State Electric Service, Inc.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State Electric Service, Inc. andLocal Union 1001 of the International Brotherhood of Electrical Workers. Case 15-CA-4034 July 31, 1972 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On January 14, 1972, Trial Examiner Eugene E. Dixon issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in the light of the exceptions and brief and has decided to affirm only such of the Trial Examiner's rulings, findings, and conclusions as are consistent with the following. The issue in this case is whether or not the Respondent, State Electric Service, Inc., violated Section 8(a)(5) and (1) of the Act by refusing to execute and adhere to a collective-bargaining agree- ment effective September 14, 1970, duly entered into on its behalf by an employer-association with the Charging Party, Local Union 1001 of the Interna- tional Brotherhood of Electrical Workers, as the duly recognized collective-bargaining representative of Respondent's employees in an appropriate unit. The Trial Examiner found that the Union, by engaging in a strike on August 21, 1970, violated the no-strike clause of the September 14, 1970, agree- ment, and that by taking that action without invoking the contractual procedure for resolving disputes the 'Union absolved the Respondent from any further liability under the contract. Accordingly, he recommended that the complaint be dismissed in its entirety. The Trial Examiner's conclusions are unwarranted by the record. The facts are in the main undisputed, but have not been set forth fully or accurately by the Trial Examiner. The Union has had successive collective- bargaining contracts with Panama City Electrical Contractors, an employer-association, since 1965, and Respondent has been covered by that associa- tionwide contract since 1967.1 The 1969 contract had an expiration date of September 13, 1970. On June 1, 1970, the Union gave notice of its desire to open negotiations for a new agreement. Five bargaining sessions were conducted between June 20 and July 20, at which time, and in accordance with contractu- ally established procedures, outstanding differences were submitted to the Council on Industrial Rela- tions for the Electrical Contracting Industry.2 The Council handed down its decision on August 21, 1970, resolving all outstanding issues between the parties. As that decision was binding on the parties, there was complete agreement as of August 21 on the new contract to go into effect on September 14. Respondent attended all association meetings until July 20; thereafter it took no part, but never notified the Association or the Union of any intent to withdraw from association bargaining: Meanwhile, at an undetermined date apparently in late July or early August 1970, a dispute arose between the Union and Respondent as to the proper contract wage rates to be paid by Respondent on a small job at Tyndall Air Force Base near Panama City. The contract provided for an "industrial" rate and a somewhat lower "commercial" rate. The Union's business manager, Piccolo, received a report from the job steward that Respondent was paying the commercial rate. Piccolo felt that the job required payment of the industrial rate and repeatedly attempted to contact Respondent's president, Peter- son by telephone, but Peterson never responded. On August 14, Piccolo wrote Peterson that he requested a labor-management meeting as provided for in the contract, but again, Peterson did not respond. On August 20, having been unable to secure any reply from Peterson, Piccolo instructed the Union's job steward on the Tyndall Air Force Base job to have the employees fail to report to work the next day. The four employees on that job did not work thereafter. Still Peterson did not contact Piccolo, but rather attempted, unsuccessfully, to resolve the wage issue in his favor by contacting a vice president of the Union in Tampa, Florida. On August 26, Peterson fired all of his employees and replaced them with "men off the street." Piccolo again attempted to contact Peterson on September 3, when he had an attorney write Peterson a letter requesting that the matter be handled under the contract's grievance procedure. Contrary to the Trial Examiner's statement, the uncontradicted evidence reveals that the Union did seek to resolve the disagreement through the contrac- tual procedure. Thus, on September 14, 1970, Piccolo ' Prior to 1969, Respondent also signed the association contract, but 2 Cosponsored by National Electrical Contractors Association and in 1969 and 1970 the contract was executed on behalf of its members by International Brotherhood of Electrical Workers. the Association. 198 NLRB No. 77 STATE ELECTRIC SERVICE wrote Peterson a registered letter advising that he had invoked a Joint Conference Committee Meet- ing3 scheduled for September 16, 1970. Peterson did not reply, nor did he attend the Joint Conference Meeting, where the Committee found that the Respondent had violated the contract by refusing to settle the wage dispute under the grievance machin- ery of the contract and by not calling the Union for referrals following the discharge as required by the contract. This decision, signed by representatives of the Association and the Union, consisted only of the findings of violations of the contract. Finally, on February 1, 1971, Piccolo wrote a letter to Peterson, forwarding a copy of the contract with the Association which had gone into effect on September 14, 1970, and asking Peterson his inten- tions with respect thereto. Peterson never replied. It is clear that the Respondent can in no way be considered to have timely withdrawn from the Association4 in the absence of notice to either the Association and/or the Union. There is no claim of acquiescence by the Union, and Respondent's termination of its employees and hiring of new employees, not members of the Union, all occurred after August 21, 1970, when all terms of the new agreement were settled.5 We turn then to the major issue in this case, whether the Union's August 21 action of calling the men off the job constituted unusual circumstances such as to absolve