J-H Electric

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K. Jacobson & R. Haberman d/b/a J- H Electric and International Brotherhood of Electrical Workers, Local Union No. 68, AFL-CIO. Case 27-CA-2562 September 29, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On February 18, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Therafter, the General Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the Respondent filed cross-exceptions to the Trial Examiner's Decision and a supporting and answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connections with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with the following. The record shows that prior to 1965, the charging local represented employees working in the electrical contracting industry in some 21 counties in the northeast section of Colorado. This geographical area contained the counties of Weld and Larimer, which, until 1965, were covered by a separate collective-bargaining agreements from that which was applicable to some 19 other counties. Throughout the 21-county area, during this period of time, the employers covered by contracts with the Union were represented by the National Electrical Contractors Association.' The Respondent Company participated in such negotiations as a part of the Weld County bargaining committee, and abided by the contract covering Weld County. On June 16, 1965, the Weld County contractors and the Union commenced negotiations for a new contract. The parties discussed the question of whether the Weld County agreement should be continued, or whether exceptions to the broad area agreement should be executed.' On July 27, 1965, 'Hereinafter referred to as the NECA NECA advised the Union that the Weld County contractors had adopted the Union's proposal to include Weld County in the area agreement, except for certain clauses, among which was the retention of the same wage rates enumerated in the old Weld County agreement. Thereafter, on September 15, 1965, the NECA and the Union signed two agreements. In the first, entitled "Cancellation Agreement", NECA and the Union agreed that as of October 1, 1965, the current Weld County agreement would be null and void and that the terms and conditions of employment in the Weld County geographical area would thenceforth be covered by the area agreement between the parties dated November 23, 1959 (the Denver agreement, as amended). The other agreement, entitled "Agreement Covering Weld County, Colorado," provided, inter alia , that the current agreement was to be null and void as of October 1, 1965, made provision for adding Weld County to the provision relating to the "Normal Construction Labor Market," but also made provision for specified wage rates for workmen in the Weld County area, and excluded Weld County from the new provision for contributions to a health benefit account. These provisions were incorporated into the area agreement, and referred to as the Red Book Agreement, or the April 1, 1965 agreement. On March 2, 1966, the Respondent Company executed a Letter of Assent, which bound it to the area agreement and reaffirmed the bargaining authority of NECA. On March 17, 1966, the Respondent executed, in favor of NECA, a "Bargaining Authorization Agreement," whereby it authorized NECA to act as its bargaining Agent and to negotiate with the Union on its behalf. Pursuant to the 1965 Red Book Agreement, referred to above, the NECA and the Union met, on December 15, 1966, for the purpose of discussing proposed changes. The record reflects, however, that the Weld County contractors not only did not participate in these discussions, they formally voted to withdraw the notice to the Union of desire to renegotiate contract changes with respect to the wage provisions for Weld and Larimer Counties and this limitation was communicated to the Union in writing by NECA. On December 21, 1966, NECA representative John Hecht met with Larimer' and Weld County contractors, at which time the contractors again took the position that they should have separate negotiations with the Union. In January 1967, these contractors agreed to grant the hourly rate increases negotiated by NECA, thereby retaining existing differentials between their rates and those in the 19 counties. On October 16, 1967, the NECA and the Union executed an agreement, effective April I, 1967, purporting to be 'Prior to this meeting, NECA and the Union had discussed modifications of the Weld County agreement 'The Larimer County contractors, like the Weld County contrac,ton, were not covered by the broad area agreement 178 NLRB No. 108 J-H ELECTRIC 691 .,amendments" to the April I. 1965 agreement, which provided , inter alia , that "The amendments herein contained constitute such changes as were jointly and locally negotiated " Special lower wage rates resulted for Weld and Larimer Counties. Since the 1967 agreement between the NECA and the Union was due to expire April 1, 1968, the parties, in November 1967, entered into new negotiations . On No%cmbcr 29, 1967. the Union advised NEC'\ that uniform wage rates should prevail throughout the entire 21-county area. By letter dated December 1, 1967, NECA agreed in principle, but the record retlects that the Respondent Company was not informed of these proposals. On January 11, 1968, NECA and the Union agreed on a common wage scale for all 21 counties. with lower wage rates prevailing for Larimer and Weld Counties for contracts under $5,000 . Also, in January NECA informed the Weld County contractors of these negotiations . The record shows, however , that some contractors , including the Respondent Company, indicated that they would not go along with the uniform wage proposals . On February 6, 1968. the NECA submitted to all its members , including the Respondent . a bulletin showing, inter alia, new wage rates, and on February 7, 1968, N L_C A and the Union signed a 13-page document , setting forth all the amendments to the 1967 contract which the parties had agreed upon, and which were to remain in effect until -April 1. 1970. On March 27, 1968, the Respondent Company advised the NECA that it would not go along with wage increases proposed for the Weld County contractors . By letter dated April 9, 1968, the Union advised the Respondent Company that it was insisting on the Respondent's compliance with the terms and provisions of the current agreement in response thereto, the Respondent Company, on April 12, 1968, stated that it intended to terminate its agreement with Union, adding that it could not go along with the wage increases since it would be unable to compete with local nonunion contractors .' On the same day. the Respondent Company asked NECA to withdraw its name from NECA's negotiating list The instant charges were tiled on August 14, 1968. The General Counsel contends that the Respondent violated Section 8(a)(5) of the Act by refusing to sign, or abide by, the jointly-negotiated collective-bargaining agreement . The Trial Examiner recommended that the complaint be dismissed, primarily on the basis that the joint action of the NECA and the Union in this case , in not according the Respondent any meaningful opportunity to participate in the 1968 negotiations, amounted to a "breach of faith," and, under such circumstances, concluded that the Board should "stay its hand" in this proceeding . We agree with the Trial Examiner's conclusion, but for a somewhat dillerent reason. The fundamental question here is whether the Union comtemplated, in the negotiations leading to the 1968 contract, that the agreement reached in joint bargaining sessions would be binding on all area employers in the NECA, contrary to the past practice for Weld County, or whether it was contemplated that an individual variance would again be negotiated with respect to the Respondent Company, as well as the other Weld County contractors. A careful rev iew of the record convinces us that the Union had no reason to believe that Respondent Company intended to abandon its prior practice of bargaining separately with the Union regarding wage rates in Weld County. Rather, on December 21, 1966, the Weld County contractors told the NECA that they should have separate negotiations with the Union; and in the agreement executed by NECA and the Union on October 16. 