Aargano Electric Corp.

352 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Aargano Electric Corp and Local 363, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America' and Local 3, International Brotherhood of Electrical Workers, AFL-CIO, 2 Party to the Contract. Case 29-CA-6355 March 12, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 4, 1979, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Local 3 filed excep- tions and a supporting brief.3 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,4 and conclusions 5 of the Administrative Law Judge and to adopt her recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- ' Herein called Local 363. 2 Herein called Local 3. a Respondent filed a letter with the Board stating that it "hereby adopts and joins in the Exceptions ... submitted by the Party to the Con- tract, Local 3, I.B.E.W." 4Local 3 has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to over- rule an administrative law judge's resolutions with respect to credibility unless 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 her findings. In the sixth paragraph of sec. 11, D, of her Decision, the Administra- tive Law Judge incorrectly stated that, "Thereafter, Local 363 recalled president Argano's office and left messages." It appears that the Adminis- trative Law Judge intended to state that, " Thereafter, Local 363 called president Argano's office. .. " In par. 6 of the "Conclusions of Law" section of her Decision, the Administrative Law Judge incorrectly stated that Respondent violated the Act by refusing " . to implement and adhere to its contract with Respondent." Apparently, the Administrative Law Judge intended to state that Respondent refused " . . to implement and adhere to its contract with Local 363." We therefore correct these inadvertent errors. 6 In adopting the Administrative Law Judge's Decision in this case, we do not rely upon her statements in the last paragraph of sec. II, "E. Anal- ysis and Conclusions," regarding the contention that Respondent's con- duct was excusable because it was motivated by business interests inas- much as some of its employees had threatened to quit. These statements are unnecessary to our finding of a violation in this case. 6 In par 2(f) of her recommended Order, the Administrative Law Judge incorrectly referred to Local 3, rather than Local 363. We there- fore correct this inadvertent error. 248 NLRB No. 49 fled below, and hereby orders that the Respondent, Argano Electric Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(f): "(f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, copies of all reports made to trustees of the funds to which Respondent's contract with Local 363 call for Respondent to contribute, and all other records necessary or useful to analysis of the sums due under the terms of this Order." DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This case was heard in Brooklyn, New York, on April 18 and 19, 1979, pursuant to a charge filed on April 20, 1978, and a complaint issued on June 15, 1978. As of the close of the hearing, the issues presented by the pleadings were whether Respondent Argano Electric Corp. violat- ed Section 8(a)(2), (3), (5), and (1) of the National Labor Relations Act, as amended (the Act), by entering into a collective-bargaining agreement with Local 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Local 3), in March 1978, and by thereafter refusing to recognize and bargain with Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Local 363), and to implement and adhere to its alleged contract with Local 363 effective between July 1976 and at least June 1979. Upon the entire record, including my observation of the witnesses, and after due consideration of the brief filed by Local 3 and adopted by Respondent, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a New York corporation with its princi- pal office and place of business in New York, New York. It performs work at various jobsites throughout the New York metropolitan area, where it is engaged in the busi- ness of an electrical contractor. During the year preced- ing the issuance of the complaint, a representative period, goods and materials valued in excess of $50,000 were transported and delivered to its various places of business in interstate commerce directly from States of the United States other than the State in which Respon- dent is located. I find that, as Respondent concedes, it is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. Local 363 and Local 3 are labor organizations within the meaning of the Act. ARGANO ELECTRIC CORP. 353 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At the April 1979 hearing, Local 3, Local 363, and counsel for the General Counsel (the General Counsel) agreed that Respondent was at that time an employer en- gaged in the building and construction industry within the meaning of Section 8(f) of the Act. Respondent took no position as to this matter. Pat Bellantoni, who acted as union business agent for Respondent's employees be- tween 1970 and about March 1978, credibly testified that during this entire period Respondent was engaged in the same kind of business. In 1970, Respondent's president, Nicholas Argano, ap- proached his employees and told them that he had signed an agreement with Local 199 and that they were Local 199 members. None of the employees had asked Argano to put them into Local 199. Teamsters Local 819E is the successor of Local 199, Industrial Workers of Allied Trades. On November 23, 1970, Respondent ap- plied for membership in the United Construction Con- tractors Association, Inc. (the Association). The applica- tion stated, inter alia: I (We) understand that as a condition membership and continued membership [sic], I (We) shall abide by the By Laws of the Association. I (We) agree to be bound by, and to comply with the terms of any agreement now existing, or which may hereafter be entered into between the Association and Local 819E International Brotherhood of Teamsters, with the same force and effect as though I (We) had ex- ecuted same as a party. Frank Micelotta, an Association officer since 1964, testi- fied in April 1979 that this application was in the Associ- ation's files, and that it would not have been there unless it had been accepted. In October 1971, Local 819E merged with Local 363.' Employers who first applied for membership in the As- sociation after the merger executed applications substan- tially the same as that executed by Respondent, except that Local 363 was substituted for Local 819E. Respon- dent did not sign an application specifying Local 363. None of the employers who had applied for membership before the merger signed an application specifying Local 363, but some of them thereafter participated in the As- sociation and its contractual negotiations and relationship with Local 363. Micelotta testified that the Association is an association of contractors who are willing to have an agreement with Local 363. Pat Bellantoni, who was Local 819E's business agent before the merger and Local 363's business agent there- after, credibly testified that under the contract with Local 363 between the merger and July 1, 1976, Respon- dent was required to call Local 363 for any men it needed, and that Respondent in fact did so. On April 12, 1974, in a proceeding to which the Association, Local 363, and Local 3 were parties, the Board found, inter alia, that the Association, on behalf of its members, and Local 819E was a division of Local 819, which is still in existence. All Local 819E records were transferred to Local 363 Local 363 were parties to a collective-bargaining agree- ment which ran from November 15, 1970, to November 14, 1973. United Construction Contractors Association, Case 2-RC-16244, 210 NLRB 61 (1974). On August 6, 1974, the Board found in that same proceeding that Re- spondent had been a member of the Association at the time of the original hearing, 2 that it was still a member of the Association, and that a multiemployer unit includ- ing Respondent's employees was appropriate for collec- tive-bargaining purposes. The Board directed an election in that unit. 212 NLRB 767 (1974), in light of 210 NLRB 61.3 That election was held on September 19, 1974. and Respondent's employees participated therein. Pursuant to the results of this election, the Board on October 15, 1975, certified Local 363 as the representative of a unit of "All electricians, electrical maintenance mechanics, helpers and apprentices employed by the Employer- members of the United Construction Contractors Associ- ation, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act." On July 14, 1976, Respondent Argano Electric and Local 3 executed a stipulation that Respondent "is, and has been at all times material herein, a member of the United Construction Contractors Association, ... an em- ployer association of electrical contractors, which per- forms inter alia, the function of negotiating, executing and administering collective-bargaining agreements on behalf of its employer-members, with labor organizations representing employees employed by its employer-mem- bers. "4 Between April 1975 (at least) and mid-March 1977, Respondent paid dues to the Association, although it ap- pears that Respondent may have been in arrears after November 1976. Between April 1975 (at least) and about April 1978, Nicholas Argano, Respondent's president, came to almost every Association meeting, and partici- pated in any discussions that wvere on the floor. 