Electric Machinery Co.

ELECTRIC MACHINERY CO. Electric Machinery Company and International Broth- erhood of Electrical Workers, Local Union No. 915, AFL-CIO. Cases 12-CA-7972 and 12-CA-8037 June 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JNKINS AND PENFI.I.O On March 19, 1979, Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and Respondent filed cross-exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his rec- ommended Order, as modified herein. The General Counsel and Charging Party except to the Administrative Law Judge's finding that Respon- dent did not constructively discharge its unionized electricians by unilaterally altering their wages, fringe benefits, and other working conditions. We find merit to those exceptions. Respondent, pursuant to its delegation of bargain- ing authority to the National Electrical Contractors Association (NECA), was party to a collective-bar- gaining agreement due to expire on November 30, 1977,' between the Union and NECA. On June 30, Respondent revoked NECA's authority to bargain on its behalf and thereafter gave timely notice to the Union that it was terminating the existing NECA- negotiated collective-bargaining agreement as of its stated expiration date. In accordance with its concur- rent request for individual bargaining Respondent participated in two bargaining sessions with the Union on November 22 and 28. At the conclusion of the second meeting Respondent announced that it in- tended to take directly to the employees and to imple- ment its first and only contract offer made to the Union.2 As Respondent's president, Jaime Jurado, a Unless otherwise noted all dates are 1977. 2At the November 22 meeting Respondent indicated its willingness to modify its offer by guaranteeing some overtime work to electricians working for 5.50 per hour. However, the terms unilaterally implemented by Respon- dent did not include this modification. left the union hall following the second meeting, he told the union negotiators, Joseph Cain. the business manager, and John Erickson. an International repre- sentative, that if the Union contended that Respon- dent was bound by the NECA-negotiated agreement, he (Jurado) could create a new company and operate it as an open shop.' Thereafter, on or about November 28 and 29, Jura- do met with the employees then working at Respon- dent's Morris Bridge Water Plant, Hooker's Point, and Gannon Plant jobsites. 4 Jurado read a list of new terms and conditions of employment which he stated would be put in effect on December . The new terms and conditions announced by Jurado provided, inter alia, a wage scale of $5.50 to $10.20 per hour.' the exact rate to be determined by Respondent alone based on its assessment of the employee's skill and abilities: a company hospitalization plan rather than the union plan: no pension plan or "other similar fringe benefits as are presently provided under the contract with Local 915"; no vacation fund pay- ments; no paid 'showup" time: no "travel" time: a set rate apprentice scale: and a provision that when an employee worked over 50 miles from Tampa Re- spondent would "work out with him the proper man- ner for room and board." Upon completion of read- ing the new terms and conditions of employment Jurado told his employees, in effect, that they could work under the new terms and conditions or leave.? Two of the alleged discriminatees immediately in- formed Jurado that they could not accept the new terms and departed their jobsites, with the balance following suit on December 5. On December 30 Re- spondent signed a new letter of assent designating NECA as its bargaining agent and automatically making it party to the new NECA-Union collective- bargaining agreement. Immediately thereafter the majority of the alleged discriminatees returned to Re- spondent's employ. ' In agreeing with the Administrative L.aw Judge', finding hat this state- merit did not violate Sec 8(a I ) of the Act. we note that no employees were present at the time the statement was uttered, and there s no evidence that any employee was aware that it was made 4 The record does not indicate whether Respondent had employees, work- ing at an) other johsites 'The 1976 77 collective-bargaining agreement provided a wage rate oft S10.20 per hour However, the nion had agreed with NlE('A that menmber employers could reduce the wage rate for certain work to $7 per hour I Employee James Canella. employed at Respondent's Gannon Plant job- site, testified that Jurado handed the employees a copy of the new terms and conditions and then told them that f they wanted to work after December I under those conditions they could. and if they did not want to they could leave. Employee Victor Moore. working at the Morris Bridge water Plant jobsite, similarly testified hat Jurado told the employees at that jobsite that "these would he the new conditions we'd work under if we worked fir him." and to tell the shop superintendent if the conditions were not accept- able Jurado's testimony, as well as that of the other employee witnesses, w"as in substantial accord. 243 NLRB No. 47 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the foregoing, the Administrative Law Judge found that Respondent violated Section 8(a)(5) and (I) by unilaterally altering existing terms and conditions of employment before impasse was reached and by engaging in individual bargaining with its employees in derogation of the Union's status as exclusive bargaining representative. However, the Administrative Law Judge further found that the al- leged discriminatees were not constructively dis- charged in violation of Section 8(a)(3) and (1), appar- ently because their membership or standing in the Union would not have been in peril had they re- mained on their jobs under the new conditions of em- ployment. In distinguishing Superior Sprinkler. Inc.. 227 NLRB 204 (1976); Dust-Tex Service. Inc., 214 NLRB 398 (1974): Barwise Sheet Metal Co., In(.. 