1967. it was expressly stated that the amendments therein constituted changes that were jointly and locally negotiated, and wage differentials for the Weld County contractors were retained and agreed to by the Union. Moreover, in January 1968, prior to the execution of the new contract, the Respondent Company, and other Weld County contractors, advised NECA that they would not go along with the proposed uniform wage proposals. Under these circumstances, we conclude that the parties mutually understood that an individual variance in the multiemployer bargaining agreement could be negotiated by the Respondent Company and other Weld County contractors. Accordingly, in refusing to execute. and abide by, the February 7, 1968, contract, and in insisting upon separate negotiations with respect to Weld County contracts, the Respondent Company exercised a prerogative established by past practice, and did not, therefore, refuse to bargain in violation of Section 8(a)(5) and (1) of the Act.` Accordingly, we shall dismiss the complaint ORDER Pursuant to the provisions of Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be. and it hereby is, dismissed in its entirety. MEMBER ZAGORIA, dissenting: I am constrained to disagree with the finding of my colleagues that the 8(a)(5) and (1) charge herein should be dismissed on grounds that the parties to the multiemployer negotiations contemplated, as evinced by past practice, that the Respondent was entitled to negotiate separate wage rates or other economic benefits which varied from those established by bargaining and agreement between 'the Respondent Company also advised the Union that there were 17 nonunion contractors, and only 3 union contractors, in Greeley, Colorado 'The Kroger Company . 141 NLRB 564 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NECA and the Union in multtemployer negotiations. On December 15, 1965. the Respondent and other Weld County electrical contractors executed a cancellation of their separate bargaining agreement with the Union. and simultaneously approved a second written agreement whereby the terms and conditions of employment for their employees were established by the provisions of an areawide contract between the Union and NECA (hereinafter called the Denver agreement). Thereafter, on March 17, 1966. the Respondent executed and returned to NECA a "Bargaining Authorization Agreement," pursuant to which the Respondent authorized NECA to act as its bargaining representative with the Union, and which further provided that the authorization would-remain in lull force and effect until cancelled by the Respondent in accordance with the terms thereof. The authorization contains no reservations, express or implied, which can he construed to impose any limitations on NECA as the Respondent's full authorized bargaining representative, and the Respondent makes no contention that it ever attempted to cancel or modify the authorization in accordance with the terms thereof, or otherwise. Similarly. the Respondent makes no contention that it otherwise made any attempt to effectuate a timely withdraNVl, in whole or in part, from inultiemploycr negotiations. In summary, the Respondent gave full authorization to NECA to bargain on its behalf in multicinployer negotiations, the authorization was conveyed to the Union, and it remained in full force and effect at all times material to this proceeding. On November 29. 1967, the Union served written notice on NECA of its intent to reopen the Denver agreement, scheduled to expire on April 1, 1968, and proposed, inter alia, that the special wage rates for contractors' employees in Weld and Larimer counties be eliminated, and that the parties agree to the substitution of a provision for uniform and substantially increased wage rates for the employees of all contractors covered by the agreement. In reply, on December 1. 1967, NECA advised the Union that renegotiation of the Denver agreement was desired, and NECA also proposed that the new contract establish uniformity of wages, benefits, classifications, and residential agreement applicability for the entire geographic jurisdiction covered by the agreement. When the Union and NECA met in a point negotiating session on December 28, 1967, the Union proposed that the wage differentials applicable to the Weld and Larimer contractors he eliminated, except to the extent they would continue to apply on jobs where the total electrical cost was $5,000 or less. NECA tentatively agreed, and on January 11, 1968, after conducting research on the applicability of the $5,000 figure. NECA agreed to the Union's proposal, and this provision was incorporated into the new Denver agreement executed by the Union and NECA on February 7, 1968. During the course of these negotiations, and before the new agreement .as executed, Respondent and other Weld and Latimer County contractors were advised by a NECA representative that the Union was demanding single negotiations for all the contractors in the multtemployer association, and that the Union had also proposed that the wage rates negotiated for the Denver contractors would apply equally to the contractors in Weld and Larimer Counties. Although the record reveals that the Respondent voiced protest over this proposal to the NECA representative, there is no evidence in the record that the Respondent indicated to the Union its desire for separate negotiations on wages, or that it ever notified the Union that NECA's authority to bargain on the Respondent's behalf was in any way restricted. The stability of the bargaining relationship requires that parties to multiemployer negotiations can abandon that relationship only by a timely and unequivocal notice of intent to withdraw. The Respondent makes no contention here that it complied with the standards established by the Board for a timely and effective withdrawal, but, on the contrary, and notwithstanding the unequivocal wording of the Bargaining Authorization agreement given to NECA, it contends that it retained the privilege of separate bargaining with the Union on wages and other economic benefits. The record fails to sustain the Respondent's contention The Respondent's secret mental reservations on the authority granted to NECA, even if known to NECA, are not notice to the Union that NECA was bargaining on Respondent's behalf with less than full authorization. Lamentable as it may he that NECA failed to keep the Respondent apprised of meetings, proposals, and counter-proposals during the 1967-68 negotiations, the alleged omissions of NECA are not attributable to the Union. As to the pattern of past bargaining, the factor on which my colleagues so firmly rely, the mere willingness of the Union to bargain on past occasions with NECA for a separate wage and benefit schedule for the Respondent and other non-Denver contractors, is not evidence that the Union was on notice in the 1967-68 negotiations that NECA's authority to bargain and execute a whole agreement was in any way restricted. I would find that the Respondent violated Section 8(a)(5) and (I) of the Act, and I would require the Respondent to sign and retroactively apply the terms of the bargaining agreement entered into between the Union and NECA on February 7, 1968. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. Boit.s, Trial Examiner. This case was tried before me at Greeley, Colorado, on November 21 and at Denver, Colorado, on November 22, 1968. The complaint, J-H ELECTRIC 693 which was issued on September 27, 1968. is based upon a charge filed on August 14, 1968, by international Brotherhood of Electrical Workers, Local Union No. 68, AFL-CIO, herein called the Union, and alleges that Respondent, K Jacobson & R. Haberman. d/b/a J-H Electric, had engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. Respondent filed an answer, denying that it had engaged in the unfair labor practice alleged. After the conclusion of the hearing both counsel for the General Counsel and for Respondent filed helpful briefs. Upon the entire record, upon my observation of the witnesses, and upon a consideration of the briefs of the parties, I make the following FINDINGS Of FA( T 1. THL BUSINFSS OF RFSPONDENT K. Jacobson and R. Haberman, doing business as a partnership under the name of J-II Ilectric. maintains its office and principal place of business in Greeley, Colorado. where it is engaged in the installation and servicing of electrical equipment During the year preceding the issuance of the complaint, Respondent purchased and caused to be delivered to its place of business in Greeley goods and materials valued in excess of $50,000, which goods and materials were transported indirectly to it from points outside the State of Colorado. On the basis of these facts, which were stipuhited, it is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein 11. Till' I ABOR ORGANIZATION INVOL\i'i) It is admitted and I find that the Union is a labor organization within the meaning of Section 2( 5) of the Act. Ill. THE UNFAIR LABOR PRACTICi S AI.i.1 GED A Issues The General Counsel contends that Respondent's employees were part of a multi-employer bargaining unit coextensive with the geographical jurisdiction of the Union, comprising 21 counties in northeast Colorado; that Respondent was bound by the terms of a collective-bargaining agreement between Rocky Mountain Chapter, National Electrical Contractors Association, inc. (herein called NECA) and the Union dated April 1. 1965, as amended on April 1, 1967. and as again amended on April 1. 1968. and that Respondent on or about April 1, 1968. and thereafter has unlawfully refused to bargain with the Union by refusing, after that date, to be hound by and to carry out the terms of said agreement. Respondent, on the other hand, contends that by designating NECA to represent it in bargaining negotiations with the Union, it never consented to become a part of the 2I-county unit, but instead remained, as it had been prior to 1965, a part of a multi-employer unit consisting only of electrical contractors in Weld County, Colorado, until the Union itself abandoned the Weld County unit, and that at present its employees may properly be considered only as belonging in a single employer unit.' Respondent has concededly refused to be bound by the 1968 amendments to the area agreement. The issues before me are (1) whether Respondent, in fact, became a part of' the area-wide multiemployer appropriate bargaining unit and (2) even it it did, whether it would effectuate the policies of the Act, under the circumstances of this case, to require Respondent to abide by the terms of said agreement B Bargaining History Prior to 1965 NLCA is an association of employers in the electrical contracting industry which for many years has been representing its members and other employers consenting to he represented by it in labor relations matters. including the negotiation of collective-bargaining agreements with the Union John W Hecht, executive manager of NECA for about 10 years, has participated in negotiating the agreements and amendments thereto and has signed the agreements on behalf of NECA. The record does not show that Respondent has ever been a member of NECA but since 1956 when it began operations, it has. like most other employers under contractual relations with the Union, designated NECA to represent it in collective bargaining with the Union. Prior to 1965 it had been the practice for NECA to negotiate one contract (sometimes referred to as the Denver contract, the area agreement or the Base agreement) for a 19-county group of electrical contractors, including those in Denver, and separate contracts for the electrical contractor groups in Weld and Larimcr Counties. Respondent's place of business is at Greeley, in Weld County. Respondents representatives participated as a part of a bargaining committee of Weld County contractors in negotiating contracts affecting the Weld County employers. Hecht, as manager of NECA, assisted in the negotiations and signed the contracts negotiated On June 25, 1963, Respondent signed a "Letter of Assent" agreeing "to comply with all the terms and conditions of employment contained" in the labor agreement between NECA and the Union for Weld County dated and effective November I. 1959, "and any approved amendments thereto " (G.C Exh 2.)= In signing the letter, Respondent also authorized NECA to act "as its collective bargaining representative for all matters contained in this agreement or pertaining to this agreement" and agreed that the authorization should remain in effect until terminated by written notice to the parties to the agreement 30 days prior to the notification date provided in the agreement. Except for wages and economic benefits, the provisions of the contracts for Weld County contractors tended to follow the provisions of the contracts covering the 19-county or Denver area (G C. Exh. 15). The termination dates of the two contracts, however, were different. The last Weld County contract negotiated prior to 1965 became effective on December 23, 1963 and was, by its terms, to remain in effect until October 1, 1965 and from 'There is no dispute as to the classifications of employees appropriately in a bargaining unit; these consist of all journeymen electricians, cable splicers, technicians and apprentices , excluding office clerical employees, estimators , professional employees and supervisors as defined in the Act 'Most of the evidence presented at the hearing by both the General Counsel and Respondent is in documentary lorm 1-or the convenience of the reader , when one of the documents is referred to, at least for the first time, it will be identified , in abbreviated form, by reference to its exhibit number General Counsel's Exhibits will be referred to as "G C Exh " and Respondent' s Exhibits will be referred to as "Resp Exh " 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year to year thereafter until changed pursuant to written notice of change or termination at least 120 days prior to an anniversary date (G.C. Exh. 8) The last Denver agreement negotiated prior to 1965, which was dated November 23, 1959 and thereafter amended, had April 1. 1965 as its expiration date (G.C. Exh. 12). C Negotiations in 1965 and 1966 Resulting in a Single Contract (the Red Book Agreement) for the 21 County Area, Respondent's Letter of Assent and Bargaining A uthorization It is a fair inference from the evidence summarized in the preceding subsection that prior to 1965 NECA had represented Respondent in a multi-employer Weld County unit rather than as a part of the larger multi-employer unit covered by the 19 or 20 county area agreement. Respondent contends that despite some changes in the bargaining pattern in 1965 and thereafter, it never intended to and never in fact did abandon the Weld County bargaining unit and become a part of the area-wide multi-employer bargaining unit as the General Counsel contends it did. A resolution of this question can, I believe, best be made after a consideration of the actions of the parties catalogued in chronological order On or about March 27, 1965, NECA sent to all contractors who were signatory to the Weld County agreement (including Respondent) a "Negotiations Bulletin" in regard to negotiations had with the Union at a meeting on March 23, 1965, and enclosed certain proposed amendments which NECA requested each signatory to approve and return to NECA (G.C Exh. 12) Among the proposed amendments were the following. GENERAL CONDITIONS A Provided the following amendments are mutually agreed to by both parties, the Weld County Agreement as it now exists shall be cancelled and made null and void after April 1, 1965. B The Rocky Mountain Chapter [NECA1 will appoint a resident contractor of Weld County to act as advisor to the area Negotiating Committee. It was also proposed that certain amendments, when agreed to by the parties, would he incorporated into the Denver agreement dated November 23, 1959 and its amendments. Among these proposed amendments was "Sec. 5 24. Normal Construction Market, of the area agreement is to include the geographical area of Weld County "' Other proposed amendments pertained to the wage rates to be paid for work performed in Weld County. including those rates effective as of April I, 1965, as of October 1. 