Respondent of further obligation to bargaining with the Union. The Trial Examiner concluded that the Union did so violate the contract, quoting a no-strike clause which, "provided that all disputes over matters relating to the contract `must be handled' as per the procedure set forth in the contract." However the no-strike clause which he describes and the dispute settlement procedure which he quotes are all taken from the contract that went into effect on September 14, 1970, after the events in issue herein. Since the 1969-1970 contract was in effect at the time of the dispute, the validity of the Union's conduct must be determined under that agreement. The no-strike clause in that contract is significantly different from the 1970 clause. Thus, the 1969 provision reads as follows: There shall be not [sic] stoppage of work either by strike or lockout because of any proposed 3 Both the 1969 and 1970 contracts direct that the Committee meet within 48 hours when notice is given by either party, and that the Committee is to adjust all questions in dispute. If agreement is not reached in 48 hours, the matter is to be referred to the aforementioned Council on Industrial Relations. The Council's decision is final and binding on the parties. 4 As found by the Trial Examiner, the Respondent bargained with the Union as part of the Panama City Electrical Contractors and was bound by 593 changes in the agreement. All such matters must be handled as stated herein. In contrast the September 14, 1970, new contract contained the following no-strike clause which is substantially broader: There shall be no stoppage of work either by strike or lockout because of any proposed changes in the agreement or dispute over matters relating to the agreement. All such matters must be handled as stated herein. [Emphasis supplied.] Here the work stoppage engaged in by the Union on August 21 clearly involved a dispute over matters relating to the agreement and did not involve proposed changes therein. It is also patent that the strike occurred as a result of the Respondent's failure to respond to the Union's request for recourse to the contractual procedure. We are thus constrained to conclude that the strike was not proscribed by the limited no-strike clause in the contract then in effect. We note, further, that the Union continued to abide by the contract by submitting the charge of the Company's failure to abide by the contract to the dispute settlement procedure of the contract and invoking the Joint Conference Meeting as described above. We find, therefore, contrary to the Trial Examiner, that the Union's conduct did not absolve the Respondent from further obligation to deal with the Union, and the Respondent was bound by the 1970 association contract. Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to abide by the contract on and after September 14, 1970. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the Respondent described in section I of the Trial Examiner's Decision, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we and intended to be bound by the results of the bargaining conducted by that Association, and both the appropriateness of the unit and the Union's majority status are presumptively established on the basis of the bargaining history. No exceptions were taken to the Trial Examiner's findings in these regards. Prior to 1969 each member company of the Association signed individually ; since then the Association alone signs for all its members. 5 Retail Associates, Inc., 120 NLRB 388. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing and the entire record in this proceeding, the Board makes the following: CONCLUSIONS OF LAW 1. State Electric Service, Inc., is engaged in commerce within the meaning of the Act. 2. Local Union 1001 of the International Brother- hood of Electrical Workers is a labor organization within the meaning of the Act. 3. On August 26, 1970, and at all times since, the Union aforesaid has been the exclusive representa- tive of all the employees in an appropriate unit of the Respondent's employees for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. The unit of the Respondent's employees appropri- ate for collective bargaining is and has been: All employees, including journeymen, wiremen and apprentices, employed by Panama City Electrical Contractors, Panama City, Florida, exclusive of all supervisors as defined in the Act. 4. By refusing, on and after September 14, 1970, to abide by the contract entered into on its behalf by Panama City Electrical Contractors with the afore- said Union as the exclusive representative of the employees, in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, State Electric Service, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local Union 1001 of the International Brotherhood of Electrical Workers, as exclusive bargaining repre- sentative of its employees in the appropriate unit found herein. (b) Refusing to abide by and give effect to the collective-bargaining agreement entered into be- tween the Association and the Union on September 14, 1970. (c) Dealing directly and individually with employ- ees in the aforesaid appropriate unit concerning wages and other conditions of employment and hiring employees by means other than those provid- ed for in the aforesaid collective-bargaining agree- ment. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Abide by and give retroactive effect to all the terms of the aforesaid collective-bargaining agree- ment. (b) Make whole its employees in the aforesaid bargaining unit for any loss of pay which they may have suffered by reason of the Respondent' s refusal to abide by and give effect to the September 14, 1970, collective-bargaining agreement between the Union and the Association, in a manner consistent with Board policy in F. W. Woolworth Company, 90 NLRB 289, with interest or backpay to be 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, including any other benefits they may have lost by reason of Respondent's unlawful actions. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of ^backpay due under the terms of this Order. (d) Post at its Panama City, Florida, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 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 " STATE ELECTRIC SERVICE 595 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local Union 1001 of the International Brotherhood of Electrical Workers, as the exclu- sive bargaining representative of the employees in the appropriate unit described below. WE WILL NOT refuse to abide by or give effect to the collective-bargaining agreement entered into between Panama City Electrical Contractors and the Union on September 14, 1970. WE WILL NOT deal directly or individually with employees in the appropriate unit described below, concerning wages and other conditions of employment nor hire employees by means other than those provided for in the aforesaid collec- tive-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL abide by and give retroactive effect to all the terms of the aforesaid collective-bargaining agreement. WE WILL make whole our employees in the aforesaid bargaining unit for any loss of pay which they may have suffered by reason of our refusal to abide by and give effect to the aforesaid collective-bargaining agreement, including any other benefits they may have lost by reason of our unlawful actions. The appropriate unit is: All employees, including journeymen, wiremen and apprentices, employed by Panama City Electrical Contractors, Pana- ma City, Florida, exclusive of all supervisors as defined in the Act. STATE ELECTRIC SERVICE, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Plaza Tower Building, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Panama City, Florida, on September 21, 1971, pursuant to due notice. The complaint, based on duly served charges filed by Local 1001 of the International Brotherhood of Electrical Workers, on February 11, 1971, was issued on July 20, 1971, by the Regional Director for Region 15 (New Orleans, Louisiana), on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board. The complaint as amended alleged that Respondent, State Electric Service, Inc., had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by refusing to execute and abide by a collective-bargaining agreement duly entered into with the Union as the duly recognized collective-bargain- ing agent of Respondent's employees in an appropriate unit. In its duly filed answer Respondent denied the commis- sion of any unfair labor practices and raised certain affirmative defenses which will be disposed of herein. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Florida corporation with its principal office and only place of business located in Panama City, Florida, where it is engaged in the business of commercial and residential electrical contracting. During the 12 months preceding issuance of the complaint which is a representative period Respondent, in the course and conduct of its business operations purchased goods valued in excess of $50,000 from firms which in turn purchased and received said goods from directly outside the State of Florida. At all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union 1001 of the International Brotherhood of Electrical Workers, at all times material herein, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As noted this case involved a refusal-to-bargain charge against Respondent on the grounds that Respondent failed to execute, live up to, and abide by a collective-bargaining 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement duly entered into on its behalf (and on behalf of other electrical contractors in Panama City, by an association acting for and on behalf of the contractors in question).' Respondent contends that in order to establish his case the GeneraliCounsel had to prove by a preponderance of the evidence (1) that Respondent was obliged, contractual- ly, or otherwise to bargain with the Umon, which requires proof: (a) that there existed a duly authorized employer association which was qualified to bargain on behalf of the Respondent; 2 (b) the employees of each of the alleged association members constituted an appropriate unit for bargaining purposes; and (c) that a majority of the members of the appropriate bargaining unit have freely designated the Union as their bargaining agent; and 3 (2) that Respondent refused to bargain with the Union and that the Respondent's denial was not in good faith or otherwise justified. Although apparently contending that there was no legal or binding association in existence, Respondent claims that even assuming that the General Counsel has proved (1)(a), (b), and (c) above, the record shows that "Respondent's conduct subsequent to August 21, 1970, was completely justified and otherwise legitimate by reason of the Union's material breach of the no-strike clause in its agreement with Respondent." In this connection the evidence shows as follows: Sometime prior to August 21 a dispute arose as to the proper wage rates being paid by Respondent on a small job at Tyndall Air Force Base in Panama City. As pointed out in the General Counsel's brief, The contract in effect (G.C. Exh. 4) provides for two wage rates-an industrial rate and a commercial rate which is lower than the industrial rate. (Umon Representative) Piccolo received a report from the job steward that Respondent was only paying the commer- cial rate . . . Piccolo then began to try and contact Peterson4 by telephone as he felt that thejob required payment of the industrial rate. He left repeated messages. Finally, on August 14, 1970, Piccolo wrote Respondent that he requested a labor-management meeting on this matter, under the contract .. . Peterson never responded to this letter. Then, on August 20, after having no response from Peterson, Piccolo called the job steward and instructed him to have the employees fail to report to work the next day ... the employees of State Electric did not work thereafter. Peterson did not contact Piccolo, but instead called the union vice-president named Pate, in Tampa, Florida . . . Peterson had no real explanation i The original complaint alleged only that Respondent unilaterally withdrew from the association and refused "to execute the agreed upon contract " The complaint was amended at the