199 NLRB 372 (1972); and Johnson Electric Company. Inc.. et al., 196 NLRB 637 (1972), the Administrative Law Judge stated that in each of those cases the em- ployers' unilateral action required the employees to abandon or lose their union membership, a situation unlike that presented in the instant case. We do not agree that such a situation is a prerequisite to our finding that employees have been constructively dis- charged. or that the cases cited by the Administrative Law Judge stand for that proposition. While it is true that the employer action in Johnson Electric and Bar- wise Sheet Metal required the employees to abandon or lose their union membership, neither of those cases considered that fact as a sine qua non of a constructive discharge finding. In Dust-Tex Service we expressly found that imposing unilaterally established terms of employment at a time when the employer was obli- gated to retain the existing conditions is "no less un- lawful than conditioning employment upon abandon- ment of the Union." 7 Moreover, in Superior Sprinkler the Administrative Law Judge specifically found that "Superior was unconcerned as to whether or not its sprinkler fitters continued their membership in the Union,"8 and that there was no evidence that the em- ployees would have been subject to union discipline had they continued working for Superior under the new, unilaterally imposed terms and conditions of employment. We find that the holdings in Superior Sprinkler and Dust-Tex Service are dispositive of the issues pre- sented in this proceeding. As stated in Superior Sprin- kler, supra at 210: [The employer] unlawfully refused to bargain with the Union and thus ... offered its employ- ees the choice of accepting the employer's unlaw- ful repudiation of its statutory bargaining obliga- tions and working under unlawfully imposed 7 Dut-Tex Service. Inc. supra at 406. 'Superior Sprinkler, Inc.. supra at 210. conditions of employment or quitting their em- ployment. Thus, the employees' continued em- ployment would be conditioned upon their aban- donment of rights guaranteed them under the Act, that is, the right to bargain collectively through representatives of their own choosing. Forcing employees to make such a choice; namely, to work under illegally imposed condi- tions or to quit their employment "discourages union membership almost as effectively as actual discharge." Accordingly, I ... find that the Com- pany constructively discharged . . . and thereby violated Section 8(a)( I) and (3) of the Act.' In accordance with the foregoing, we find that em- ployees Manuel Fernandez, Jr., Victor Moore, Den- nis Field. John Rivera, Richard Moon, Donald Shaf- fer, Jr., Relious Sims, Tony Scaglione, James Cannella, Frederick Bosserman. George Holmes, Warren Schrecengost, Joseph Dempsey III, Jesus Al- varez, Anthony Diaz, Rene Rego, Robert Whitley, and Kendal Stallings were, as alleged in the com- plaint, constructively discharged by Respondent in violation of Section 8(a)(3) and (1) of the Act. Having found that Respondent violated Section 8(a)(3) and ( I ) of the Act by constructively discharg- ing the above-named employees, we shall order Re- spondent to offer them immediate and full reinstate- ment to their former jobs or, if such jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privi- leges previously enjoyed and make them whole for any loss of earnings they may have suffered by pay- ment to them of sums equal to the amount they nor- mally would have earned as wages from the dates of the discriminatory discharges to the date-f Respon- dent's offer of reinstatement, less interim net earnings. Backpay shall be computed in accordance with the formula set forth in F. 1W'. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977).0 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Electric Machinery Company, Tampa, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 9 Id., quoting Blue Cab Company and Village Cab (Compan. 156 NLRB 489. 491 (1965). ' See, generall, Isis Plumbing & Heating Co. 138 NLRB 716 (1962). The record reveals that a majority of the discriminatees returned to work after December 30 when Respondent executed a new letter of assent. As the iden- tity of these individuals is not known, we leave to the compliance stage of this proceeding the determination of the amounts owed each discriminatee. 240 EI.E(C'RIC MACHINERY CO. 1. Insert the following as paragraph l(a) and re- letter the subsequent paragraphs accordingly: "(a) Discouraging membership in International Brotherhood of Electrical Workers. Local Union No. 915, AFL-CIO, or any other labor organization, by constructively discharging its employees through the imposition of illegal conditions of employment, or hb otherwise discriminating against any of its employees in regard to hire, tenure of employment, or other terms or conditions of their employment." 2. Insert the following as paragraph 2(a) and re- letter the subsequent paragraph accordingly: "(a) Offer Manuel Fernandez, Jr., Victor Moore, Dennis Field. John Rivera, Richard Moon, Donald Shaffer, Jr., Relious Sims. Tony Scaglione, James Cannella, Frederick Bosserman, George Holmes, Warren Schrecengost, Joseph Dempsey ill. Jesus Al- varez, Anthony Diaz. Rene Rego. Robert Whitlev. and Kendle Stallings immediate and full reinstate- ment to their former jobs or, in the event those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suf- fered, with interest, by reason of the unlawful dis- crimination against them in the manner set forth in the Board's Decision." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPIOYEES POSrED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize collectively To form, join, or support unions To bargain in a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity. WE WILL. NOT discourage membership in Inter- national Brotherhood of Electrical Workers, Lo- cal Union No. 915, AFL-CIO, or any other la- bor organization, by constructively discharging employees through the imposition of illegal con- ditions of employment, or by otherwise discrimi- nating against any of our employees. WE WILL. NOI unilaterally announce and thereafter change existing wages, fringe benefits, and other conditions of employment of bargain- ing unit employees during negotiations before impasse is reached. WE WiL.L. Nor bargain individually with em- ployees to cause them to accept reductions in wages, fringe benefits. or other conditions of em- ployment which have not been agreed to by the Union. WtE wi. Not in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights under the Act. WE l WIl. ofler to reinstate Manuel Fernandez. Jr., Victor Moore, Dennis Field, John Rivera. Richard Moon. Donald Shaffer, Jr.. Relious Sims. Tony Scaglione. James Cannella, Freder- ick Bosserman. George Holmes, Warren Schren- cengost. Joseph Dempsey III, Jesus Alvarez. An- thony Diaz, Rene Rego. Robert Whitley, and Kendle Stallings to their former jobs. or. if those jobs no longer exist. to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. and wE wuii. make them whole for any loss of pay suffered as a result of being discriminatoril discharged, with interest. EI.E('IRI( MACHINERY COMPANY DECISION SIAIEMI-NI (01F lI1 CASI: DONALD R. HOLLIEY. Administrative Law Judge: Upon charges filed in Cases 12 ('A 7972 and 12 CA 8037 by International Brotherhot)d of Electrical Workers, Local Union No. 915. AFL CIO (herein called the Union). the Regional Director for Region 12 issued, on March 2. 