2 This original hearing was held at some time between August 17. 1973, the date of the petition in Case 2-RC-16244, and April 12, 1974, the date of the first Board decision in that case. I find it unnecessary to consult the Board records which show the exact date of that hearing a The Board rejected Local 3's contention that upon an election icto- ry in the unit, Local 3 ought to be certified as representative of the Asso- ciation members individually, as well as for the group. 212 NLRB at 7t,7. fn. 4. Local 3 had filed the representation petition and appeared on the ballot. 4 This stipulation was entered into in connection with a formal settle- ment agreement in Case 29-CC-523, in which Local 3 was the Respon- dent and Argano Electric was the charging party. Local 3 there stipulat- ed to the entry of the Board order, and a judgment by a United States court of appeals, which, inter alia, prohibited Local 3 from exerting pres- sure on any secondary employer to compel it to cease doing business with Argano Electric The Board entered such an order on September 8, 1976, and the order was enforced by the United Stated Court of Appeals for the Second Circuit on December 9, 1976. The complaint in that case alleged, inter alia, that at all times material (i.e., about March 1976), Argano Electric's employees had been members of, or represented for purposes of collective bargaining with the Association by, Local 363. and that Local 3 had been engaged in a labor dispute with Argano Electric arising out of its failure to employ individuals who were members of or represented by Local 3 The record as stipulated to by the parties includ- ed this complaint, but no answer thereto ARGANO ELECTRIC CORP. 353 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The 1976 Collective-Bargaining Agreement Between Local 363 and the Association In June 1976, a collective-bargaining agreement was signed by Association Representative Micelotta and Local 363 Representative Alfred Bellantoni. 5 This agree- ment was to be effective between July 1, 1976, and June 30, 1979, and was to be automatically renewed from year to year thereafter absent written notice of termination by "either party" not less than 60 nor more than 90 days prior to the expiration date. The contract contained, inter alia, a union-shop clause with a 7-day grace period; an exclusive hiring-hall clause; 6 a checkoff clause; clauses requiring employer payments into "Local 363 Pension Fund E," "Local 363 Welfare Fund E," "Local 363 An- nuity Fund E," and "Local 363 Joint Industry Fund E;"7 and clauses setting forth a grievance and arbitration procedure applicable to, inter alia, disputes relating to payment into the aforementioned Funds. In addition, the contract contains the following provisions: ARTICLE I RECOGNITION: 1. The ASSOCIATION agrees, on behalf of its present and future members who are in the Electri- cal Contracting Industry, to comply with the provi- sions of this agreement. 2. The ASSOCIATION, on behalf of itself and its members, acknowledges that the UNION repre- sents a majority of the workers employed in the ASSOCIATIONWIDE unit consisting of the work- ers covered by this agreement employed by the re- spective members of the ASSOCIATION, and has been designated by said electrical workers as their sole and exclusive collective bargaining representa- tive. The ASSOCIATION, on behalf of itself and its present and future members, agrees to recognize the UNION during the entire period of this agree- ment, as the sole and exclusive collective bargaining representative of the workers, covered by this agreement. ... 3. The ASSOCIATION agrees that each member of the ASSOCIATION, as a condition for member- ship (or continued membership) in the ASSOCI- ATION, shall excute a membership application which shall contain the following provision: "We agree to be bound by, and to comply with the terms of any agreement now existing or which may hereinafter be entered into between the ASSOCIATION and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 363, with the same force and effect as though we had by these present executed the same as a party." The agreement was signed in the presence of, inter alia, other Associ- ation members. Nicholas Argano was not present. 6 However, the employer was permitted to procure workers from other sources if Local 363 could not furnish a satisfactory worker within 48 hours after written request. The contractually expressed purpose of the "Local 363 Joint Indus- try Fund E" was "to develop and improve the educational qualifications" of the employer's employees. A duplicate original of the membership applica- tion shall be sent to the UNION by the ASSOCI- ATION within five (5) days after its execution by a member. ARTICLE XXV8 CONTRACT SURVIVAL: (A) The loss of Membership by an Employer in the Association, in any fashion or manner, whether by act of the Employer, or by the Association, shall in no fashion or manner relieve the Employer of the obligations under this Agreement. All provisions shall remain in full force and effect. In such event, the renewal terms of this Agreement shall be bind- ing upon such Employer in his individual capacity. C. Relationship Between Respondent and Local 363 Before March 1978 Local 363 Business Representative Pat Bellantoni testi- fied that Respondent had had a contract with Local 819 from at least 1970 until its 1971 merger with Local 363, and with Local 363 thereafter. Local 3's brief renews, in effect, Local 3's motion at the hearing to strike Bellan- toni's testimony in this respect, which motion I denied at the hearing with leave to renew if appropriate support- ing documents were not offered. Respondent's alleged contract with Local 819 was not offered into evidence, and I hereby grant Local 3's motion to strike as to this contract. However, I deny Local 3's motion to strike in connection with Respondent's contract with Local 363 between November 1970 and July 1, 1976, on the basis of the Board's 1974 findings in United Construction Con- tractors, supra, 210 NLRB 61 and 212 NLRB 767 (1974); on the basis of Bellantoni's testimony, as to which no motion to strike was filed, that between the merger and July 1, 1976, Respondent was contractually required to and did hire through Local 363; and on the basis of evi- dence discussed infra about Respondent's payments to Local 363 Funds pursuant to an arbitrator's award cover- ing a period beginning on September 26, 1975. Whether Respondent was a party to the 1976-79 contract will be determined infra. Of Respondent's premerger work force, 5 to 10 per- cent were recruited from Local 819E. About half of Re- spondent's work force between the merger and July 1976 were recruited from Local 363. About 25 percent of Re- spondent's 1978 work force were recruited from Local 363. The most recent of such referrals were made in the fall of 1977, pursuant to a request from President Argano to Business Representative Pat Bellantoni, and all em- ployees so referred were already Local 363 members.9 s This article should probably be numbered XXXV. D This finding is based on Pat Bellantoni's testimony. Contrary to Re- spondent and Local 3, such testimony is not impeached by the fact that in a 1977-78 arbitration proceeding discussed infra, the documents filed by Local 363 do not name, as employees on whose behalf Respondent was required to make payments into various Local 363 funds, three em- ployees whom he named as having been referred to Respondent by Local 363-Ed Zayes, Sr., Ed Zayes, Jr., and Nick Fevola. These documents Continued ARGANO ELECTRIC CORP. 355 Between September 1970 and the October 1971 merger, all of Respondent's employees were members of Local 819E. Between the date of the merger and February 1978, all of Respondent's employees were members of Local 363. At least after July 1, 1976, all of them were dues-paying members during this period. In late 1977, an employee laid off by Respondent complained to Local 363 that