Morton Electric

466 314 NLRB No. 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 We find it unnecessary to rely on the judge’s finding at fn. 9 of his decision that Bob Morton possessed a degree of legal sophistica- tion as demonstrated by his actions arising out of the use of his cor- porate name on an employee’s vehicle. We also note that it is evident from the judge’s ruling at fn. 4 of his decision, that he meant to say that parol evidence is ‘‘inadmis- sible’’ to vary or contradict the terms of a contract which is plain on its face, rather than, as he inadvertently misstated, that such evi- dence is ‘‘admissible.’’ 2 The modifications are made to reflect the narrower scope of the Order in situations involving repudiation of an 8(f) contract. There- fore, the judge’s recommended remedy is also amended consistent with the action set forth in our modified Order. Accordingly, we will not order the Respondent to ‘‘recognize and, on request, bargain with the Union,’’ nor will we order the Respondent to ‘‘restore the status quo ante’’ or to ‘‘reinstate, honor, and abide by both collec- tive-bargaining agreements.’’ Rather, we will require that the Re- spondent continue to honor the terms of the parties’ inside wiring unit collective-bargaining agreement until its expiration on March 31, 1994, and to make whole the employees in both units for any losses they may have suffered, in the manner set forth in the judge’s recommended remedy. Morton Electric, Inc. and International Brother- hood of Electrical Workers, Local 16. Cases 25–CA–22389 and 25–CA–22601 July 20, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND DEVANEY On December 3, 1993, Administrative Law Judge Steven M. Charno issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief to the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The National Labor Relations Board has considered the decision in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Mor- ton Electric, Inc., Petersburg, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(b), reletter paragraph 1(a) as 1(b), and insert the following as paragraph 1(a). ‘‘(a) Withdrawing recognition during the terms of the collective-bargaining agreements from the Union, as the exclusive bargaining representative of the Re- spondent’s employees covered by the agreements.’’ 2. Substitute the following for paragraph 2(a), delete paragraph 2(b) and reletter the subsequent paragraphs. ‘‘(a) Honor the terms and conditions of the parties’ inside wiring unit collective-bargaining agreement until its expiration on March 31, 1994, and make whole em- ployees for any loss of wages and other loss of bene- fits they may have incurred due to the unlawful con- duct plus interest, in the manner set forth in the rem- edy section of the decision.’’ 3. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT withdraw recognition during the term of a collective-bargaining agreement from the Inter- national Brotherhood of Electrical Workers, Local 16 (the Union), as the exclusive bargaining representative of our employees covered by the agreement. WE WILL NOT repudiate our collective-bargaining agreement, effective April 1, 1991, through March 31, 1994, with the Union. WE WILL NOT refuse, during the term of a collec- tive-bargaining agreement with the Union, to supply the Union, on request, relevant information necessary to the Union’s proper administration of the collective- bargaining agreement. 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 honor the terms and conditions of our in- side wiring unit collective-bargaining agreement with the Union until its expiration on March 31, 1994, and WE WILL make whole employees for any loss of wages and other loss of benefits they may have incurred due to our unlawful conduct, plus interest. 467 MORTON ELECTRIC 1 The parties so stipulated. 2 Respondent admitted that the residential wiring unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 3 The revised copy prepared by the Union’s representative was the same in every material respect, including parties and term, as the residential contract then in effect. The credited testimony of Scott and NECA’s executive manager concerning the then-current residen- tial contract was substantiated by the executed copy of that agree- ment which was received in evidence. Given the Union’s uncontested practice of reaching a collective-bargaining agreement and putting that agreement into effect before the contract was for- mally executed, I find immaterial the fact that the residential contract at issue had an effective date of June 1, 1990, but was not signed until December 12 of that year. 4 Because it is well settled that parole evidence is admissible to vary or contradict the terms of a contract which is plain on its face, I reject the alleged oral agreements between Respondent and the Union as immaterial to the issues before me. See, e.g., Electro Met- allurgical Co., 72 NLRB 1396 (1947); Peterson & Lythe, 60 NLRB 1070 (1945). 5 The parties so stipulated. 6 Respondent admitted that the inside wiring unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 7 Given the finding in text, I reject Respondent’s argument that its December 21, 1992 notice terminated its obligations under the inside contract as of May 5, 1993. 