1978. an Order consolidating cases, amended complaint. and no- tice of hearing alleging that Electric Machinery Company (herein called Respondent) engaged in conduct violative of Section 8(a)( I). (3), and (5) of the National Labor Relations Act, as amended (herein called the Act), during the months of November and December 1977. Respondent filed a timely answer to the amended complaint denying it had violated the Act as alleged. The case was heard in Tampa. Florida, on June 8. 1978. All parties appeared and were afforded full opportunity to participate and to introduce and meet material evidence. Counsel for the General Counsel and Respondent filed post-hearing briefs which have been carefully considered. Upon the entire record, the briefs, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACI I. JURISI)I(I iO)N The amended complaint alleges, the answer admits, and I find, that Respondent. a Florida corporation. maintains an 241 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and place of business in Tampa. Florida. where it is engaged in the construction industry as an electrical con- tractor. During the 12-month period preceding issuance of' the amended complaint Respondent purchased and re- ceived at its various construction jobsites located through- out the State of Florida goods and materials valued in ex- cess of $50,000 which were shipped to said jobsites from points located outside the State of Florida. Upon these ad- mitted facts, I find that Respondent is. and has been at all times material, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. HtE IABO)R ORG;ANIZAII()N It was admitted and I find that the Union is a labor organization within the meaning of the Act. III. THE AI.LIEGED UNFAIR LABOR PRA(II('ES A. Contentions of the Parties Stated generally, the General Counsel contends in this case that Respondent engaged in multiple violations of the Act after lawfully withdrawing from an employer associ- ation by unilaterally changing its employees wages, hours, and working conditions before impasse was reached in indi- vidual bargaining with the Union. Respondent's basic defense is that the Union never actu- ally engaged in individual bargaining although it was le- gally obligated to do so, and that Respondent's alterations of the wages, hours, and working conditions of employees was lawful as legal impasse had been reached when it effec- tuated proposed changes after contract expiration. B. Facts' For a number of years prior to 1977 Respondent was represented in bargaining with the Union by National Elec- trical Contractors Association (herein called NECA), to whom it had given authority to bargain in its behalf. On June 30, 1977, Respondent revoked NECA's authority to bargain on its behalf, and on August 30 it gave the Union timely notice that it was terminating the subsisting NECA- Union contract which was to expire November 30, 1977. The Union reacted to the above-described Respondent actions by informing Respondent and NECA that it con- cluded that neither the revocation of bargaining authority nor the attempted contract termination was properly ac- complished. The Union indicated that it expected Respon- dent to comply with the subsisting agreement even after it had expired.2 Between August 30 and November 17 the Union engaged in negotiations with NECA. and in early November the parties reached agreement on the terms for a new contract to replace the existing agreement which was to expire on I All dales are 1977 unless otherwise indicated. 2 See G.C. Exh. 2. Art. . sec. 2(c) provides: "The existing provisions of the agreement shall remain in full force and effect until a conclusion is reached in the matter of proposed changes." November 30.? The contract contained a "most favored na- tions" clause which provides: The Union agrees that if during the life of this agree- ment it grants to any other Employer in the Electrical Contracting Industry. any better terms or conditions than those set forth in this agreement, such better terms or conditions shall be made available to the Em- ployer under this agreement and the Union shall im- mediately notify the Employer of' any such conces- sions. During his testimony, the Union's business manager. Joseph Cain, indicated that the above-quoted clause had not presented a problem during the I I years the Union has dealt with NECA because the Union has not executed any individual contracts with electrical contractors during that period. Jaime Jurado. Respondent's president, testified that he had numerous conversations with Business Manager Cain concerning the poor competitive position of union electrical contractors in the Tampa, Florida, area during the summer and fall of 1977. The record reveals that the Union had recognized the problem by agreeing with NEC'A that its employer members could reduce the wage scale for journey- men electricians performing certain work from $10.20 to $7.00 (plus fringes) per hour until January 31. 