hearing to allege that Respondent "refused to execute and abide by the contract agreed upon between the association and the Union." As the evidence will show, the question of execution of the contract is really not an issue in the case since the contract was duly executed (as had been the previous contract) by representatives of the Association on behalf of the named employers including Respondent 2 Although the contractors had no formal organization evidence by a constitution, bylaws, and permanent officers, the history of the bargaining shows clearly that the contractors bargained on a multiemployer basis and were bound by and intended to be bound by the results of such bargaining for this action, except that he thought Pate could verify the fact that he was allowed to pay commercial rates on the Tyndall job . . . Peterson never called Piccolo .. . but instead fired all his employees and hired "men off the street" to replace them . . . Piccolo then had an attorney write Peterson a letter on September 3, 1970 ... which in essence requested that the matter be handled under the contract's grievance procedure. The contract included a no-strike clause which provided that all disputes over matters relating to the contract "must be handled" as per the procedure set forth in the contract. This procedure was stated as follows: Article I Section 5 There shall be a Labor-Management Committee of three representing the Union and three representing the Employer. It shall meet regularly at such stated times as it may decide. However, it shall also meet within 48 hours when notice is given by either party. It shall select its own Chairman and Secretary. Section 6 All grievances or questions in dispute shall be adjusted by the duly authorized representatives of each of the parties to this agreement. In the event that these two are unable to adjust any matter within. 48 hours, they shall refer the claim to the Labor-Management Com- mittee. Section 7 All matter coming before the Labor-Management Committee shall be decided by majority vote. Four members of the Committee, two from each of the parties hereto, shall be a quorum for the transaction of the business, but each party shall have the right to cast the full vote of its membership and it shall be counted as though all were present and voting. Section 8 Should the Labor-Management Committee fail to agree or to adjust any matter, such shall then be referred to the Council on Industrial Relations for the Electrical Contracting Industry, for adjudication. The Council's decisions shall be final and binding on both parties hereto. Section 9 When any matter in dispute has been referred to conciliation or arbitration for adjustment, the provision and conditions prevailing prior to the time such matters arose, shall not be changed or abrogated pending a decision in such conciliation or arbitration. Indeed, while originally each contractor individually signed the resulting agreements, the two latest contracts, namely the 1969 to 1970 and the 1970 to 1971 contracts (both of which named Respondent as a party ) were signed by only two of the contractors as chairman and secretary of the contracting group on behalf of the other contractors all of whose firms names were listed as parties. "Substance rather than legalistic form is all the Board has required in multiemployer bargaining." Town and Country Dairy, 136 NLRB 517,523 3 The appropriate unit and the majority representation questions are presumptively settled on the basis of the prior bargaining history and the current contract absent any valid rebutting evidence . See Sheridon Creations, 106 NLRB 1171. 4 Respondent's president and owner, Larry Peterson STATE ELECTRIC SERVICE 597 Section 10 Vacancies on the joint conference committee shall be filled by the parties to this agreement among whose representation the vacancies exists. No member of the committee shall be permitted to serve during the consideration of any dispute or grievance in which he is directly interested. Each party shall befray the expenses of its own members of the committee. Any incidentals or general expense of the committee mutually agreed upon in evidence shall be borne by the parties. It is clear from the foregoing that by calling the men out on strike without attempting to place the dispute before the Labor-Management Committee of the Contracting Associ- ation- or attempting to place it before the Council of Industrial Relations for the Electrical Contracting Industry for adjudication the Umon violated the contract. I agree with Respondent that this conduct on the part of the Union absolved Respondent from any further liability under the contract. As stated by the court in United 5 While Peterson's explanation for not returning the Union's telephone calls because he was working on a job out of town leaving Panama City early in the morning and getting back late at night may not tell the whole story, the fact is that his failure to respond to the Union's calls amounts to Electrical, Radio and Machine Workers of America, Local 1113 v. N.L.R.B., 223 F.2d 338, 341 (C.A.D.C.), cert. denied 350 U.S. 981: It is general law that one party to a contract need not perform if the other party refuses in a material respect to do so. And that rule applies to labor contracts. Moreover, in cases where the breach is a strike in violation of a collective bargaining agreement, as in the instant case, application of the rule is supported by the rationale underlying such agreement. The prevention of strikes is one of the principal purposes of labor contract and of the Act. A no-strike provision is "the chief advantage which an employer can reasonably expect from a collective bargaining agreement." The walkout was a material breach which justified the subsequent rescission of the contract by the Company. In the circumstances herein I recommend dismissal of the complaint in its entirety. nothing more than a failure to settle the dispute at the first stage of the contract disputes machinery It might also be noted that "No member of the (Labor-Management) Committee shall be permitted to serve during the consideration of any dispute in which he is directly interested "