8 Morton’s testimony concerning other aspects of the August 15 meeting was shown to be freighted with self-serving mendacity, while the mutually corroborative testimony of Scott and Henning on these matters was generally supported by circumstantial evidence. I therefore credit Scott and Henning’s account that Morton was given a copy of the inside contract over Morton’s denial. WE WILL, on request, furnish the Union with the in- formation sought by it in its March 11 and April 7, 1993 letters to us. MORTON ELECTRIC, INC. Walter Steele, Esq., for the General Counsel. Brent Stuckey, Esq. (Hart, Bell, Deem, Ewing & Stuckey), of Vincennes, Indiana, for the Respondent. DECISION STEVEN M. CHARNO, Administrative Law Judge. In re- sponse to charges timely filed, a consolidated complaint was issued on August 31, 1993, which alleged that Morton Elec- tric, Inc. (Respondent) had violated the National Labor Rela- tions Act (Act), by failing to adhere to a collective-bar- gaining agreement with Local 16 of the International Broth- erhood of Electrical Workers (Union) and by refusing to fur- nish information necessary for the Union’s performance of its function as the exclusive bargaining representative of a unit of Respondent’s employees. Respondent’s answer denied the commission of any unfair labor practice. A hearing was held before me in Petersburg, Indiana, on September 28 and 29, 1993. Briefs were thereafter filed by General Counsel and Respondent under extended due date of November 23, 1993. FINDINGS OF FACT I. JURISDICTION Respondent is a corporation engaged as an electrical con- tractor with a place of business in Petersburg, Indiana. It was stipulated that Respondent, in the course of its operations during the 12-month period ending March 1, 1993, provided services valued in excess of $50,000 for Indiana enterprises directly engaged in interstate commerce. Accordingly, I find that Respondent is an employer engaged in commerce within the meaning of the Act. The Union is admitted to be, and I find is, a labor organi- zation within the meaning of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On August 15, 1990, Bobby J. Morton, Respondent’s ad- mitted president and sole shareholder, visited the Union’s of- fices in Evansville, Indiana. After a brief conversation with union officials Larry Scott, Steven Henning, and Don Wilkie, Morton signed two separate letters of assent.1 The first letter bound Respondent to recognize the Union as the exclusive bargaining representative of a specified group of employees (residential wiring unit)2 and to comply with the terms of the then-current and any subsequent residential collective-bar- gaining agreement (residential contract) between the Union and the Evansville Division, Southern Indiana Chapter, Na- tional Electrical Contractors Association, Inc. (NECA). The letter provided that Respondent’s obligations thereunder might be terminated by written notice to the Union and NECA at least 150 days prior to the anniversary date of the residential contract. In order to create a copy of the residen- tial contract then in effect between the Union and NECA, the union representatives revised an out-of-date contract to indi- cate a term of June 1, 1990, through May 31, 1991, and to reflect current wage and benefit rates.3 The residential con- tract thus revised required the payment of specified wages and benefits and Respondent’s utilization of the Union as the exclusive source of referral of applicants for employment.4 Morton was given a copy of the revised document.5 The resi- dential contract was thereafter renewed for the terms of March 4, 1991, through May 31, 1992, and June 1, 1992, through May 31, 1993. The second letter of assent which Morton signed bound Respondent to recognize the Union as the exclusive bar- gaining representative of a second group of employees (in- side wiring union)6 and to comply with the terms of the then-current and any subsequent inside collective-bargaining agreement (inside contract) between the Union and NECA. The second letter contained a termination provision which re- quired written notice to the Union and NECA at least 150 days prior to the anniversary date of the inside contract. Morton was given a copy of the relevant inside contract,7 which was effective by its terms from April 1, 1988, through March 31, 1991, required the payment of specified wages and benefits and established an exclusive union hiring hall.8 Accordingly, I find that Respondent possessed explicit knowledge of the date of termination of the inside contract then in effect. The inside contract was subsequently renewed for the term April 1, 1991, through March 31, 1994. Morton contends that (1) the revised residential contract which he received was intended to constitute a collective-bar- gaining agreement directly between the Union and Respond- ent, (2) that contract was intended to be the only collective- 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9 Morton’s business acumen is shown by the fact that his interest in entering an agreement with the Union was motivated at least in part by his intention that the Union should subsidize his operations through its ‘‘target’’ grant program. His awareness of the legal im- plications of his activities is demonstrated by the fact that he pur- portedly took action to prevent tort liability arising from the use of his corporate name on an employee’s vehicle. 