1978. As of November 17 the Union had taken no action to commence individual bargaining with Respondent despite the fact that Respondent's attorneys had invited such bar- gaining by letter to the Union dated September 16. Conse- quently. on November 17, Respondent sent to the Union a letter (G.C. Exh. 3). which states: Dear Mr. Cain: On September 16, 1977, we had our attorneys write you with respect to the notice of termination previ- ously sent to you. In that letter, we offered to discuss our position with you. You have not notified us as to whether or not your union desires to bargain with us individually with respect to the wages, hours and working conditions of our employees. We wish to make the following offer to you with re- spect to a contract that we would be willing to enter into. We would be willing to enter into a contract that contained the following basic terms and conditions: I. A wage scale of $5.50 to $10.20 per hour. The wages to be paid to employees will be determined by the Company on an individual basis based on the com- pany's assessment of the individual's skills and abili- ties. 2. The company will provide a company paid for hospitalization plan. 3. There will be no pension or other similar fringe benefits as are presently provided under the contract with Local 915. 4. There will be no vacation fund payment, how- ever, employees will receive one week's paid vacation 3The only monetary change was a 10-cent and/or I'2-percent increase in the health and welfare contributions required by the contract. 242 ELECTRIC MACHINERY CO after I year's work and two week's paid vacation after 2 year's work. 5. As in the past, there will be no paid holidays. 6. There will be no paid showup time. 7. There will be no travel time. 8. When an employee is working over 50 miles from Tampa, the company will work out with him the proper manner for room and board. 9. A set rate apprentice scale which, at fixed rates. will be established. Please advise if these terms and conditions are accept- able to you. If they are not, please contact us immedi- ately to discuss them further. We do wish to advise that the NECA agreement. as it is presently consti- tuted, is not acceptable to us. In the event that we have not heard from you or in the event that your union does not make a meaningful of- fer on or before November 30, 1977. it is our intent to put these wages and working conditions into effect on December I, 1977. Very truly yours, ELECTRIC MACHINERY COMPANY Upon receipt of Respondent's proposals the Union scheduled a meeting at the union hall for November 22. Attending the meeting were Jurado for Respondent and Cain and John Erickson (International representative) for the Union. At the meeting Jurado revised his wage proposal by indicating that he would guarantee some overtime work to electricians working for $5.50 per hour. The Union merely indicated that it would take Respondent's proposals, other than the hospitalization proposal, under consider- ation. The Union rejected Respondent's hospitalization proposal and counterproposed the existing contractual plan. Cain testified that he indicated to Jurado during the meeting that he felt Jurado could cost out his wage pro- posal and discover that it was almost equal to the existing $7.00 per hour agreement that NECA and Union had pre- viously agreed upon and were using. At the conclusion of the meeting Erickson accepted Jurado's invitation to visit Respondent's office where he could discuss competitive bid- ding with Respondent's estimator. Erickson went directly to Respondent's facility following the meeting, and after dis- cussing the situation with the estimator he commented to Jurado that he agreed some changes were necessary to per- mit Respondent to become more competitive. Jurado testified that he understood from discussion on November 22 that he was to prepare some written docu- ment which would indicate that Respondent agreed to be bound by the expiring NECA-Union agreement during ne- gotiations. Consequently, he had his attorneys prepare a document entitled "Memorandum of Agreement" before the next bargaining session scheduled for November 28. The document, which is in the record as General Counsel Exhibit 4, states: THIS MEMORANDUM OF AGREEMENT is en- tered into this --- day of November, 1977, by and between The International Brotherhood of Electrical Workers (herein "International"). I.ocal Union 915, International Brotherhood of Electrical Workers (herein "Local") and Electric Machinery Co. (herein "Company"). 1. The parties acknowledge that the agreement be- tween the Local Union and the Florida West Coast Chapter N.E.C.A. is of no force or effect with regard to the Company and that as of November 30, 1977. the Company is no longer hound by that agreement. 2. The Company. of its own volition and without any requirement that it do so, will continue to pay wages and provide terms and conditions of employ- ment identical to those provided b the contract for a period of thirty (30) days from November 30. 1977. 3. The Company takes this action for the purpose of attempting to reach a new agreement with the Local and the International. The parties agree that such ac- tion does not constitute an extension of the expired agreement referred to in Paragraph One of this Memo- randum nor does this action itself constitute a new contract between the parties. The Company's actions do not obligate it or the Union to enter into a new agreement. 4. Both the International and the Local acknowl- edge and agree that the action of the Company is taken in an effort to secure concessions from the Union which will allow the Company to become competitive, on a state wide basis, with companies who employ nonunion labor. The Company is willing to continue providing union wages and terms and conditions of employment only because the Local and International Unions have stated a willingness to help the Company become competitive on a state wide basis. The foregoing constitute the entire understanding of the parties and there are no other valid or binding agreements besides those contained herein. At some unstated time shortly after the November 22 negotiation session the Union met with Respondent's em- ployees to discuss negotiations. At the meeting Cain read Respondent's proposals to the employees. The members were informed that they should remain on the job during negotiations, and Cain indicated that even though that might involve working without a contract he felt that the NECA-Union contract was still binding upon Respondent, and the members would not be fined or subjected to union discipline for remaining on the job. On November 28 Jurado appeared at the union hall with the above-described document which he handed to Cain at the outset of the meeting. Cain read the document and stated he would not sign it. Jurado became angry when Cain refused