1965, as of April I, 1966, and as of October 1, 1966 (G C Exh. 12). On April 1, 1965, NECA sent to the electrical contractors who were covered by the Weld County agreement another bulletin informing them that the proposed amendments previously distributed on March 27 were "to be completely disregarded" because the Union at a special meeting held on March 30 had voted against ratification of the proposed amendments On April 26, 1965, however, Respondent indicated its approval of the proposed amendments mailed to it on 'The Weld County agreement then in effect (C C Lxh 8) defined the normal wnstruction market, considered by the secretary of Labor as the basis for defining the appropriate prevailing wage under the Davis-Bacon Act, as consisting only of Weld County The effect of the proposed amendment would apparently be to place Weld County in the expanded 21-county wage area for Davis-Bacon Act purposes March 27 by signing the document and returning it to NECA, as NECA had requested in the March 27 bulletin (B C. Exh. 12). On May 17. 1965, the Union wrote NECA listing certain changes it desired in the current Weld County agreement (Resp. Exh 3). Among the changes proposed was one providing that the agreement to take effect on October I. 1965 should remain in effect to April 1. 1967, the anniversary date of the Denver area agreement (Resp. Exh. 3, Sec. 1 03). On May 28, 1965, NECA wrote to the "Weld County Division" of the Union a letter which served as its notice of a desire to reopen negotiations on the 1963 contract and listed the changes which NECA desired (Resp. Exh. 4). Among the changes proposed was one substituting "Weld County Division of Local Union No 68, IBEW" for "Local No. 68. IBEW" as a party to the contract. a provision that the "Weld County Division" of the Union should he the exclusive source of referral of applicants for employment, and a provision establishing -'a combined Negotiating and Joint Conference Committee." The proposed termination date of the new agreement was to be October 1, 1968. On June 16, 1965, representatives of the Union and of the Weld County contractors, including Respondent, held their first negotiating session for a new contract (G.C. Exh. 18). At this meeting the parties discussed , inter alia, whether the Weld County agreement should he continued or whether exceptions to the area agreement should be negotiated. The minutes of the meeting show the following positions taken by the contractors and the Union CONTRACTORS. We desire that we negotiate exceptions to the area agreement. We fail to understand why the Greeley unit rejected the agreement proposals we extended in March of this year. We have some doubt as to whether the significance of the proposal was understood by the fact that as we proposed it, it would have provided work for a number of the Greeley men where the present condition does not give them opportunity to man the work that their own contractors have required outside of the County. We don't know that they fully understand that deletion of the current agreement would afford the contractors opportunity to hid jobs outside the County and further give the contractor opportunity to man that work with his own Greeley employees. As the agreement is now written, it restricts Greeley employers doing work outside the Greeley area to take more than one Greeley man with them to perform the work on these jobs Our March proposals would permit the employer to take as many of his Greeley employees with him as he needed to perform work outside of Weld County. In view of the above, we fail to understand how the Greeley unit would knowingly reduce their work opportunities by the rejection of the proposal. We know that the work opportunities fluctuate over the entire geographical jurisdiction. This condition requires that the contractor have one restricted opportunity to bid work any where in the geographical area. Our March proposal would allow the employer to hid this work, and further permit him to man his work with his Greeley employees On the contrary, a continuation of the current agreement and/or further restrictions in this agreement would limit the contractor from successfully bidding work outside of the County, due to the tact that he would not utilise the productive experience of his Greeley employees. but would be required to man the job with Hiring flail labor whose experience and J-H ELECTRIC 695 productivity are unknown to him. Examples were given by the contractors wherein they could currently use Greeley men to a greater advantage on some jobs they were now performing outside of the County. UNION Perhaps your people would like to make some sort of proposal which would introduce the idea of deleting the current agreement and adopting the area agreement. The union committee is not in a position. due to the instructions of the membership. to make such a proposal, but we would certainly be willing to discuss any proposal and take same back to the membership for their reaction. Following a caucus, the contractors proposed, among other things. to "delete current agreement: adopt area agreement with the applicable exceptions " The Union pointed out that if the area agreement with exceptions was adopted, the parties would have to change the anniversary date of their agreement to correspond with the anniversary date of the area agreement. Following another caucus the contractors submitted a proposal along that line which included a 30-cent wage package. The Union at first refused to take the proposals back to its membership with a recommendation for its adoption unless a 40-cent wage package was included, but finally agreed to do so. The next negotiating session, and the last one held in 1965, between the Union and Weld County contractors was held on July 7, 1965 (Resp. Lxh. 2) The minutes show a report by the Union to the effect that at a special meeting held on June 23, the membership had voted, inter alia, to "accept Weld County into Base agreement: accept 30 cents per hour wage increase effective immediately. contract to expire April 1, 1967." After a caucus. the contractors rejected the Union's proposals and offered as a counterproposal to maintain the Weld County agreement with its current 2-year status and October 1 anniversary date and to increase wages 40 cents an hour in 10-cent increments every 6 months. They also proposed that the Weld County resident contractors not be considered outside contractors under the area agreement and that their crews have complete mobility anywhere within the Union's jurisdiction The Union accused the contractors of a "complete turn around" since the June 16 meeting, withdrew its last proposals and reinstated its original proposals. Toward the conclusion of the meeting Respondent's representatives, Haberman and Jacobson, voiced a desire to discuss further "the Area Joint Conference and/or Negotiating Committee" which had been proposed by the contractors in their opening letter on May 28 and stated that they felt that Weld County