he had not received his vacation pay. Local 363 asked President Argano to send the money within 7 days and he did so. By letter to Respondent dated October 17, 1977, the board of trustees of the Local 363 Welfare, Pension, Joint Industry, and Annuity Funds E alleged that Re- spondent had failed to keep a "verbal agreement" to make past-due and current payments, and demanded im- mediate payment of amounts, totaling about $30,000, which had allegedly accrued during the period between September 26, 1975, and October 1, 1977. Over date of December 5, 1977, Arbitrator Haskell Wolf sent Respon- dent a notice of hearing "In the matter of the Arbitration between Local 363 IBT Union and Argano Electric Corp. Employer." The notice stated, "The Union alleges that a dispute has arisen under the Collective-Bargaining Agreement between the parties concerning Employer ar- rears with respect to contributions to Welfare, Pension, Annuity and Joint Industry Funds." The notice went on to say, "in case either party fails to attend without having previously shown good and sufficient cause for his absence, I shall, at the request of the other party, pro- ceed with the hearing exparte." At the request of Re- spondent through President Argano, the arbitration hear- ing was postponed until January 19, 1978. Respondent failed to appear at this January 1978 hearing. The arbi- trator's award stated that the Union had sought a deter- mination under "the labor contract between the parties" regarding Respondent's failure to make payments "pursu- ant to the terms of the collective-bargaining agreement between the parties." The award went on to state that the Union had "set forth the applicable provisions of the contract," and directed Respondent to pay to the Funds "at once" amounts totaling about $29,000. Thereafter, Gordon Canizio, as president of Local 363, filed a motion in state court to confirm the arbitrator's award. On May 23, 1978, a settlement was executed between Canizio as president of Local 363 and as chairman of the board of trustees, Respondent Argano Electric Corp., and Nicholas Argano. Nicholas Argano personally and Respondent undertook to pay a total of about $22,000 in 24 monthly payments over a period ending in mid-1980, and further agreed to a $29,000 judgment against Nicho- las Argano personally and Respondent in the event of a default in any one installment.' 0 As of the hearing before do not purport to name the specific employees on whose behalf 1977 payments should have been made. The record affirmatively shows that the Zayeses were referred to Respondent in 1977, and fails to show that Fevola was hired before 1977. The claims of Respondent and Local 3 in this respect are difficult to reconcile with their further claim (infra. fn. 11) that the record fails to show that the arbitration proceeding was brought under the 1976 contract between Local 363 and the Association. 10 The 1976 contract between the Association and Local 363 renders a corporate employer's stockholders and directors personally responsible for payments into the Funds. me in mid-April 1979, Respondent had regularly made the payments called for by this settlement. " D. Respondent's Execution of a Contract With Local 3 About March 1978, Local 3 and various other unions set up picket lines at the Prince George Hotel construc- tion site because the work there was being performed by workers who were not members of the AFL-CIO build- ing trades. Respondent was performing work at that job- site with four members of Local 363, which is not affili- ated with the AFL-CIO-namely, Louis Squillante, his brother John Squillante, Carlos Sarauw, and Barrington Brandt. The Squillantes are brothers-in-law of President Argano. At all relevant times, Louis Squillante has been Respondent's only superintendent. His duties include taking care of the jobs and the men. He became superin- tendent no earlier than November 1977. Between becom- ing superintendent and April 1979, he recommended the discharge of five employees, all of whom were dis- charged. As of March 1978 he was paid $400 a week; so far as the record shows, at that time the next highest paid person on the payroll received $7.20 an hour, or $288 for a 40-hour week. 2 I find that Louis Squillante has the power, in the exercise of independent judgment, effectively to recommend discharge and responsibly to direct employees, and that he is a supervisor within the meaning of Section 2(11) of the Act. Local 3 is a union which is sometimes difficult to join. While the picketing was in progress, Local 3 Business Representative Bernard Rosenberg told Respondent's personnel on the job that Local 3 had better wages, working conditions, and benefits than Local 363, and told them that they could join Local 3 if they told Re- spondent that they were "coming into" Local 3 and would quit if Respondent did not sign an agreement with Local 3 "Because we want to be with Local 3.... Be- cause we know there's a good future for each and every one of us and our families." Sarauw decided that he wanted to accept Local 3's offer, and spoke about the matter to two other employ- ees, possibly Brandt and John Squillante. The three ad- vised Supervisor Louis Squillante that they were plan- ning to take the matter up with the rest of the shop. All four men on the Prince George job discussed the matter with other shop personnel. Supervisor Louis Squillante actively participated in or was present during some of these discussions. All of Respondent's personnel decided l Because Local 363's letter to Respondent demanding the payments sets forth the names of several persons identified in the record as Respon- dent's electricians, at least two of whom (Sarauu and Brandt) were re- ferred to Respondent through Local 363, funds specified in Local 363's 1976 contract with the Association, and because the 29,849.01 amount granted in the arbitrator's award is exactly the amount specified in the demand letter, I do not accept the contention of Respondent and Local 3 that the record fails to show that the contract under which Local 363 successfully brought this proceeding against Respondent was Local 363's contract with the Association. See also supra, fn 9. Although the con- tract contains provisions for Funds claims to be arbitrated by a three-man panel. the contract further provides, under some circumstances which may have existed here, for a single arbitrator named by the New York State Board of Mediation or the American Arbitration Association 12 This was Ralph Squillante, the brother of Louis and John Squil- lante ARGANO ELECTRIC CORP 355 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Local 3's offer was good. The four Prince George men, including Supervisor Louis Squillante, went to President Argano; told him that they wanted to go to Local 3; stated that they had a "better deal" and the pay and benefits were better under Local 3; and further said that if Respondent did not "go Local 3," they would quit. Argano said that this would cost a lot of money, he would think about the mattter, and he would let Louis Squillante know the following day. A day or two later, Argano told these four individuals that he would "go Local 3," that this would be "better for the organization, the shop." 13 Shortly thereafter, on March 22, Supervisor Louis Squillante told 10 employees to meet him at the Local's union hall. After work on that date, 13 persons on Re- spondent's payroll, including Supervisor Louis Squil- lante, met at Local 3's hall. Ten of them, including Su- pervisor Louis Squillante, signed membership cards au- thorizing Local 3 to represent them for collective-bar- gaining purposes. 4 At least two of the nine signatory employees, and probably all of them, signed in Supervi- sor Louis Squillante's presence. No contention is made that the nine employees who signed Local 3 cards on that day constituted less than a numerical majority of Respondent's rank-and-file electricians. After these cards were signed, Local 3 removed its pickets from the Prince George job, and Nicholas Argano executed, on Respon- dent's behalf, a collective-bargaining agreement with Local 3. This contract was to be effective until June 30, 1979, and was to be automatically renewed from year to year thereafter unless one of the parties gave written notice 90 days before June 30 of a desire to modify or terminate the agreement.' Paragraph 12 of the complaint as issued in June 1978 alleged, inter alia, that the agreement between Local 3 and Respondent "requires that the employees covered by said agreement become and remain members of Local 3 as a condition of employment and continued employ- ment." This allegation was denied in the answers filed by Respondent and by Local 3. During the April 1979 opening statement by Local 3's counsel, I asked him whether Local 3 had a union-security clause in its con- tract with Argano. He replied, "Local 3 does not have a Union Security Clause in connection with Argano." The General Counsel rested his case without offering into evidence the contract between Respondent and Local 3. 