to sign his document and threatened to walk out. From a composite of the testimonies of the three wit- nesses who described the meeting (Jurado, Cain, and Erick- son), it appears that Cain informed Jurado he would not sign the document because he felt that Respondent was contractually obligated to abide by the expiring contract while negotiations continued. It further appears that Jurado responded by stating something to the effect that if the 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union contended his Company was bound by the NECA- Union contract, he would create a new company and oper- ate open shop. During the approximately 30-minute dura- tion of the meeting Jurado attempted to induce Cain to sign the memorandum of' understanding by indicating that he would be willing to agree for 6 months at 30-day intervals to abide by the terms of the expiring contract while negotia- tions continued if he was convinced that the Union was attempting in good faith to reach agreement on terms which would make Respondent more competitive. The meeting ended with Jurado informing Cain and Erickson that he was going to take his proposals to the men and attempt to persuade them to work under such conditions. As Jurado left the meeting Erickson asked him to leave the memoran- dum of agreement, stating that they would consider it fur- ther. The General Counsel called five employee witnesses to show what occurred between November 28 and December 5. Victor Moore testified that in late November on a Mon- day or Tuesday [November 28 or 29], Jurado met with the employees working at the Morris Bridge Water Plant job- site and brought out a list of new working conditions which they had all previously seen. He read the list and asked the employees to tell Lawrence, the shop superintendent, by the next day if they could not accept the conditions. Moore identified the employees working on the jobsite at that time as Manual Fernandez, Dennis Field, Frank Leto, an ap- prentice named Ricky, and himself. He indicated that he and Field told Jurado that they could not accept the new conditions, and that they intended to quit that day.' Moore indicated during his testimony that another employee on the jobsite left at a later time, but he failed to indicate whether it was Fernandez, Leto, or the apprentice Ricky. Robert Whitley, an electrician who had worked for Re- spondent since 1969, testified on direct examination that he was in Jurado's office in October 1977, and that Jurado then "expressed his feelings about what he was going to do was go open shop."5 Whitley testified that Jurado came to a jobsite where he was working alone 2 or 3 days before the contract expired, showed him a letter indicating that the terms described therein would be in effect after November 30, and told him that he should let the superintendent know what he was going to do.6 Whitley chose to continue work- ing until Monday, December 5. While he had been in- structed by the Union to remain on the job, he testified that he decided to leave on Monday morning because he did not feel it was right to work under the new terms and condi- tions. Kendal Stallings, 7 who was working at Respondent's Hooker's Point jobsite in late November, testified that Jura- do visited that job in late November and told the employees 4 Moore testified that he worked until quitting time on the day in question. 5On cross-examination Whitley testified that during the office discussion Jurado told him that he was having trouble negotiating the contract with Local 915, and there was a chance he might not be able to work out a contract with them. He indicated that he gathered from the discussion that Jurado might be going open shop. 6While Whitley erroneously testified that the letter indicated a pay scale of $10.25 to $5.80, it is clear, and I find, he was shown G.C. Exh. 3. 7 Incorrectly spelled Kendle Stallings in the amended complaint. what they would be paid after November 30. Stallings testi- fied that in addition to himself, Dempsey, Alvarez, Rego, and Diaz were working on the Hooker's Point jobsite when Jurado visited it. He indicated that they all worked at the site until Monday, December 5, when they left the jobsite at the same time. Stallings testified that he decided to leave the job because his understanding was that the terms of the contract were supposed to stay in effect until an agreement was made "between the Union and the contractors" and he did not want to work taking a wage cut, mainly in fringe benefits. Joseph E. Dempsey Ill, an electrician who was also working on the Hooker's Point jobsite in late November, clarified Stalling's testimony by indicating that Jurado let them know what the new terms would be after November 30 by handing them a letter and explaining it would take effect December I. Dempsey indicated that he left the job on Monday. December 5, because he did not want to take a cut in pay or benefits.8 The General Cousel's last employee witness was James Cannella. This employee indicated that he was working at Respondent's Gannon Plant with around 10 other employ- ees in late November when Jurado came to the job and gave each a letter indicating "if we wanted to work after the first with this information that we could. If we didn't, we could leave." Asked to identify the employees on the job when Jurado spoke to them, Cannella recalled that in addi- tion to himself, Tony Scaglione,5 Johnny Riveria.'0 Richard Moon, George Holmes, Fred Bosserman, Dale Stricken- gosh," and Don Schaeffer' 2 were on the job. Cannello testi- fied that he continued to work for Respondent until Mon- day, December 5, at which time he left the job without notifying anyone from the Company he was leaving be- cause he did not know what his pay or working conditions were going to be. 3 On December 30 Respondent signed a new letter of as- sent designating NECA as its bargaining agent. Such action automatically made it a party to the new NECA-Union collective-bargaining agreement. Immediately thereafter. most if not all of the alleged discriminatees named in the amended complaint were hired and/or reinstated. C. Issues Summarized, the amended complaint alleges that Re- spondent violated Section 8(aX)(1), (3), and (5) of the Act by: 1. Threatening to perform bargaining unit work with a nonunion company on November 28. ' Dempsey indicated that the employees discussed the situation with their union steward on December 5 but claimed that the steward, who left the job with them, did not tell them to leave the job. 9 Correctly spelled Scaglione in the amended complaint. 