the Respondent’s counsel notified the Region, in writing, that the Respondent would not be filing an answer to the consolidated complaint and that the Respondent had closed its business.1 1 In this letter, the Respondent’s counsel stated that he had referred the Respondent to bankruptcy counsel. The General Counsel’s motion does not indicate whether the Respondent has actually filed a bank- In the absence of good cause being shown for the fail- ure to file an answer, we grant the General Counsel’s motion for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Texas corpora- tion with an office and a place of business in Lubbock, Texas, has been engaged as an electrical contractor in the construction industry, performing residential, commer- cial, and industrial construction. During the 12-month period preceding the issuance of the consolidated com- plaint, the Respondent, in conducting its business opera- tions described above, purchased materials and services valued in excess of $50,000 directly from points outside the State of Texas. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that International Brotherhood of Electrical Workers, Local 602 (the Union) is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Lynn B. Rowan, III has been the Respondent’s owner, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and/or an agent of the Respondent within the mean- ing of Section 2(13) of the Act. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining with the meaning of Section 9(b) of the Act: Included: All employees performing electrical con- struction work within the jurisdiction of the Local on all present and future jobs. Excluded: All guards and supervisors as defined in the Act. At all material times, based on Section 9(a) of the Act, the Union has been the designated exclusive collective- bargaining representative of the unit, and has been rec- ognized as the representative by the Respondent. This ruptcy petition. Even assuming that the Respondent has, however, it is well established that the institution of bankruptcy proceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposition. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and cases cited there. Board proceedings fall within the exception to the automatic stay provisions for proceedings by a governmental unit to enforce its police or regula- tory powers. See id., and cases cited therein; NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 recognition was embodied in a recognition agreement dated October 3, 1994. Since about March 2, 2004, the Respondent and the Union met for the purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment of the unit. On about March 2, 2004, the Respondent failed to con- firm with the Union the time to meet for negotiation; arrived at the union hall unannounced; and offered a pro- posal designed to frustrate the bargaining process. On about April 22, 2004, the Respondent attended a bargaining session without legal counsel and unprepared to bargain. On about April 22 and June 30, 2004, the Respondent made statements at bargaining sessions demonstrating the Respondent’s unwillingness to bargain in good faith and intent to frustrate the bargaining process. On about May 10, 2004, by letter, the Respondent withdrew recognition from the Union as the exclusive collective-bargaining representative of the unit, and on that same date, the Respondent refused to bargain with the Union as the collective-bargaining representative of the unit. By its overall conduct, including the conduct described above, the Respondent has failed and refused to bargain in good faith with the Union as the exclusive collective- bargaining representative of the unit. On about June 22 and July 29, 2004, the Union re- quested that the Respondent furnish the Union with a list of the Respondent’s employees. On about June 30 and July 29, 2004, the Union re- quested that the Respondent furnish the Union with wage and benefit rates for all employee classifications.2 The information requested by the Union, described above, is necessary for and relevant to the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since about June 22, 2004, the Respondent has failed and refused to furnish the Union with the information requested by it. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees within the meaning of Section 8(d) of the Act, and has thereby engaged in unfair labor 2 Paragraph 15 of the consolidated complaint inadvertently states that the “Respondent requested that Respondent” furnish the Union with wage and benefit rates. Paragraph 16 of the complaint, however, correctly states that the Union requested the information described in paragraph 15. practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent unlawfully withdrew recogni- tion from the Union, we shall order the Respondent to recognize and bargain with the Union, on request, as the exclusive representative of the unit employees with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. In addition, having found that the Respondent has failed and refused since June 22, 2004, to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees, we shall order the Respondent to furnish the Union with the requested information. Further, because the Respondent has assertedly closed its business, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of its unit employees in order to inform them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondent, Row-Wall Electric, Inc., Lubbock, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with International Brotherhood of Electrical Workers, Local 602, as the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: Included: All employees performing electrical con- struction work within the jurisdiction of the Local on all present and future jobs. Excluded: All guards and supervisors as defined in the Act. (b) Failing and refusing to furnish the Union with in- formation it has requested that is necessary and relevant to the performance of its duties as the exclusive collec- tive-bargaining agent of the employees in the above ap- propriate unit. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. ROW-WALL ELECTRIC, INC. 3 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the Re- spondent’s employees in the above unit with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an agreement is reached, embody the agreement in a signed document. (b) Furnish the Union with the information it requested on about June 22, June 30, and July 29, 2004, specifi- cally, a list of the Respondent’s employees and the wage and benefit rates for all employee classifications. (c) Within 14 days after service by the Region, dupli- cate and mail, at its own expense, and after being signed by the Respondent’s authorized representative, signed and dated copies of the attached notice marked “Appen- dix”3 to the Union and to all unit employees employed at the Respondent’s Lubbock, Texas facility on or after March 2, 2004. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES Mailed by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to mail and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to recognize and bargain in good faith with International Brotherhood of Electrical Work- ers, Local 602, as the exclusive collective-bargaining representative of the employees in the following appro- priate unit: 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Mailed by Order of the Na- tional Labor Relations Board” shall read “Mailed Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Included: All employees performing electrical con- struction work within the jurisdiction of the Local on all present and future jobs. Excluded: All guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to furnish the Union with information it has requested that is necessary and rele- vant to the performance of its duties as the exclusive col- lective-bargaining agent of the employees in the above appropriate unit. 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 and, on request, bargain collec- tively with the Union as the exclusive representative of our employees in the above unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody the agreement in a signed document. WE WILL furnish the Union with the information it re- quested on about June 22, June 30, and July 29, 2004, specifically, a list of our employees and the wage and benefit rates for all employee classifications. ROW-WALL ELECTRIC, INC. 343 NLRB No. 66