1 While arguing that the complaint should be dis- missed on the ground that the General Counsel had failed to make out a prima facie case, Local 3's counsel stated that he had been asked whether there was a "union shop" clause in the contract and that he had an- '3 My findings in this paragraph are based on a composite of credible portions of the testimony of Sarauw, Louis and John Squillante, and Brandt. For demeanor reasons, I do not accept Sarauw's testimony that they told Argano that they were going to change unions whether or not he recognized Local 3, and if he decided to stay in Local 363 that was his own business. 14 The record fails to show whether the two employees not summoned by Supervisor Louis Squillante were given the opportunity to, wanted to, or did sign cards. i' Supervisor Louis Squillante was in the contract unit. '6 The General Counsel subpenaed Company President Argano, but upon his failure to appear, elected to proceed without enforcing the sub- pena. swered no "And of course that is not evidence," and that "we have no Union Security clause in the contract re- ferred to." Thereafter, the General Counsel stated on the record that he had put in no evidence that, pursuant to Local 3's contract with Argano, membership is required, and moved to withdraw paragraph 12. Local 363's coun- sel objected to the motion on the ground that "I have not seen the contract and I don't know whether or not that's true. And there's been no evidence presented in the chief case." Over this objection, I granted the motion to withdraw paragraph 12. Later that day, Local 3 of- fered the contract into evidence. Then, the General Counsel moved to reinstate paragraph 12 of the com- plaint on the basis of union-security provisions set forth in article XII, section 11, of the contract. I denied this motion on the ground, in substance, that this clause covers administrative employees only. The May 1979 brief filed by Local 3 and Respondent states at page 13 that their contract "does contain a maintenance of mem- bership clause-Article I (g)," which clause provides, "All employees who are or become members of the Union shall remain members of the Union in good stand- ing during the term of this Agreement as a condition of employment." Although served with this brief, neither the General Counsel nor Local 363 has moved to rein- state paragraph 12 of the complaint on the basis of this maintenance-of-membership clause. In March or April 1978, Local 363 members Barry Chan and Nick Fevola told Local 363 Representative Pat Bellantoni that "Nick Argano and Argano Electric had gone Local 3 and they were let go at that time be- cause he was only allowed to take in 10 people."' 7 Thereafter, Local 363 recalled President Argano's office and left messages, which he never returned. The com- plaint alleges, neither Respondent's answer nor Local 3's answer denies, and I therefore .find that since about March 20, 1978, Respondent has refused to recognize or negotiate with Local 363 as the collective-bargaining representative of its employees. The complaint further al- leges that since about March 20, 1978, Respondent has failed and refused to implement and adhere to the terms and conditions of its collective-bargaining agreement with Local 363. This allegation is not denied in Respon- dent's answer. Local 3's answer denies that Respondent had a contract with Local 363. In view of my subsequent finding otherwise, and in view of the foregoing plead- ings, I find the foregoing complaint allegation to be true. By letter to the Association dated April 11, 1978, but not received until May 3, 1978, Respondent stated: As of this date, we wish you to remove the name of Argano Electric Corp., from your membership rolls. Our last dues payment was March 15th, 1977, in the amount of $100.00. Since we have not main- 17 The complaint alleged that Chan and Fevola were discharged be- cause they were not members of Local 3, in violation of Sec. 8(a)(3) and (I). Although under subpena issued at the General Counsel's instance, Fevola failed to report to the hearing room on the second day of the hearing, when the General Counsel planned to have him testify. The General Counsel elected to rest without seeking enforcement of the sub- pena, whereupon I granted a motion to dismiss the complaint allegations as to Chan and Fevola on the ground that no prima facie case had been made to support such allegations ARGANO ELECTRIC CORP. 357 tained our membership, we feel, we are under no obligation to the [Association]. By letter to Respondent dated June 7, 1978, the Asso- ciation acknowledged receipt of Respondent's "letter of resignation"; drew Respondent's attention to "Section 4" of the Association's bylaws; stated that Respondent was responsible for the dues until the June 1979 expiration of the contract with Local 363; and demanded dues for the period between November 1976 and June 1979, totaling $1,000. By letter to the Association dated June 29, 1978, Respondent asserted that it had never received a copy of the bylaws even after making requests for them, and asked for a copy of the bylaws or of section 4 thereof. By letter to Respondent dated July 18, 1978, the Associ- ation enclosed a copy of the bylaws, stated that its pro- cedure had always been to provide a copy of the bylaws to each new member upon signing an application for membership,' s and further stated, "We regret that you may have misplaced these regulations, but it is not our concern." Article III, section 4, of the bylaws forwarded to Respondent states in part: (a) . . . All resignations shall be . . . forwarded . . . together with payment in full of all obligations to the Association, and shall not be effective until duly accepted and formally acted upon by the [Ex- ecutive] Board [of the Association]. (b) Each member will retain its membership in the Association pursuant to its Bylaws from the date of its acceptance into the Association until the conclusion of a collective bargaining agreement en- tered into by the Association. In the event the member is not covered by a collective bargaining agreement whose [sic] membership shall be from year to year. E. Analysis and Conclusions The General Counsel contends, in substance, that Re- spondent violated Section 8(a)(2), (3), (5), and (1) of the Act by recognizing and contracting with Local 3 at a time when Respondent was bound by a contract with Local 363, and by thereafter failing and refusing to rec- ognize Local 363 and to honor 363's contract. I agree. As Respondent and Local 3 do not appear to dispute, the foregoing statutory provisions are violated where an employer recognizes and contracts with one union as his employees' exclusive bargaining representative at a time when the employer and another union are bound by a current contract which recognizes that union as the ex- clusive bargaining representative of the same employees; and thereafter fails and refuses to recognize the latter union and to honor its contract. Southern Oregon Log Scaling and Grading Bureau, 223 NLRB 430 (1976); Ed- wards & Webb Construction Company, 207 NLRB 614 (1973); Tricor Products, Inc. and/or C & J Pattern Co., 239 NLRB No. 13 (1978). Furthermore, I agree with the General Counsel that Respondent was bound by the con- 8 Micelotta, who had been an Association officer since 1964, testified that this had indeed been the practice, but that Micelotta had not person- ally given a copy to Respondent. His testimony and the letters aside, there is no evidence as to whether Respondent had received a copy before receiving the letter of July 18, 1978. tract between Local 363 and the Association and reject the contrary claim of Respondent and Local 3. Respon- dent joined the Association about late 1970, actively par- ticipated in its affairs until April 1978, and did not at- tempt to withdraw until May 1978. The Board found that Respondent was an Association member in 1974. Later, Respondent and Local 3 stipulated that in March 1976 Respondent was a member of the Association. The Association consists of contractors willing to have an agreement with Local 363. Further, in June 1976 the As- sociation entered into the 1976-79 contract "on behalf of its present and future members." Moreover, in late 1977, after being advised that the Union was seeking arbitra- tion of a money claim against Respondent under the con- tract, Respondent made no claim that the contract did not bind