problems could be handled by Weld County people (Resp. Exh. 2). On July 27, 1965 NECA wrote the Union regarding a meeting of Weld County contractors held on July 23 (G.C. Exh. 19).' In this letter NECA informed the Union that the contractors had determined to accept the Union's proposal to include Weld County in the area agreement with certain enumerated exceptions, among which was a retention of the same wage rates enumerated in the old Weld County agreement (G.C. Exh. 8). NECA also stated that wage demands in excess of those provided in the old contract "would but improve the already advantaged position of the local nonsignatory Electrical Contractor" (G.C. Exh. 19) The parties being unable to agree upon the wage issue. this matter was submitted to the Council on Industrial Relations, a body composed of an equal number of management and labor representatives, which sits on a national level to settle disputes between locals of the Union and chapters of NECA The parties, under their contracts, are bound by the Council's decisions. The Council on August 20, 1965 handed down its decision on the wage issue. Following the decision of the Council, the Union and NECA on September 15, 1965 signed two agreements (G.C. Ekh. 17 and G.C. Exh 16). One was entitled "Cancellation Agreement." By its terms NECA and the Union agreed that as of October 1, 1965 the current Weld County agreement would be null and void and that the terms and conditions of employment in the Weld County geographical area would thenceforth be covered by the agreement between the parties dated November 23, 1959 with all amendments thereto (G C Exh. 17) The latter referred to the area or Denver agreement. The other agreement signed by the Union and NECA on September 15, was entitled "Agreement covering Weld County, Colorado" (G.C. Exh 16). It recited, inter a/ia, that the anniversary date of the current agreement was October 1, 1965, that the current agreement was to be null and void as of October 1, 1965; that the current Denver agreement which had been amended on April 1, 1965 would be further amended on October 1, 1965. (1) to provide for a contribution of 15 cents to a Health Benefit Account for each hour worked by an employee but would exclude the geographical areas of Larimer and Weld Counties from this provision, (2) to add Weld County to the provisions relating to the Normal Construction Labor Market. and (3) to provide specified wage rates for workmen in the Weld County area effective on October 1, 1965. on April 1, 1966, and on October 1, 1966 (G C. Exh. 16). These and all other provisions of the agreement were incorporated into the Base agreement and presented as one document under a red cover. sometimes referred to as the Red Book agreement, or the April 1, 1965 agreement (G.C. Exh. 9). Rueben Haberman, one of the two co-partners comprising Respondent. testified that he did not recall seeing the September 15 agreements prior to the hearing. However, Respondent was bound by the Council's decision regarding the wage rates and had apparently already agreed on July 23, along with the other Weld County contractors, to be included in the Base agreement with the other 21 county area contractors (see NECA's July 27 letter, G.C Exh. 19) The September 15 agreements, it would appear, merely implemented the understanding of the parties already reached Moreover as shown below. Respondent was furnished a copy of the base agreement, dated April 1, 1965 (which in its printed Red Book form had been amended to include the substance of the provisions of the September 15 agreements), prior to March 2, 1966 when Haberman's co-partner, K. L Jacobson, signed the Letter of Assent described below on behalf of Respondent The body of the Letter of Assent which Jacobson executed and transmitted to the Union on March 2, 1966, reads as follows (G.C. Exh. 3): 'No other evidence of a meeting on Jul), 23 between NECA and the Acid County contractors appears in the record. Since Respondent has not disputed the accuracy of the statements contained in the July 27 letter and the contents are consistent with the actions subsequently taken by Respondent. I am persuaded that the statements in the letter are factually accurate 69 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL UNION No.68, 1BEW, DENVER, COLORADO This is to certify that the undersigned tirm has examined a copy of the labor Agreement between the Rocky Mountain Chapter, NECA. Inc , and Local Union No. 68, IBEW, dated and effective the 1st day of April, 1965. The undersigned firm hereby agrees to comply with all the terms and conditions of employment contained in the aforementioned Agreement and all approved amendments thereto. It is further agreed that the signing of this Letter of Assent shall he as binding on the undersigned firm as though it had signed the above referred to Agreement and any approved amendments thereto In signing the letter of Assent the undersigned firm does hereby authorize the Rocky Mountain Chapter, NECA, as its collective bargaining representative for all matters contained in this Agreement or pertaining to this Agreement This authorization to the Rocky Mountain Chapter, NECA, shall remain in effect until terminated by written notice to the parties to the aforementioned Agreement 30 days prior to the notification date provided for therein On March 14, 1966, NECA issued and distributed to the contractors at "Labor Bulletin" in which the contractors were requested. inter alias to sign and return to the Union all Letters of Assent which had been mailed to them in order to put the contractors "in proper compliance with the terms and conditions of the April 1965 (Red Book) agreement" (Resp Exh. 14).5 The bulletin also advised and requested all electrical contractors "signatory by practice or assent to the April 1965" agreement to sign and return to NECA a copy of the "Bargaining Authorization Agreement" which was enclosed with the Bulletin (Resp. E.xh. 14). On March 17, 1966 Respondent executed and returned to NECA that "Bargaining Authorization Agreement." The body of it reads as follows (G.C. Exh. 4)- BARGAINING AUTHORIZATION AGREEMENT IT IS HPRFBY AGREED between the undersigned firm engaged in the business of electrical contracting and the Rocky Mountain Chapter, National Electrical Contractors Association, hereinafter referred to as the "Association." That the undersigned firm does hereby authorize and appoint the Association to act as bargaining agent and representative in matters of labor negotiations and labor relations, and authorize said Association to negotiate agreements and amendments to agreement on behalf of this firth with Local Union No 68 of the international Brotherhood of Electrical Workers, and the Association agrees to act as bargaining agent and representative and to use its best et forts to secure the most reasonable terms obtainable on behalf of the undersigned firm and other firms represented by the Association. This authorization and agreement shall continue in effect from year to year unless and until terminated by either the undersigned firm or the Association upon sixty (60) days' written notice, provided that this agreement is coupled with an interest and is irrevocable by either party and may he 'Respondent, as shown abose, had already executed its letter of assent. terminated only on consent of both parties during the period between December 1st of any year and April 1 of the year immediately following. D. Negotiations Resulting in the April 1, 1967 Amendments of the April 1, 1965 Red Book 4gree>•nent In 1965 Red Book agreement described in the preceding subsection, by its terms provided that it should remain in effect until April 1, 1967. and should continue in effect from year to year thereafter unless either party (NECA or the Union) should notify the other party in writing at least 120 days prior to April 1. 