10 Correctly spelled Rivera in the amended complaint. 11The amended complaint names one Warren Schrecengost as an alleged discriminatee, but the name Dale Strickengosh does not appear therein (p. 6, pars. 12 and 13). u Correctly spelled Donald Shaffer, Jr., in the amended complaint. m Without naming the employees, Cannella testified that other employees also left the Hooker's Point job on Monday, December 5. In its brief. Re- spondent admits that 10 employees working at Gannon Station on Decem- ber 5 left the job within 30 minutes after they reported. 244 ELECTRIC MACHINERY CO. 2. Bargaining directly with employees concerning their wages, hours, and working conditions during the last week of November. 3. Informing employees on November 29 and 30 that it was going to place its last offer to the Union in effect and informing them they could turn in their time if they did not agree with such conditions of employment. 4. Unilaterally changing the wages, hours, and working conditions of employees on December I by terminating payment into the Union's pension fund, vacation fund, and health and welfare fund and discontinuing payment of showup and travel time. 5. Constructively discharging the employees named in paragraphs 10 and 12 of the amended complaint during the period November 30 to December 5, 1977. IV. ANALYSIS AND CONCIUSIONS A. The Alleged 8(a)(5) Violations I. The appropriate unit and majority status Paragraph 5 of the amended complaint was amended at the hearing to allege: All journeymen and apprentices, and electrical wire- men employed by Respondent on jobsites located in the Counties of Hillsborough, Polk, Hardee and High- land, Florida, pursuant to the agreement described in paragraph 7(c) of the [amended] complaint, excluding all other employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. Respondent admits and I find that the bargaining unit de- scribed above constitutes a unit appropriate for bargaining within the meaning of Section 9(b) of the Act. The parties stipulated that Respondent's employees who were performing work within the above-described unit dur- ing November 1977, had worked for Respondent for more than I year, and that each of them was a member of the Union. It is thus not disputed and I find that the Union represented a majority of employees in the unit found to be appropriate at all times material in this case. 2. The unilateral changes Respondent attempts to justify the unilateral alteration of its employees' wages, fringe benefits, and other condi- tions of employment by claiming that a condition tanta- mount to an impasse existed throughout the last 6 months of 1977. Its basic contention is that I should find that the Union was never prepared to negotiate with it in good faith because the Union steadfastly stated that it had never effec- tively withdrawn NECA's authority to bargain for it. Its subsidiary arguments are: 1. The fact that the Union had bargained and signed agreements only with NECA for I I years supports an inference that the Union did not intend to negotiate with it. 2. The presence of the "most favored nations" clause in the NECA contract(s) supports an infer- ence that the Union bargained from a fixed position. 3. As Cain failed to deny that the parties agreed on November 22 to extend the contract for 30-day periods so long as Jurado felt that the Union was earnestly attempting to help solve Respondent's competitive problems. I should find that such procedure was agreed upon at the first bargaining session. While Respondent's arguments are somewhat persuasive. I nevertheless am compelled to conclude that it violated Sec- tion 8(at) 1 ) and (5) of the Act as alleged when it announced and subsequently placed into effect the changes in its em- ployees' wages, fringe benefits, and working conditions de- scribed in Jurado's November 17 letter to the Union. While it is true that Cain contended from September I through at least December 12. 1977." that Respondent had not properly revoked NECA's authority to bargain for it, the record nevertheless reveals that Cain responded to Jurado's November 17 request for individual negotiations by meeting with him on November 22 and 28. Significantly. although the Union and NECA had concluded their new 1977 78 contract before the parties herein met, the Union did not take the position on November 22 or 28 that indi- vidual negotiations were unnecessary because a new con- tract with NECA had already been concluded. In this vein, I note that the Union's position at the November 28 session was that Respondent was obligated to abide by the expiring contract's terms in the event that the parties failed to reach agreement before that contract expired." In sum, I con- clude that I cannot attach that degree of significance re- quested by Respondent to the Union's assertion that Re- spondent did not properly withdraw NECA's authority to bargain in its behalf. At best, the Union negotiated under protest. I find it was legally entitled to lodge the protest so long as it bargained in gxod faith with Respondent. Respondent's remaining arguments are not particularly persuasive. Thus, while the record does reveal that the Union has contracted only with NECA for I I years, it fails to reveal that any electrical contractor who was not a mem- ber of NEC'A requested individual bargaining during that period. Consequently. the Union's failure to enter agree- ments with nonassociation members for I I years proves nothing. With regard to the presence of language in the NECA contract which indicates that the Union is obligated to pass on to NECA members any more favorable contract terms which may be extended to others. Cain testified that he was seeking during negotiations -ith Respondent more favorable terms which could be placed in a contract and be submitted to the International for approval. I do not doubt the sincerity of his testimony. Finally. I do not agree with Respondent's contention that Cain, in effect, agreed on No- vember 22 to the conditions set forth in the memorandum of agreement which Jurado presented to the Union at the outset of the November 28 meeting. While there may have been some general discussion at the November 22 meeting concerning the conditions under which negotiations would be conducted, I find that there was no concrete agreement on anything during that meeting. '4 See Resp. Exhs. 1, 2. 