10 For the reasons set forth in text, I find Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982), and its progeny to be inapposite here. 11 The record concerning the jurisdictional status of the work per- formed by Respondent’s employees on the Southern Indiana Wood Preservation job is not wholly clear. 12 Findings concerning Respondent’s abandonment of the collec- tive-bargaining agreements are based on the credited and essentially uncontroverted testimony of Roger Bonesteel, one of Respondent’s employees from June 1, 1991, through December 8, 1992. Bonesteel’s evidence concerning the second Rose Disposal job was corroborated by Scott and Wilkie’s hearsay accounts of the Union’s November 1991 surveillance of Respondent’s operations, while Bonesteel’s account of the Texas Eastern job is supported by Re- spondent’s own timesheets for that job. Although Morton initially testified that the Texas Eastern job involved high-voltage trans- mission work outside the Union’s jurisdiction, he subsequently ac- knowledged that two of his employees on that job did the work of union electricians. 13 Wilkie so testified without controversion. bargaining agreement reached on August 15, 1990, and (3) he was unaware that he had signed the two letters of assent because he did not read any of the documents which he signed. These contentions are rejected for the following rea- sons: (1) it was the Union’s general practice to negotiate en- tire collective-bargaining agreements only with NECA and not with individual employers, (2) the named parties to the revised residential contract were the Union and NECA, not the Union and Respondent, (3) it would be irrational for a contract negotiated and executed on August 15, 1990, to be given a term of June 1, 1990, through May 31, 1991, when that contract’s admitted scope did not begin until after June 1, (4) Morton’s signature appears on every page of the re- vised residential contract, a practice consonant with an ac- knowledgment of the revisions set forth therein, but does not appear on the signature line on the final page as one would expect if he were in fact a contracting party, (5) Morton un- successfully bid a First Union Methodist Church job in 1992 using noncompetitive wage rates prescribed by the inside contract, a highly improbable course of action for one who purported to believe that his company was not bound by that contract, and (6) Morton had been a member of the Union for over 20 years in August 1990 and was possessed of a demonstrated degree of business and legal sophistication9 which render highly improbable his purported failure to read or comprehend the documents which he signed. Even if I were to wholly accept Morton’s account of what transpired on August 15, I could not conclude that Respondent should be released from its obligations under the agreements which Morton admittedly executed simply because he failed to read them prior to execution.10 After operating in at least partial conformity with its obli- gations under the two letters of assent during the period Au- gust 1990 through October 1991, Respondent undertook the following jobs without using the Union’s referral system and without paying contract-prescribed wages and benefits to its employees: (1) Petersburg City Park, four employees during November–December, 1991; (2) Triad Mine, two employees during March 2–16, 1992; (3) Triad Mine, five employees during May 4–July 20, 1992; (4) Rose Disposal, three em- ployees during July or August 1992; (5) Chandler Library, five employees during July 15–August 13, 1992; (6) Texas Eastern, six employees during August 10–November 9, 1992; (7) Rose Disposal, three employees during November 16–De- cember 8, 1992; and (8) Southern Indiana Wood Preserva- tion, two employees during December 1–8, 1992. At least part of the work performed by Respondent’s employees on all but one of these jobs11 was of the same type as that per- formed by journeyman wiremen under the inside contract.12 For the foregoing reasons, I find that Respondent, since at least November 1991, has failed to continue in effect the terms and conditions of the collective-bargaining agreements to which it was a party, including those terms requiring it to utilize the Union’s exclusive hiring hall and to pay appro- priate wages and benefits. I further find that these terms and conditions of employment are mandatory subjects for the purpose of collective bargaining. Accordingly, I conclude that Respondent has engaged in the unfair labor practice of refusing to bargain collectively and in good faith with the ex- clusive collective-bargaining representative of its employees in violation of Section 8(a)(5) of the Act. On December 21, 1992, Respondent wrote to the Union and NECA revoking ‘‘all letters of assent.’’ On January 4, 1993, the Union replied, acknowledging that Respondent’s termination notice would be effective as to the residential contract on May 5, 1993, and on March 31, 1994, with re- spect to the inside contract. On March 11, 1993, the Union wrote Respondent seeking to review the latter’s payroll records on March 23 in order to determine whether Respondent had ‘‘employed workmen . . . that were hired and compensated contrary to the terms set forth in our collective bargaining agreements.’’ Respond- ent’s counsel replied that the suggested inspection date was inconvenient. The Union repeated its request in an April 7, 1993 letter to Respondent. The second letter was not an- swered by Respondent.13 I therefore conclude that Respond- ent has engaged in a second unfair labor practice by refusing during the term of a valid collective-bargaining agreement to supply the Union with relevant information necessary for the latter to properly administer the agreement. I further con- clude that this unfair labor practice violates Section 8(a)(5) of the Act as alleged by General Counsel. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 469 MORTON ELECTRIC 14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 15 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 3. The residential wiring unit and the inside wiring unit constitute units appropriate for the purpose of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Between August 15, 1990, and May 3, 1993, and at all times material, the Union has been the exclusive collective- bargaining representative of the employees in the residential wiring unit. 5. Since August 15, 1990, and at all times material, the Union has been the exclusive collective-bargaining represent- ative of the employees in the inside wiring unit. 6. By repudiating its collective-bargaining agreements with the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. By refusing during the term of its collective-bargaining agreements with the Union to supply relevant information necessary for the Union to properly administer those agree- ments, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act. 8. The aforesaid unfair labor practices affect interstate commerce within the meaning of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease those practices and to take certain affirmative action de- signed to effectuate the policies of the Act. Accordingly, Re- spondent shall be ordered to recognize and, on request, bar- gain with the Union pursuant to the collective-bargaining agreement as the exclusive bargaining representative of the employees in the appropriate unit and that, where necessary to restore the status quo ante, Respondent shall reinstate, honor and abide by both collective-bargaining agreements. Further, Respondent shall be ordered to make whole any em- ployees in the bargaining units to the extent they may have sustained losses in wages or any other benefits because of Respondent’s repudiation of its agreements with the Union, such amounts shall be computed as prescribed in Ogle Pro- tection Service, 183 NLRB 682 (1970), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). Any employee benefit fund reimbursements shall be made in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979), and employee reimburse- ments for expenses shall be made in accordance with Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Respondent shall also be ordered to provide the information sought in the Union’s letters of March 11 and April 7, 1993. On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended14 ORDER The Respondent, Morton Electric, Inc., Petersburg, Indi- ana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Repudiating its collective-bargaining agreement, effec- tive April 1, 1991, through March 31, 1994, with the Inter- national Brotherhood of Electrical Workers, Local 16 (the Union). (b) Refusing to recognize and bargain with the Union as the exclusive bargaining representative of Respondent’s em- ployees in the inside wiring unit. (c) Refusing, during the term of a collective-bargaining agreement with the Union, to supply the Union, on request, relevant information necessary to the Union’s proper admin- istration of the collective-bargaining agreement. (d) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Reinstate and honor the terms and conditions of the parties’ two collective-bargaining agreements from the date of Respondent’s repudiation thereof in November 1991 for- ward, and make whole employees for any loss of wages and other loss of benefits they may have incurred due to the un- lawful conduct, plus interest, in the manner set forth in the remedy section of this decision. (b) Recognize and, on request, bargain with the Union as the collective-bargaining representative of employees in the inside wiring unit. (c) On request, furnish the Union with the information sought in the Union’s March 11 and April 7, 1993 letters to Respondent. (d) Preserve and, on 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 analyze the amount of backpay due under the terms of this Order. (e) Post at its Petersburg, Indiana facility copies of the at- tached notice marked ‘‘Appendix.’’15 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.