1967, or April 1 of any anniversary' year thereafter of any changes desired (G.C. Exh 9, Art. 1, Sec. 1.03 and 1.06) Pursuant to this provision, the Union on November 29, 1966, gave notice to NECA, and NECA on December 1, 1966, gave notice to the Union, of the desire of each to negotiate changes in the 1965 agreement (Resp. Exh. 5 and 6). On December 15, 1966, a Joint Negotiating Committee meeting of NECA and union representatives was held in Denver for the purpose of discussing the proposed changes (Resp Exh. 10) ' No representative of Respondent (other than Hecht from NECA who was representing all of the electrical contractors) was present at this meeting. During the meeting NECA representatives stated: "It is understood that Section 6 18 L [pertaining to Larimer County wage rates] and W [pertaining to Weld County wage rates], would be considered by the people in the areas covered by the same" (Resp. Exh. 10). To this, the Union replied Union Why aren't representatives of the Larimer and Weld Counties' area here? We would like to make it clear that we do not intend to travel into their areas to have them negotiate parts of this agreement. We consider that all negotiating concerning this agreement are carried on in this location at this table. If they have any interest in these matters, this is where the action is, this is where the things will happen and we don't intend to sit around for hours negotiating small parts and pieces of this agreement to satisfy their particular situation. Our representatives are here This is where the decisions are made concerning the entire jurisdiction and if they are interested they should be here. On December 21, 1966. NECA representative Hecht met at Loveland. Colorado, with the Larimer and Weld County contractors who had agreed to be bound by the 1965 area agreement and amendments thereto (Resp. Exh. 9). Both partners of Respondent were present at this meeting Copies of the Letter of Notice from the Union to NECA dated November 29. 1966, and the Letter of Notice from NECA to the Union, dated December 1, 1966. were distributed to the contractors in attendance. The contractors noted that the Union's Letter of Notice had not mentioned that part of Section 6.18 of the current agreement which pertained to wage rates in Weld and Larimer Counties Hecht then told them about the Union's inquiry as to why no contractor representatives from Weld and Larimer Counties were present at the December 15 Denver negotiations and read from the minutes the Union's position quoted above about not intending to negotiate separately with the contractor 'Copies of the minutes of the Joint Negotiating Committee meetings were customarily sent only to those attending the meetings to enable them to review the minutes prior to the next meeting J-H ELECTRIC 697 representatives from Weld and Larimer Counties (Resp Exh. 9) The contractors present took the position that they should have separate negotiations with the Union After discussion, the contractors voted to withdraw from NECA's December 1 Letter of Notice, the proposals for revision of Section 618 (L) and (W). The contractors voted to meet again if and when the Union requested negotiations regarding those sections (Resp. Exh. 9). Pursuant to instructions from the Larimer and Weld County contractors at their December 21 meeting, Hecht wrote the Union on December 27. 1966, that NECA, acting for and in behalf of the Weld and Larimer County contractors, was withdrawing proposals made in its December 21. 1966 Letter of Notice which pertained to Sections 6 18 W. 6.18 (W), 7.03 (L) and 7.03 (W). Copies of this letter were sent to the Weld and Larimer County contractors as well as all members of the NECA Negotiating Committee (Resp. Exh 11). Thereafter, on January 27, 1967, another meeting between Hecht and the Weld and Larimer County contractors was held at Loveland, Colorado (Resp. Exh. 12). Both partners of Respondent were present At the meeting it was voted that the Larimer County contractors would grant the hourly rate increases negotiated by NECA, the amount to be added to the current scale set forth in Section 6.18 (L) of the contract A notation on the minutes of the meeting shows, and Hecht credibly testified. that on January 30, 1967, Respondent agreed, by telephone, to concur in and abide by the rate increases which Larimer County contractors had agreed to accept (Resp. Exh. 12) Because the Union and NECA were unable to agree upon a number of terms during the negotiations for the 1967 agreement, their differences were submitted to the Industrial Relations Council for decision As shown by a "Negotiations Bulletin" sent to all signatory contractors, including Respondent, the Council's decision was handed down on February 17, 1968 (Resp. Exh. 13). The contractors were told that all changes in the contract which were contained in the Council's decision would become effective on April 1, 1967 All contractors, including nonmenhers of NECA, were invited to attend a general meeting at Denver on February 28, 1967 Attached to the bulletin was a copy of the Council's decision. This decision, among other things, contained several provisions giving Weld County contractors special treatment Weld County and Larimer County contractors were required to grant greater wage increases than the other contractors for certain classifications of workers, but these increases were added , to those specified in the current agreement and, as shown in the resulting contract (G.C. Exh. 10), the wage rates remained lower for Weld County contractors than the wage rates paid by the other contractors, including those in Larimer County. though Larimer County wage rates were lower than those in the remaining 19 counties covered by the contract (G C. Exh 10). The resulting agreement, though by its terms effective as of April 1, 1967, was not executed by NECA and the Union until October 16, 1967 (G.C. Exh. 10) It purported to be "amendments" to the April 1, 1965, agreement. The opening sentence states. "The amendments herein contained constitute such changes as were Jointly and locally negotiated and those set forth in Decision No. 1309 of the Council of Industrial Relations dated February 17, 1967." (Emphasis supplied.) As NECA's representative, Hecht, testified, the negotiating position of the Union throughout the negotiations for the 1967 agreement had been that wages for Weld County and the Denver area should be the same, but NECA, in behalf of the Weld County contractors had opposed the abolition of the wage differentials and had prevailed. E. Negotiations Resulting in April 1. 1968, Amendments of the April 1, 1965. Red Book Agreement, the 1968 Green Book Agreement Section 1.03 of the 1967 agreement provided that it should remain in effect until April 1. 1968. That part of Section 1.03 of the 1965 Red Book Agreement which had provided for a continuation of the agreement from year to year unless changed by the parties, had been stricken under the 1967 amendment, as required by the Council's decision. No new document incorporating all provisions of the complete agreement appears to have been compiled. The new provisions agreed upon in 1967 were, as already noted, labeled "Amendments" to the 1965 agreement and both documents must be read together to ascertain the complete 1967 agreement. On November 29, 1967, the Union sent NECA a letter listing changes which it desired to negotiate in the April 1, 1967 agreement. Among the changes proposed was an elimination of Sections 6.18 (A). 