4. and 5 I' This psitlon was valid See (arrrigh! Hard'are (. 229 NLRB 781. 782. fn 12 (1977) 245 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD In suni, for the reasons set lorth I find that no bargaining impasse existed on November 28 when Respondent an- nounced to it., employees that it intended to place the changes described in General Counsel Exhibit 3 in effect on December I. 1977. It follows and I find that Respondent violated Section 8(a)(I) and (5} as alleged by announcing and placing in effect the unilateral changes described in General Counsel Exhibit 3. 1 find, in addition, that by urg- ing its employees to work under such conditions that Re- spondent engaged in individual bargaining with its employ- ees in violation of Section 8(a)( 1) and (5) of the Act. See ('ar.t'right tlardware Co., 229 NLRB at 783. 3. The alleged threat to go nonunion There remains for discussion the General Counsel's con- tention that Respondent violated Section 8(a)(1) and (5) by threatening on November 28 to perform unit work with a nonunion company. The General Counsel sought to prove the allegation through Cain's testimony which was to the effect that he resisted signing Respondent's memorandum of agreement at the November 28 meeting by stating that he felt Jurado had an agreement, and that he should con- tinue with it. According to Cain, Jurado replied that even if it were proven that he was bound by the NECA-Union agreement, he could open another company and go non- union. It is clear and I find that by making the remark attributed to him, Jurado was not threatening to immedi- ately create a nonunion company to perform work then being performed by unit employees. Moreover, I note that unionized employers can, if they follow appropriate proce- dures, create so-called "double-breasted" operations law- fully. I find that the General Counsel has failed to prove the allegation and recommend that it be dismissed. B. The Alleged 8(a)(l) and (3) Violations The General Counsel contends that Respondent con- structively discharged all its union electricians by unilater- ally altering their wages, fringe benefits, and other working conditions as discussed above. Respondent's contention, as revealed by its answer to the amended complaint and its brief, is that the employees named in the amended com- plaint quit or went on strike. At the outset, I observe that the General Counsel's the- ory was that the alleged constructive discharge of the em- ployees named in paragraphs 10 and 12 of the amended complaint violated Section 8(a)(3) and (1) of the Act. Para- graph 14 of the amended complaint states: By the acts described above in paragraphs 10, 11, 12 and 13 above, and by each of said acts, Respondent did discriminate in regard to hire and tenure or condi- tions of employment of its employees, thereby discour- aging membership in a labor organization, and Re- spondent did thereby engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. In his brief! the General Counsel cites Royal Crown Bottling Co., 188 NL.RB 352 (1971). and Hoerner Waldorf'Corp. 227 NILRB 612 (1977). in support of the principle that "[tJhe Board has long held that conditioning employment on relinguishing a right protected by the Act is a constructive discharge." Inspection of the Royal Crown and Hoerner cases reveals that they are cases involving discharges which were found to independently violate Section 8(a)( ) of the Act. The complaint in this case alleges no such violation, and the General Counsel first advances such a theory in his brief. I find that it would be inappropriate for me to con- sider a General Counsel contention that by discharging the employees named in the complaint Respondent indepen- dently violated Section 8(a)(I) of the Act.'" Turning to the issue litigated in this proceeding, Section 8(a)(3) of' the Act provides that it shall be an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." As I view the facts in the instant case, the General Coun- sel has failed to show that Respondent altered the wages. fringe benefits, and other conditions of employment of its employees "to encourage or discourage [their] membership in any labor organization." A brief' review of the pertinent record facts reveals the basis for my conclusion. The Gen- eral Counsel's employee witnesses uniformly supported the testimony given by Cain regarding the meeting be held at the union hall with Respondent's employees at some unspe- cified time between November 22 and 28. That testimony was to the effect that Cain read Jurado's November 17 let- ter to the members, indicated that no agreement had been reached, informed the members that they should remain on the job when the contract expired, and informed the mem- bers that they would not be fined or disciplined because they) continued to work. Subsequent to the described meet- ing Respondent announced that it was going to put the changes listed in the letter in question into effect on Decem- ber I. Employee Moore who decided to quit on November 29 rather than work under the new conditions, testified that his decision to quit was personal and had nothing to do with the Union. Similarly, employee Whitley. who left the job on Monday, December 5, testified that he had been told by the Union to stay on the job but decided to leave be- cause of his personal convictions. Likewise, employees Stal- lings and Dempsey, who also left their jobs on Monday, December 5, indicated that their decisions were personal and had nothing to do with the Union. Finally, the last employee witness to testify, James Cannella, indicated that he personally decided to leave the job on December 5 be- 6 See Glasgow Industries, Inc., 210 NLRB 121 (1974), and Chandler Mo- tors, Inc., 236 NLRB 1565 (1978), which are partially in point. Although the legality of the termination of the alleged discriminatees was the only real issue in this case (remaining issues being moot as a new contractual relation- ship exists), this conduct was not alleged to constitute independent violation of Sec. 8(aXI) in the complaint or amended complaint. Respondent could and probably would have conducted its defense differently if independent violation of Sec. 8(aXI) had been alleged. In the circumstances, the 8(aXl) issue was not fully litigated. 