it. Instead, Respondent initially made a success- ful request for postponement of the arbitration hearing, and later, through its president, entered into and com- plied with a settlement of the $29,000 arbitration award which required it and its president to pay a total of about $22,000 over 2 years and agreed to a $29,000 judgment in the event of a default in any one installment. The sums involved in this arbitration proceeding are too substantial to warrant an inference that Respondent and its president were merely seeking to buy off a nuisance claim.'9 Fur- thermore, until late 1977 Respondent hired employees through Local 363, as the 1976-79 contract required em- ployers to do. Moreover, in May 1978 the Association advised Respondent, in effect, that the Association re- garded Respondent as bound by the contract; and there is no evidence that Respondent ever advised the Associ- ation that this belief was erroneous. In claiming that Respondent was not bound by the 1976-79 contract with Local 363, Local 3 and Respon- dent rely largely upon the Atlas Electrical Service case, 2 0 which put at issue, inter alia, whether a particular em- ployer was bound by a 1967 contract between the same Association involved herein and Local 199, Local 363's predecessor. The Board's conclusion that the employer was not so bound rested partly on testimonial evidence that with Local 199's acquiescence, after contracting with Local 199 the Association followed a policy of re- quiring each employer member to reapply for member- ship and to pay dues in advance for the entire period of the contract before he would be permitted to retain his membership in the Association and would be bound by the contract. In addition, the Board relied on a contract clause, precisely like the clause in the 1976-79 contract 19 The stipulation of settlement between Local 363 and Respondent and its president provides that Local 363 "will cause a General Release to be delivered to the Respondent, together with a discontinuance, with prejudice, of this proceeding," if the sums indicated on the annexed schedule are fully paid The schedule sets forth payments into the funds attributable to periods between September 1975 and October 1977 The settled proceeding consisted of a motion to confirm an arbitrator's award of payments to those funds, which award had approved the request of the funds' board of trustees for such payments attributable to such peri- ods. Moreover, the notice of hearing signed by the arbitrator stated, "The Union alleges that a dispute has arisen under the Collective Bar- gaining Agreement between the parties concerning Employer arrears with respect to contributions to [the] Funds." I perceive no basis for the contention of Respondent and Local 3 that the settlement contemplated a "General Release" of "any further Teamster claims against Argano" 0o Atlas Electrical Service Co., 176 NLRB 825 (1969). ARGANO ELECTRIC CORP. 357 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except for the union's name, in which the Association agreed that as a condition of membership, each member would execute, and forward to Local 199, an undertak- ing to "be bound by, and comply with the terms of any agreement now existing or which may hereafter be en- tered into between the Association and . . . Local 199, with the same force and effect as though we had by these present executed the same as a party." Atlas read this clause as requiring that each Association member reapply for membership and at the same time agree to be bound by and comply with the terms of the new con- tract. However, the instant record establishes that the Association and Local 363 did not follow the same prac- tice, or interpret this contract clause in the same way, as when Local 199 had been the bargaining representative, and during a period before Respondent applied for mem- bership in the Association. Instead, employers who before the October 1971 merger had signed an applica- tion for membership and an undertaking to be bound by the Association's contracts with Local 815E were per- mitted after the merger, and without executing any new applications or undertakings, to participate in the Associ- ation and its contractual negotiations and relationship with Local 363. For the foregoing reasons, I conclude that Respondent was bound by the 1976 collective-bargaining agreement executed by the Association and Local 363. Local 3 and Respondent further contend that assuming Respondent was bound by the Local 363 contract, Re- spondent's 1978 action in contracting with Local 3 was not unlawful because Respondent allegedly violated the Act in 1970 by recognizing Local 199, Local 363's pre- decessor, at a time when Local 199 did not enjoy major- ity support. Such a contention is barred by Section 10(b) of the Act. 21 Moreover, if the 1970 relationship was valid ab initio because Respondent was in the building and construction industry within the meaning of Section 8(f) of the Act, 22 Local 363 subsequently acquired the status of the employees' representative under Section 9(a) by virtue of Local 363's certification as the representa- tive of a unit including Respondent's employees, such employees' Local 363 membership over a period of many years, and Local 363's precertification contractual rela- tionship with respect to Respondent's employees. Haber- man Construction Company, 236 NLRB 79 (1978); R. J. Smith Construction Co., Inc., 191 NLRB 693, 695, fn. 5 (1971), reversed 480 F.2d 1186 (D.C. Cir. 1973), cited with approval in N.L.R.B. v. Local Union No. 103, Inter- national Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO [Higdon Construction Co.], 434 U.S. 335 (1978); David F. Irvins and James B. McKelvy, d/b/a The Irvin-McKelvy Co., 194 NLRB 52 (1971), enfd. 21 N.L.R.B. v. District 30, United Mine Workers of America., and Local 8280, United Mine Workers of America [Blue Diamond Coal], 422 F.2d 11 5 (6th Cir. 1969), cert. denied 398 U.S. 959 (1970); International Hod Carri- ers. Building & Common Laborers' Union of America, Road & Heavy Con- struction, Local 1298, AFL-CIO (Roman Stone Construction Company, and Kindred Concrete Products, Inc.), 153 NLRB 659 (1965); Lane-Coos-Curry- Douglas Counties Building and Construction Trades Council AFL-CIO v. N.L.R.B., 415 F.2d 656, 659, fn. 7 (9th Cir. 1969). 2a See Fenix Id Scisson. Inc., 207 NLRB 752, 759 (1973), enfd. 506 F 2d 1404 (7th Cir. 1974); Progressive Construction Corp., 218 NLRB 1368 (1975). in pertinent part 475 F.2d 1265 (3d Cir. 1973), cited with approval in Higdon, supra, 434 U.S. at 345-346. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(2), (3), (5), and (1) of the Act by rec- ognizing and contracting with Local 3, and by thereafter failing and refusing to recognize Local 363 and dishonor- ing its contract with Respondent. As construed by the General Counsel at the outset of the hearing, the complaint herein alleged as appropriate a unit confined to Respondent's employees. This allegation was denied by Respondent, but not by Local 3, whose contract with Respondent covers such a unit. After call- ing his last witness, the General Counsel moved to amend the complaint so as to allege as appropriate a unit consisting of employees of the employer-members of the Association. Local 363's counsel stated that this motion should be granted. Respondent's counsel took no position as to this motion, and stated that if it was granted, Re- spondent's answer would deny the appropriateness of that unit also. Local 3 opposed the motion, but as indi- cated infra, its brief approaches, if indeed it does not make, the assumption that Local 363's contract with the Association encompassed a multiemployer unit. At the hearing, I withheld ruling on the motion. Because Re- spondent's employees were included in the certified mul- tiemployer unit, because Respondent made no attempt to withdraw from the Association during the 9-month period between the certification and the execution of the contract with Local 363, because the contract states that the unit is "Association-wide," and because I have found that Respondent was bound thereby when it executed a contract with Local 3, I find that the multiemployer unit was appropriate until, at the earliest, June 30, 1979. Ac- cordingly, I hereby grant the General Counsel's motion for leave to amend the complaint in this respect. Howev- er, because the appropriateness of the unit after the ex- ecution of the contract does not turn on whether Re- spondent remained a member of the Association, 23 and because Respondent at least tried to resign from the As- sociation about May 1978, the unit found appropriate will encompass employers who were members of the As- sociation on the date the contract was signed. Respondent's and Local 3's brief relies on several cases setting forth circumstances under which employers are permitted effectively to withdraw from multiemployer units during a contractual hiatus. However, none of these cases suggests that such circumstances would empower an employer who has been bound for almost 2 years by a 3-year contract covering a multiemployer unit unilateral- ly to escape his obligations under that contract by unilat- erally withdrawing from the multiemployer unit, wheth- er by resignation from the contracting association or oth- erwise. 24 Such unilateral employer action is in no re- spect legally distinguishable from an employer's midterm unilateral effort to abrogate a collective-bargaining agreement covering his employees alone. 2a Chicago Magnesium Castings Company, 240 NLRB No. 57 (1979). a4 Cf. N.L.R.B. v. Joseph T. Strong, d/b/a Strong Roofing and Insulat- ing Co., 386 F.2d 929 (9th Cir. 1967), employer's petition for cert. denied 390 U.S. 920 (1968), reversed in other respects on Board's petition for cert. 393 U.S. 357 (1969); Chicago Magnesium Castings. supra. ARGANO ELECTRIC CORP. 359 I regard as unmeritorious the contention that Respon- dent's action was justified because 4 members of its work force (consisting of 13 to 18 persons) told Respondent that they wanted to go to Local 3, they had a better deal, and that if Respondent did not "go Local 3," they would quit. Conduct otherwise unlawful is not automati- cally excused upon a showing that it was motivated by business exigencies. Rather, the business end to be served by such conduct must be balanced, in the light of the Act and its policy, against the adverse effects of such conduct upon employee rights. N.LR.B. v. Erie Resistor Corp., 373 U.S. 221, 229 (1963); N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 (1967). The evidence herein does not even show that these four persons would have quit unless Respondent contracted with Local 3. In the first place, Respondent's personnel advised Respon- dent that their desire to "go Local 3" was to a large extent motivated by a desire for better wages and work- ing conditions. However, so far as the record shows, Re- spondent did not propose such improvements to Local 363, which might well have agreed thereto. Moreover, Argano (who did not testify) likely suspected that in threatening to quit after working for Respondent for 9 years, his two brothers-in-law, at least, were bluffing. 2 Furthermore, the evidence that Respondent hired Sarauw and Brandt through Local 363's hiring hall indi- cates that qualified replacements could have been ob- tained for them from the same source, there is no reason to suppose that the two Squillantes were irreplaceable, and there is no evidence that any of the remaining mem- bers of the work force ever said anything about quitting unless Respondent signed a contract with Local 3. Under these circumstances, the business interests which Respon- dent elected to serve by offering economic improve- ments to Local 3 instead of Local 363 are outweighed by the statutory purpose of industrial stability,26 particularly because of the improper pressures exerted on other Local 363 members to sign Local 3 cards after Respon- dent had agreed to recognize it but before it contracted with that union (see infra). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 363 and Local 3 are labor organizations within the meaning of Section 2(11) of the Act. 3. At least until June 30, 1979, the following employ- ees constituted a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All electricians, electrical maintenance mechanics, helpers and apprentices employed by the employer mem- bers of the United Construction Contractors Association as of the date of execution of the 1976 contract with Local 363, excluding all office clerical employees, guards and supervisors as defined in the Act. 4. Respondent's employees have been included in that unit at all times material herein. 2 Employee Sarauw's testimony summarized supra, fn. 13, indicates that he too may have been bluffing. 26 Cf. Atlas Electrical. supra, 176 NLRB at 830, where all the employ- ees threatened to quit and replacements for them were not available available through the contracting union or in the labor market. 5. At all times material herein, Local 363 has been the exclusive bargaining representative of the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. 6. Respondent has violated Section 8(a)(2), (3), (5), and (1) of the Act by recognizing and contracting with Local 3, and by failing and refusing to recognize Local 363 and to implement and adhere to its contract with Respon- dent. 7. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be re- quired to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent will be required to withdraw and withhold recognition from Local 3 unless and until it is certified by the Board; to recognize and, on request, to bargain with Local 363; and to implement and adhere to its July 1976 contract with Local 363 and any renewal thereof. In view of Respondent's and Local 3's conten- tion that their contract is more advantageous to the em- ployees economically than Local 363's contract, nothing in the recommended Order will require Respondent to take any action unfavorable to any individual employee regarding wages, hours, and other substantive terms and conditions of employment; but this provision is not to be read as limiting Local 363's rights as exclusive bargaining representative in connection with changes made unilater- ally as to it.2 7 I regard as unmeritorious Respondent's and Local 3's contention that Respondent should not be required to withdraw recognition from Local 3 and to recognize Local 363 because the employees allegedly want repre- sentation by Local 3 and Local 363's contract has alleg- edly expired. The record fails to show that Local 3 was the employees' uncoerced representative at the time that Respondent recognized Local 3 in March 1978, in view of Supervisor Louis Squillante's active participation in the organizational effort for Local 3; Argano's statement to him and three employees, before any cards had been signed for Local 3 and before any claim that it had a ma- jority, that Respondent would recognize that union; and Respondent's acknowledged willingness to give Local 3 a better economic package than Respondent gave Local 363 an opportunity to accept. 28 Cf. N.L.R.B. v. Marcus Trucking Company, Inc., 286 F.2d 583, 587, 588, 594-595 (2d Cir. 1961), where the employees freely chose the new union, and N.L.R.B.v. Mark R. Clegg & Mary M. 27 Local 363's 1976 contract provides, inter alia. "Nothing in any pro- vision of this agreement shall be so construed ... as to effect a reduction in wage of any worker, or increase the number of hours per week which the worker shall be compelled to work in order to earn his present weekly wage." as Local 3's and Respondent's bnef asserts that Respondent "did not reduce his payroll costs by signing a contract with Local Union No. 3 but greatly increased his payroll." Partly because the record fails to show the July 1977-June 1979 wage scale called for by Local 363's contract, the accuracy of this assertion is difficult to determine. (However, the March 1978 card-signers entered their current wage scale on the Local 3 authorization cards.) ARGANO ELECTRIC CORP. 359 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clegg, d/b/a Clegg Machine Works, 304 F.2d 168, 176 (8th Cir. 1962), where they freely rejected the old one. Accordingly, any showing of subsequent majority is im- material. International Ladies' Garment Workers' Union AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B. 366 U.S. 731, 736 (1961). Respondent offered to show that 30 or 40 of Respon- dent's employees, a substantial number of whom must have been hired after Respondent contracted with Local 3,29 would leave Respondent's employ if Respondent were ordered to resume recognizing Local 363, in order to maintain their equities under various benefit plans ad- ministered under Local 3 contracts,30 and because of the alleged substantial disparity in the wages and other bene- fits between Local 3's and Local 363's contracts-an al- leged disparity which may be limited after compliance with the remedial order herein. To the extent that Re- spondent and Local 3 may be relying on the allegedly adverse impact of such resignations on Respondent, I note that qualified replacements for these Local 3 em- ployees could probably be obtained through Local 363. Moreover, because Respondent's unlawful action in con- tracting with Local 3 encouraged job applicants whose existing fringe benefits could be improved or preserved by continued coverage under such a contract, permitting the continuation of that contract on the ground that such employees might otherwise resign would approach a de- termination that the likely effects of an unfair labor prac- tice excuse a respondent from remedying it. Respondent and Local 3 may be suggesting that a Board order alleg- edly encouraging these employees to resign would be unfair to them. Even aside from the fact that compliance with the Order herein may well leave in effect working conditions better than those which Local 363's contract would have required if Respondent had never made im- provements called for by its contract with Local 3, I see nothing unfair in requiring the employees who were Local 363 members and were working for Respondent while it was still honoring Local 363's contract to accept the contract conditions or go elsewhere. Of course, many of Respondent's present employees had previously worked under Local 3 contracts with other employers 29 Respondent's nonsupervisory work force at that time totaled no more than 17 (see, supra, sec. Il,D). Both of the after-hired employees whom Local 3 actually called to the witness stand were hired through Local 3. 30 Under Local 3's contracts, an employee's eligibility for pension, dis- ability pension, and annuity benefits, and the size of such benefits, are de- termined by the length of his employment with employers who have con- tributed to Local 3's pension and annuity plans. However, an employee who ceases such employment before retirement age retains vested annuity rights and may retain vested rights in the pension plan. Also, an employ- ee's right to obtain supplementary unemployment, supplementary work- men's compensation, supplementary disability, supplementary vacation, and supplementary economic assistance benefits, and his family's right to obtain supplementary death benefits, depend, in effect, on how long the employee worked under Local 3 contracts. In addition, in order to obtain medical, hospitalization, surgery, dental, and optical benefits, an employ- ee must have been employed under a Local 3 contract, or available for employment, for 6 months immediately preceding the incident which gave rise to the claim; the period for rest home eligibility is 12 months. Six months' coverage under a Local 3 contract is also required for death and pension premiums. The contract which is identical to Local 3's con- tract with three employer associations forbids journeymen electricians to work for any employer who is not a party thereto or to an agreement containing the same terms. and might not have sought jobs with Respondent unless they enabled the employees to maintain continued Local 3 contract coverage. However, as to these employees, Respondent's unlawful action in contracting with Local 3 merely had the effect of increasing by one the number of employers with whom such employees could maintain such continued Local 3 coverage. An order requiring Respondent to stop recognizing Local 3 would simply reduce this number to its previous size. Accordingly, such an order would merely put these employees in sub- stantially the same market position they would have oc- cupied if Respondent had at all times complied with its legal duty to honor Local 363's contract.31 Moreover, although Local 363's contract bears an expiration date of June 30, 1979, several months before the date of this De- cision, that contract was to be automically renewed from year to year thereafter, unless written notice of termina- tion was given by either party between about April 1 and May 1, 1979. The instant hearing was held in mid- April 1979 and Respondent adopted Local 3's May 18, 1979, brief by letter dated May 16, 1979, but there is no evidence or claim that either party gave timely notice of termination. Accordingly, the record fails to show that Local 363's contract has expired. 3 2 Also, Respondent will be required to make its employ- ees whole for any losses they may have suffered by reason of Respondent's failure to implement and adhere to that contract or any renewal thereof, all with interest as called for in Florida Steel Corporation, 231 NLRB 651 (1977). 33 Payments, if any, flowing from loss of jobs shall be computed in the manner prescribed in F W Woolworth Company, 190 NLRB 289 (1950). I reject the contention of Local 3 and Respondent that such a make- whole order would be inappropriate because Local 3's contract allegedly increased Respondent's payroll costs. Assuming this to be true (see, supra, fn. 28), it would not necessarily mean that no individual mployee suffered any losses. Of course, the payment to which an individ- ual employee is entitled under this recommended Order is limited to his losses in consequences of Respondent's unfair labor practices. In addition, Respondent will be required to make the payments to the Local 363 Pension Fund E, the Local 363 Annuity Fund E, the Local 363 Welfare Fund E, and the Local 363 Joint Industry Fund E, which are re- quired by Local 363's July 1976 contract with Respon- dent and any renewal thereof and have not been made; whether interest must be paid thereon is left to the com- pliance stage. Morelli Construction Company, 240 NLRB No. 170 (1979); Pacific Aggregates, Inc., and its affiliates, including Franklin Material Company, 231 NLRB 214, 221-222 (1977); F & F Construction Co., Inc., 235 NLRB 3l Local 3 also offered to prove that employees Sarauw and Brandt had spent some years in Local 363 and had received no annuity money. Both of these employees were working for Respondent while it was still honoring Local 363's contract. At the time they testified, they were still working for Respondent and Local 363's contract had not reached its earliest possible expiration date I perceive no significance whatever to their alleged failure to receive annuity money. 32 As previously noted, the contract purports to render its renewal binding on Respondent assuming it is no longer a member of the Associ- ation. 3 See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). - -- ARGANO ELECTRIC CORP. 361 1440 (1978); Ellis Tacke. d/b/a Ellis Tacke Company, 229 NLRB 1296 (1977). In a post-hearing letter with copies to the other parties, Local 3 contends that such a re- quirement would be improper because "general contribu- tions to the funds would afford no remedy to the em- ployees," citing Coletti Color Prints, Inc. (formerly Coletti Associates), 204 NLRB 647 (1973). However, Coletti (unlike here) involved a bargaining agreement with a union which, following the expiration of the agreement, lost a Board-conducted election; and, further, involved school and medical-insurance funds from which the em- ployees could benefit only during the life of the contract which required such payments. Here, however, Respon- dent remains under a continuing obligation to recognize and bargain with Local 363. Furthermore, at least as to the pension and annuity funds, it was probably contem- plated that the employees would receive benefits, not during the term of the contract, but upon their retire- ment many years later. See Southland Dodge, Inc., 232 NLRB 878, 879 (1977). Moreover, even as to the welfare and joint industry funds, the right of Respondent's em- ployees to benefit therefrom may depend on their having been covered by a Local 363 contract for a minimum length of time.34 In any event, as was said in Pacifc Ag- gregates, supra, 231 NLRB at 222: the Board and the courts have long held that contri- butions to fringe benefit trust funds such as those in- volved here are the equivalent of wages which the employees have earned by their labor. See Hen House Market, supra, [175 NLRB 596 (1969), modi- fied 428 F.2d 133 (8th Cir. 1970)1; Atrim Transporta- tion System, Inc., 193 NLRB 179, 184 (1971). In es- sence, the unit employees in such situation have agreed, through their bargaining representative, that this part of their compensation shall be paid into the various funds. These funds rebound to the benefit of the entire unit as well as the individual. Indeed, the individual may for one reason or another never re- ceive any personal benefit from these funds. He nevertheless has an interest in the continuance of the funds and their financial stability, for as long as he remains in the industry he may benefit thereby. The return to these funds of contributions the Re- spondent was obligated to make in the first instance would merely constitute the return of that part of the employees' wages to the funds which the em- ployees had designated for that purpose in the first instance. In a similar situation, in which an employer was disputing the authority of the Board to order pay- ment of like fringe benefits, the Supreme Court, in N.L.R.B. v. Strong Roofing & Insulating Co., 393 U.S. 357, 360 (1969), stated: The fact that the payments in question here did not constitute direct pay to the employees is ir- relevant in our view of this case. Whether the payments were made to the employees, who then contributed them to union trust funds in the form 34 The documents governing the benefits under Local 363's Funds are not in the record. Cf. supra, fn. 30 of higher union dues, or whether as here they passed straight from the employer to the trust funds, the final result is the same. And it is just as much in the interest of "effectuat[ing] the policies of this Act," and of making the employees whole, to require the payments in either case. In addition, Respondent will be required to make Local 363 whole for any dues lost as a result of Respon- dent's failure to honor the checkoff provisions of its con- tract with Local 363, and any renewal thereof, with in- terest thereon as prescribed in Florida Steel, supra. Ro- bertshaw Controls Co., 240 NLRB No. 188 (1979). Finally, Respondent will be required to post appropri- ate notices. The General Counsel and Local 363, neither of whom has favored me with a brief, indicated at the hearing that they wanted an order which would prohibit Local 3 from raising a question concerning representation for a period of time equal to the period during which Local 363 has been denied the right pursuant to the collective- bargaining agreement to represent Respondent's employ- ees. Because the contract which bound Respondent until at least June 30, 1979, may have been automatically re- newed, and because counsel have not troubled to render a rationale for what the General Counsel referred to as "extraordinary relief," I shall recommend only the ordi- nary relief of a requirement to bargain, on request. Cf. Nelson-Hershfield Electronics, 188 NLRB 26, 26-27, 50- 51 (1971); Glomac Plastics, Inc. v. N.L.R.B., 592 F.2d 94, 99-101 (2d Cir. 1979); N.L.R.B. v. Sanson Hosiery Mills, Inc., 195 F.2d 350 (5th Cir. 1952), cert. denied 344 U.S. 863 (1952); Ludlow Typograph Company, 108 NLRB 1463 (1954). Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 5 The Respondent, Argano Electric Corp., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing or contracting with Local 3, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Local 3), as the bargaining representative of any of its employees for purposes of collective bargaining, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive bargain- ing representative of such employees. (b) Giving effect to the collective-bargaining contract with Local 3 executed about March 1978, or to any ex- tension, renewal, or modification thereof; provided, how- ever, that nothing in this Order shall be construed as re- quiring Respondent to take any action unfavorable to any individual employee regarding wages, hours, and 35 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. ARGANO ELECTRIC CORP. 361 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other substantive terms and conditions of employment; provided further, that nothing in the first proviso shall limit the rights of Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 363), with respect to action which Re- spondent has taken unilaterally so far as Local 363 is concerned. (c) Discriminating in regard to hire or tenure of em- ployment or any term or condition of employment to en- courage membership in Local 3 or discourage member- ship in Local 363. (d) Failing and refusing to recognize and bargain col- lectively with Local 363 as the exclusive bargaining rep- resentative of a unit including the following employees: All electricians, electrical maintenance mechanics, help- ers and apprentices employed by Respondent, excluding all office clerical employees, guards and supervisors as defined in the Act. (e) Failing and refusing to implement and adhere lo any contract with Local 363 covering such employees. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Withdraw and withhold all recognition from Local 3 as the exclusive bargaining representative of its em- ployees for the purpose of collective bargaining, unless and until said labor organization shall have been certified by the Board as the exclusive representative of such em- ployees. (b) Implement and adhere to Respondent's 1976 con- tract with Local 363, and any renewal thereof. (c) Make its employees whole for any losses they may have suffered by reason of Respondent's failure to imple- ment and adhere to its 1976 contract with Local 363, and any renewal thereof, in the manner set forth in that por- tion of this Decision entitled "The Remedy." (d) Make the payments to the Local 363 Pension Fund E, the Local 363 Annuity Fund E, the Local 363 Wel- fare Fund E, and the Local 363 Joint Industry Fund E, which are required by Local 363's July 1976 contract with Respondent and any renewal thereof, in the manner set forth in that part of this Decision entitled "The Remedy." (e) Make Local 363 whole for any moneys that would have been due Local 363 under the terms of any check- off authorizations executed by Respondent's employees but which were not deducted and transmitted to the Union as a result of Respondent's failure to apply to such employees the July 1976 contract and any renewal there- of, in the manner set forth in that part of this Decision entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, copies of all reports made to trustees of the funds to which Respondent's contracts with Local 3 call for Respondent to contribute, and all other records necessary or useful to analysis of the sums due under the terms of this Order. (g) On request, bargain collectively with Local 363 as the exclusive representative of all of Respondent's elec- tricians, electrical maintenance mechanics, helpers and apprentices, excluding all office clerical employees, guards and supervisors as defined in the Act; and if an understanding is reached, embody such understanding in a signed agreement. (h) Post at its place of business in New York, New York, and at all of its jobsites, copies of the attached notice marked "Appendix." 36 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (i) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 36 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT recognize or contract with Local 3, International Brotherhood of Electrical Workers, AFL-CIO, as the collective-bargaining representa- tive of any of our employees, unles and until it has been certified by the Board as the exclusive bargain- ing representative of such employees. WE WILL NOT give effect to our March 1978 contract with Local 3 or to any extension, renewal, or modification of that contract; but we are not re- quired to take any action unfavorable to any indi- vidual employee regarding wages, hours, and other substantive terms and conditions of employment. WE WILL NOT discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage membership in Local 3 or discourage membership in Local 363. WE WILL NOT fail and refuse to recognize and bargain collectively with Local 363 as the exclusive bargaining representative of our electricians, electri- cal maintenance mechanics, helpers and apprentices, --------- - -- ARGANO ELECTRIC CORP. 363 excluding all office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT fail and refuse to implement and adhere to any contract with Local 363 covering such employees. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce you in the exercise of your rights under the Act. WE WILL NOT withdraw and withhold all recog- nition from Local 3 as the exclusive representative of our employees for the purpose of collective bar- gaining, unless and until Local 3 has been certified by the Board as the exclusive representative of such employees. WE WILL honor our 1976 contract with Local 363, and any renewal of that contract. WE WILL make the payments required by that contract, and any renewal of that contract, to Local 363 Pension Fund E, Local 363 Welfare Fund E, Local 363 Annuity Fund E, and Local 363 Joint In- dustry Fund E. WE WILL make you whole, with interest, for any losses you may have suffered by reason of our fail- ure to implement and adhere to our 1976 contract with Local 363, and any renewal thereof. WE WILL make Local 363 whole, with interest, for any moneys that would have been due it under the terms of any checkoff authorizations executed by our employees but which were not deducted and transmitted to the Union as a result of our failure to apply to these employees the terms of our 1976 con- tract with Local 363, and any renewal thereof. WE WILL, on request, bargain collectively with Local 363 as the exclusive representative of the em- ployees described above, and if an understanding is reached, embody such understanding in a signed agreement. ARGANO ELECTRIC CORP.