6.18 (L) and 6.18 (W) which provided for a differential in wage rates for workers in the 19 counties including the Denver area, in Larimer County and in Weld County and the substitution of a provision for uniform and substantially increased rates for all the classifications of workmen (Resp Exh. 8). On December 1, 1967, NECA sent a letter to the Union proposing changes in the current agreement. It proposed, inter alias to change or delete Section 6 18 (L) and 6.18 (W) in such a manner as "to establish wage scales, classifications and job size limits as will best establish a uniformity of wages, benefits, classifications and Residential Agreement Applicability to the entire geographical jurisdiction covered by this agreement" (Resp Exh 7). Respondent was not furnished with a copy of NECA's proposals to the Union. Nor was it furnished a copy of the Union's proposals to NECA On December 28, 1967, the Union and NECA held a Joint Negotiating Committee meeting in Denver to discuss the proposed changes in their contract (G.C. Exh. 20). Most of the discussion was devoted to the subject of wages and the Weld and Larimer County situations. The Union proposed inter alia, one wage scale for all contractors in the 21 county area covered by the current agreement, with the exception that on jobs in Weld and Larimer Counties whose total electrical cost was $5,000 or less, wage rates lower than those provided for generally were to be permitted. NECA expressed the wish to do some additional research on the propriety of the $5,000 figure for the split scale proposed by the Union. NECA Representative Hecht went to Greeley. in Weld County, and to Fort Collins, in Larimer County, presumably before the next negotiating meeting, to investigate the propriety of using the $5.000 figure as the limitation for negotiating different wage rates in Weld and Larimer Counties. He did not consult Respondent or any of the other contractors to be affected by the wage negotiations but ascertained that a high percentage of the building permits in those counties were for work under $5,000 in cost. On January it, 1968, NECA and the Union held another Joint Negotiating meeting at which the parties agreed that the $5,000 figure was reasonably based on a review of the monthly electrical permit reports from the 69 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Larimer and Weld County areas ( Resp E 'sh. 16). They then proceeded to negotiate wage rate increases on the basis proposed at the December 28 meeting. Respondent did not attend or receive copies of the minutes of either of these negotiating meetings held on December 28 and January 11. In January 1968 NECA Representative Hecht held two meetings with Larimer and Weld County contractors, including Respondent , about the negotiations which were taking place in Denver . At these meetings Hecht informed the contractors that the Union was refusing to bargain with NECA for Weld and Larimer Counties as separate groups He also told them that the wages being negotiated for the Denver area would apply to them also. Some of the contractors present. including Respondent , stated that they could not go along with that agreement . At the time these meetings were held, NECA and the Union had not reached final agreement on a contract ' On Januaiy 30, 1968, an "Amendment Outline" was issued, summarizing the changes and additions to the current contract which the Union and NECA had agreed upon (G.C. EKh . 14).i A copy of this outline was received by Respondent but the date of its receipt does not appear in the record. On February 6, 1968, NECA issued and distributed to all the contractors it purported to represent , including Respondent , a bulletin entitled " Watts-What," to which was attached the wage classifications and rates provided foi in the newly negotiated contract ( Resp. Exh. 17). The contractors were informed that the amendments contained in the 1968 contract were approved by the membership of both signatory parties, that formal amendments would be submitted for approval by the National Offices of each of the parties signatory and that, after approval , the new contract would be printed and distributed . This bulletin, according to Haberman , was Respondent 's first knowledge of the results of the negotiations which had taken place in Denver. While the negotiations were in progress, Hecht had never discussed the $5,000 split scale for wage rates incorporated in the area agreement On February 7, 1968, NECA and the. Union signed a 13-page document which set forth all the amendments to the 1967 contract which the parties had agreed upon (G.C. Exh. 13). This is the document submitted for approval to the National Offices of NECA and the Union . After its approval its contents were incorporated into the complete agreement and printed in a green covered booklet as the April 1, 1965 agreement, as amended on April 1, 1967, and on April 1. 1968 (G.C Lxh 11) By its terms, it is to remain in effect until April 1, 1970, and to continue in effect from year to year thereafter unless changed or terminated pursuant to notice by either party at least 120 days belore April I of any anniversary date. On March 27, 1968, Jacobson had a telephone conversation with Union Rcspresentative Wright in Denver He told Wright that Respondent had not been notified of the meetings at which wage increases had been negotiated and that Respondent could not go along with the increases On April 9, 1968, Union Representative Stone wrote Respondent . directing its attention to Section 1.06 of the 'the exact date of these two meetings does not appear in the record, but based on Haberman 's testimony that NECA and the Union had not yet reached an agreement at the time Hecht talked to the Respondent and other weld County contractors , 1 find that the meetings must have been before the end of January The document is unsigned and there is no evidence as to who issued it contract which requires any party desiring to change or terminate the contract to give notice thereof at least 120 days prior to April 1 of any contract anniversary year. Stone also called Respondent's attention to the fact that it had not rescinded the authorization of NECA to represent it in collective bargaining with the Union. He stated that for these reasons the Union was insisting that Respondent comply with all the terms and provisions of the current agreement (G.C. Exh. 5) After the receipt of this letter, Respondent, on April 12, 1968. wrote the Union, informing it of Respondent's intent to terminate its agreement with the Union "at the earliest possible date" and to abide by the agreement with respect to union employees in its shop as of the date of the letter.' It stated, however, that it could not go along with the increase in wages then in effect under the contract or the increases to become effective on April 1, 1969. because it would not be able to compete with the nonunion contractors in Greeley (G.C. Exh. 6). Respondent stated that there were 17 nonunion to only 3 union contractors there. On the same day, Respondent wrote NECA, enclosing a copy of its letter to the Union and requesting that Respondent's name be withdrawn from NECA's negotiating list (G.C. Exh. 7). Respondent has admittedly failed to pay the newly negotiated wage increases since April 1, 1968, and make contributions to the Health Benefit and Vacation Funds required by the contract F A nalysis and Conclusions The word "unit" does not appear to have been mentioned during the discussions leading up to the change in the bargaining pattern which took place in 1965 or in subsequent discussions between the parties. Moreover. none of the bargaining agreements received in evidence in this case purports specifically to describe the unit covered by the agreements. However, It is a fair assumption that Sec 5 24 of each of the agreements, which defines the "Normal Construction Labor Market" as consisting of the geographical area included in specifically listed counties. was meant to describe the scope of the unit covered by the respective agreements Thus, the Weld County Agreement expiring by its terms on October I. 1965 mentioned only Weld County as included in the "Normal Construction Labor Market," whereas the area agreements as amended in 1965, 1967, and 1968 listed all 21 counties, including Weld County, as within