246 ELECTRIC MACHINERY CO. cause he did not know what his pay or conditions were going to be. Patently, the facts summarized above reveal that Respon- dent's employees were aware, from the date of the Union's meeting with them. that they could continue to work for Respondent after November 30 without being fined or dis- ciplined by the Union. Indeed, Cain and the employees in- dicated that the Union had instructed them to stay on the job. Consequently. when they left the job on November 29 (Moore and Field) and on December 5 (the remainder), respectively, they did not take such action because their membership or standing in the Union was in peril. Instead, they admittedly left simply because they did not want to work for the remuneration Respondent offered. In the cir- cumstances described, I find that Respondent did not, by reducing the wages and benefits of its employees and re- questing that they work under such reducted circumstances. encourage or discourage their membership in the Union within the meaning of Section 8(a)(3) of the Act. ' Accord- ingly, I recommend that paragraphs 10 through 15 of the amended complaint be dismissed. V. THE FFE('I OF tiei UNFAIR L.ABOR PRA( I('ES UPON COMM ER('E The activities of Respondent set forth in section II1, above, occurring in connection with the operations of Re- spondent described in section 1. above, have a close, inti- mate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. 'Ile REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l ) and (5) of the Act. I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. CON('. USIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is 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 the Act. 3. The bargaining unit described below constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All journeymen and apprentices. and electrical wire- men employed by Respondent on jobsites located in ? In support of his contention that the facts in this case reveal that Re- spondent violated Sec. 8(aX3) of the Act by constructively discharging the employees named in the amended complaint. the General Counsel cites Johnson Electric Compaun. Inc., and William A Johnson and Albert M Thompson d/ba Johnson Electric 'ornpani, 196 NLRB 637, enfd. 472 F.2d 161 (6th Cir 1973): Barwise Sheet Metal (o, Inc., etar l. 199 NLRB 372 (1972): Du.rt-Ter Serice, Inc., 214 NLRB 398 (1974;: and Superiopr Sprin- kler, Inc., 227 NLRB 204 (1976). The cited cases are distinguishable, as it was concluded in each o them that the nilateral emplo)er action required the employees to abandon and/or lose their membership in their union. the Counties of Hillsborough. Polk, Hardee and High- land, Florida. pursuant to the agreement described in paragraph 7(c) of the amended] complaint, excluding all other employees, guards and supervisors as defined in the Act. 4. At all material times herein the UInion represented a majority of employees in the appropriate unit and has been the exclusive representative of said employees for the pur- pose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally announcing and thereafter changing the existing wages. fringe benefits, and other conditions of unit employees during negotiations and before impasse was reached, Respondent violated Section 8(a)( I) and (5 of the Act. 6. By attempting, on November 28 and 29. 1977. to colln- vince its employees that they should accept reductions wages, fringe benefits. and other conditions of employ ment which had not been agreed to b the U.'nion, Respondent engaged in individual bargaining with its eplosces iTn derogation of the Union's status and thereb. iolated Sec- tion 8(a)( I) and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labhor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except as specifically found herein above. Respondent has not violated the Act. Upon the foregoing findings of fact. conclusions of law., the entire record in this proceeding. and pursuant to the provisions of Section 10(c) of the Act. I herebN issue the following recommended: ORDFR)t The Respondent. Electric MachinerN Compan. Tampa, Florida. its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Unilaterally announcing and changing the existing wages, fringe benefits, and other conditions of employment of unit employees during negotiations before impasse is reached. (b) Bargaining individually with employees to caise them to accept reductions in wages, fringe benefits, or other conditions of employment which have not been agreed to by the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights under the Act. 2. Take the following affirmative action: (a) Post at its Tampa. Florida, facility copies of the at- tached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 12. 18 In the event no exceptions are filed as provided by Sec. 102.46 the Rules and Regulations of the National Labsir Relations Board. the iltdings conclusions, and recommended Order herein shall. as provided in Sec 112 4S of the Rules and Regulations. be adopted b the Board and become t, findings, conclusions. and Order, and ll objections thereto shall be deemrled waived fr all purposes. ,9 In the event that this Order is enforced bs a Judgmenl of a :illcd States court ol appeals. the words in the notice reading "Posted hb Order r the National I.abor Relations Board" shall read "Posted Pursuant to a Jli, ment of the I:nited States ('ourl it. Appeals E nforcing in Order o1 the N., Atinal abor Relations Board " 247 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after being duly signed by Respondent. shall he posted by it insure that said notices are not altered. defaced. or covered immediately upon receipt thereof, and be maintained for 60 bh any other material. consecutive days thereafter, in conspicuous places, includ- (b) Notify the Regional Director for Region 12, in writ- ing all places where notices to employees are customarily ing, within 20 days from the date of this Order, what steps posted. Reasonable steps shall be taken by Respondent to have been taken to comply herewith.