that labor market. The record makes clear that Respondent, prior to agreeing to a change in the bargaining pattern, was aware of the significance of the change in the scope of the labor market which would result from its being covered by the area agreement and that this was considered by Respondent and other Weld County contractors to be an advantage both from the standpoint of the employers and their employees The fact that there was vacillation in 1965 on the part of Respondent and other Weld County contractors, as well as the Union, on the question whether they should abandon their separate Weld County contracts and he covered, instead, by the area agreement tends to show that all parties were weighing the pros and cons of their contemplated action and that they intended that Weld County contractors should become a part of the 'Jacobson testified that Respondent in fact had no union members as of that date J-H ELECTRIC larger unit for bargaining purposes. A careful reading of the Letter of Assent signed by Respondent on March 2, 1966, and the Bargaining Authorization Agreement singed by it on March 17, 1966, can leave little doubt but that Respondent meant to and did become a part of the broad area-wide multi-employer bargaining unit . This unit. I find, is an appropriate bargaining unit 10 This conclusion, however, does not, in my view. automatically dispose of the question whether Respondent should be required in the circumstances of this case to accept and abide by the terms of the area agreement as amended in 1968. It is a reasonable inference from all of the evidence that in the 1965 negotiations for a change in the bargaining pattern, the parties contemplated separate negotiations for Weld County contractors on wage rates and other economic issues and that the agreements reached in those negotiations were to he incorporated into "exceptions" to the area agreement. Such separate negotiations were had in 1965 and their results, with possible modifications by the Industrial Relations Council. were incorporated as exceptions into the 1965 area agreement as amended and printed in the Red Book Agreement. There was no suggestion during the 1965 negotiations that the Union would subsequently refuse to meet and bargain with Weld County contractors regarding these exceptions to the area agreement or that NECA Representative Hecht, who agreed in the Bargaining Authorization Agreement to use his "best efforts to secure the most reasonable terms obtainable on behalf of" Respondent, would later side with and cooperate with the Union in an effort to abolish the exceptions for Weld County contractors in the area agreement The first inkling Respondent and other Weld County contractors had of any unwillingness on the part of the Union to meet separately with Weld County contractors came in connection with the negotiation of the 1967 amendments when Hecht informed the Weld County contractors of the Union's position. These contractors, including Respondent, promptly objected to the Union's position and instructed their representative, Hecht, to withdraw from NECA's letter of notice the proposal it had made for some increase in the wage scale to be paid by Weld County contractors. Acting under instructions from Respondent and other Weld County contractors, Hecht did withdraw this proposal. While the final area agreement reached in 1967 did contain provisions for some wage increases. Respondent expressly agreed to them and the area agreement continued to provide exceptions for Weld County, in accordance with the understanding reached in 1965. The opening sentence of the 1967 contract, moreover, expressly acknowledged that the amendments to the 1965 contract constituted such changes as were jointly and "locally" negotiated. The Union and NECA thereby in effect recognized the validity of the position of Respondent and other Weld County contractors that the exceptions to the area agreement which were to embody the wage rates and economic items affecting Weld County contractors must be negotiated on a local basis The fact that the parties contemplated the negotiation of different wage rates for some employers in the unit does not preclude a finding that a multi-employer unit is appropriate This practice of separate bargaining on some issues, as the Board has pointed out , is not uncommon in multi-employer bargaining units Furniture Employers' Council. 96 NLRB 1002. Weyerhaueser Compant-, 166 NLRB No 7 699 Nevertheless, in connection with negotiating the 1968 amendments to the area agreement, NECA and the Union completely ignored the repeated insistence by Respondent and other Weld County contractors that there must be negotiation on a local level regarding the economic items theretofore contained in the exceptions to the area agreement. Hecht did not even bother to furnish Respondent with copies of the proposals affecting its economic life which NECA and the Union were making to each other until tentative agreement had been reached regarding these matters and the agreement was in effect a Jail accompli. Even when visiting Greeley to investigate what he considered the reasonableness of the $5,000 figure proposed by the Union for a split scale of wage rates for Weld County. Hecht did not inform Respondent of the drastic changes allecting it which were being negotiated. In this case, it seems to me. that we have more than a mere dissatisfaction by an employer with the terms of a contract which his duly designated agent has negotiated for him.ii We are faced basically with action taken by the agent, NECA. and the Union, purporting to bind Respondent in a manner which both knew was contrary to the bargaining pattern agreed to by Respondent. Even if there was room for a misunderstanding during the 1965 negotiations as to Respondent's willingness to relinquish its right to separate negotiations and separate provisions in the area agreement pertaining to wages and other economic items affecting the Weld County contractors, both the Union and NECA knew when the occasion for the next negotiations arose that neither Respondent nor any of the other Weld County contractors had intended to relinquish any such right In the circumstances outlined above, the actions of the Union and NECA in denying to Respondent any meaningful opportunity to participate in the 1968 negotiations on matters affecting its economic life amounted, in my view, to a breach of faith on their part. Regardless of whether, technically, NECA and the Union had a right under the strict terms of the Letter of Assent and Bargaining Authorization Agreement to make the contract it did without consulting the wishes of Respondent, and whether Respondent's attempt to withdraw from the multi-employer bargaining arrangement was technically untimely. I do not believe it will effectuate the policies of the Act to require Respondent to abide by the terms of the area agreement as amended in 1968, in the negotiation of which it had no opportunity to participate. In applying principles of equity, "the Board should stay its hand in this case" and not lend its processes to assist NECA and the Union in profiting from their breach of faith with Respondent See Industrial Engineering Co Inc.. 173 NLRB No. 18, and cases cited therein Accordingly, I shall base no unfair labor practice finding upon Respondent's refusal to abide by the terms of the area agreement as amended in 1968 and shall recommend that the complaint be dismissed. "Such dissatisfaction , of course , cannot in and of itself furnish a lawful basis for renouncing the contract negotiated by the agent or a refusal to abide by its terms Tulsa Sheet Metal Works. 149 NLRB 1487 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings and conclusions and the RECOMMENDED ORDER entire record, and pursuant to Section 10(c) of the Act, The complaint herein is hereby dismissed in its entirety. there is hereby issued the following: