Edwards & Webb Construction Co.

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edwards & Webb Construction Company and International Union of Operating Engineers, Local No. 18, AFL-CIO. Case 9-CA-7038 November 28, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 28, 1973, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed an 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge. The Board will substitute its Order for the Administrative Law Judge's recommended Order, as its Order conforms more.closely to the findings in this case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Edwards & Webb Construction Company, Danville, Kentucky, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Interna- tional Union of Operating Engineers , Local No. 18, AFL-CIO, as the exclusive representative of its employees in the appropriate unit , or unilaterally changing any term or condition of employment without giving the said Union adequate prior notification and opportunity to bargain collectively. The appropriate unit is: All operating engineers engaged in the erection, operation, maintenance, and repair of construc- tion equipment in the Counties of Boone, Camp- ' Chairman Miller agrees that the Respondent violated Sec . 8(a)(1) and (5) when it refused to bargain with the Operating Engineers both before and after May 1, 1972, and unilaterally terminated the terms and conditions of employment of the unit employees without bargaining with that Union as their exclusive bargaining representative . He also agrees with the finding that the Respondent violated Sec . 8(a)(3) when it refused to reemploy Cordell Brown because Respondent would not sign a contract with the Operating Engineers and would no longer "use any oilers," the classification Brown held. He would not, however, find that Respondent violated Sec. bell, Kenton, and Pendleton, Kentucky, but excluding all office clerical employees, profession- al employees, all other employees, guards, and supervisors as defined in the Act. (b) Discharging, refusing to reinstate, or otherwise discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment because of their member- ship in or activities on behalf of any labor organiza- tion. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with International Union of Operating Engineers, Local No. 18, AFL-CIO, as the exclusive representa- tive of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody the under- standing in a signed written agreement. (b) Offer Cordell Brown immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (c) Make whole the employees in the appropriate unit for any loss of pay they may have suffered as a result of the Respondent's unilateral actions, in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (e) Post at its Danville, Kentucky, location, and also at its jobsite at Licking River Bridge, Latonia, Kentucky, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 9, 8(a)(3) when it unilaterally abrogated the terms and conditions of employment of the unit employees as described above, absent independent evidence that such was discriminatorily motivated. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 207 NLRB No. 101 EDWARDS & WEBB CONSTRUCTION CO. 615 after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge of the National Labor Relations Board, at which all sides had the opportunity to be heard, it has been decided that we, Edwards & Webb Construction Company, violated the National Labor Relations Act. We have been ordered to post this notice and to carry out its terms. The National Labor Relations Act guarantees to employees the right to join unions, to help unions, to bargain collectively through representatives of their own choice, to act collectively with other employees in bargaining with employers, and to be free from interference, restraint, coercion, or threat because of the exercise of any of those rights or any other rights under the Act. The Act also guarantees employees the right to refrain from exercising those rights if they so choose. It is up to the employees themselves, without interference from their employer or anybody else. Accordingly, we assure you that from now on: WE WILL NOT violate any of your rights listed above. WE WILL, upon request, bargain in good faith with International Union of Operating Engineers, Local No. 18, AFL-CIO, concerning wages, job classifications, fringe benefits, and all other terms and conditions of employment, and embody any understanding reached in a signed written agree- ment. The appropriate unit is as follows: All operating engineers engaged in the erection, operation, maintenance, and repair of construction equipment in Boone, Camp- bell, Kenton, and Pendleton Counties, Ken- tucky, but excluding all office clerical employees, professional employees, all other employees, guards, and supervisors as de- fined in the National Labor Relations Act, as amended. WE WILL NOT unilaterally change any of the terms or conditions of employment of employees in this appropriate unit. WE WILL offer Cordell Brown immediate and full reinstatement to his former job (or equivalent job) with us; and WE WILL also pay wages he is entitled to, plus interest. WE WILL make whole all of the employees in the above collective-bargaining unit for all fringe and other benefits of which we unlawfully deprived them, plus interest. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise 'of the rights guaranteed you in Section 7 of the Act. EDWARDS & WEBB CONSTRUCTION COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION 1. PRELIMINARY STATEMENT N. OHLBAUM, This proceeding 1 under the National Labor Relations Act as amended, 29 U.S.C. 151, et seq. (Act), was tried before me in Cincinnati, Ohio, on August 31, 1972, and May 15, 1973, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and contentions. The trial was recessed during the intervening period upon request of the parties. After all parties rested their proof on May 15, at their request they were allowed until June 12, upon their subsequent application extended to June 19, 1973, to file briefs, which have been received and considered, together with the entire record. The basic issues are whether Respondent has violated r Upon complaint (as amended, without opposition, at the trial so as, inter alit, to allege violation of Section 8(a)(3) of the Act) of the National Labor Relations Board Regional Director for Region 9 (Cincinnati, Ohio), issued June 23 growing out of charge filed May 12, 1972. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1), (3), and (5) of the Act by refusing to recognize (or withdrawing recognition from), meet, and bargain in good faith with the Charging Party as exclusive collective-bargaining representative of an appropriate bargaining unit of Respondent's employees; by unilaterally abrogating an established job classification and discharg- ing or refusing to allow a bargaining unit member to continue to work therein; and by unilaterally abrogating its bargaining unit employees' established fringe benefits. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES; JURISDICTION At all material times Edwards & Webb Construction Company, Respondent herein, has been and is a Kentucky corporation engaged in the business of highway and heavy construction. In the course and conduct of those opera- tions in the representative year immediately preceding issuance of the complaint, Respondent's inflow of goods and materials, directly in interstate commerce to its Danville, Kentucky, location from places outside of Kentucky, exceeded $50,000 in value. I accordingly find that at all material times Respondent has been and is an employer engaged in commerce and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. I further find that at all material times International Union of Operating Engineers, Local No. 18, AFL-CIO (Operating Engineers Local 18, Operating Engineers, or Union), Charging Party herein, has been and is a labor organization as defined in Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. Facts as Found Respondent is a highway and heavy construction contractor operating in an area including the four counties (i.e., Boone, Campbell, Kenton, and Pendleton) of north- ern Kentucky approximately opposite Cincinnati, Ohio, which are included in the area of territorial activity or "jurisdiction" of Charging Party Operating Engineers Local 18. In 1967, while Respondent was subcontractor on a highway construction job in Campbell County, Kentucky, it entered into a 3 -year collective agreement (executed April 24, 1967, by its terms effective June 1 , 1964, to May 1, 1967) with Operating Engineers Local 18 ; at the same time Respondent also executed to that Union a supplemen- tal instrument ("Assent of Participation") agreeing to pay certain fringe benefits to or for employees in the bargain- ing unit represented by Operating Engineers. During the 2 "Ohio State Highway Heavy Agreement" (G.C. Exh. 4) and "Assent of Participation" (G.C. Exh. 5). 3 Operating Engineers entered into the collective agreement here in question with OCA (a multiemployer group), with each OCA member thereafter executing individual assent thereto . While not belonging to OCA, Respondent concedes it entered into the relevant collective agreements and ancillary fringe benefits documents with Operating Engineers. These collective agreements (G.C. Exhs. 2 and 4) by their terms cover 85 (i.e., all except 3-the northeastern counties of Columbiana, Mahoning, and existence of that job, which ran for 7 or 8 months, with only one operating engineer-a crane operator-on the job, Respondent complied with the terms of that agree- ment and fringe benefits document. Respondent then left the aforedescribed four-county area until 1970. In 1970, Respondent returned to the four-county area as subcontractor on a heavy construction job under general contractor Watts & Call Company in Boone County Kentucky. At this time, on March 9, 1970, Respondent entered into another collective agreement and supplemen- tal "Assent of Participation" (fringe benefits) with Operat- ing Engineers Local 18, for the period to May 1, 1972.2 On this job, Respondent utilized two cranes, end-loaders, and an air compressor, employing members of Operating Engineers Local 18 or of its parent "International" or sister local thereof on transfer cards. On this job also, which lasted about 18 months, Respondent likewise complied with the obligations it assumed by entering into the described collective agreement and "Assent of Participa- tion" (fringe benefits) with Operating Engineers Local 18. In January 1971-during the pendency of the foregoing collective agreement and ancillary fringe benefit docu- ment-specifically on January 12, 1971, based upon information received by Operating Engineers Local 18, the latter's Business Representative (Clifford Farwell) took up with Respondent's principal, Edwards, that Respondent was operating two cranes on its Licking River (Latonia, spanning Kenton and Campbell counties, Kentucky) bridge job without employing Operating Engineers as required. Edwards, however, was noncommittal, stating he wished to discuss the matter with his associate, Webb. Later that month (January 1971), Operating Engineers Business Representative Farwell met with Webb-Respon- dent's President-who informed him that he and Edwards had decided to employ members of a different union-In- ternational Union of District 50, Allied and Technical Workers of U.S.A. and Canada (District 5%-rather than those of Operating Engineers Local 18, and remarked to Farwell that Respondent could also obtain legal represent- ation from District 50 without cost. Thereupon, on January 18, 1971, Operating Engineers filed a grievance against Respondent with Ohio Contractors Association (OCA),3 which on January 22, 1971, determined4 that Respondent was in violation of its collective agreement with Operating Engineers. Thereafter, Operating Engineers commenced a proceeding under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, against Respondent in the United States District Court, Eastern District of Kentucky (G.C. Exh. 6D), which after trial on March 2-3, 1971 (G.C. Exh. 6C) issued an order (dated March 5, 1971) requiring Respondent to comply with that collective agreement (G.C. Exhs. 6A and 6B).5 Because Respondent neverthe- less persisted in refusing to comply with the collective Trumbull) counties in Ohio and also the four aforementioned counties (Boone, Campbell, Kenton, and Pendleton) in northern Kentucky. 4 On notice to Respondent, which failed to appear. 5 There is no indication or contention that the court's order was appealed or is not final. As shown by the court's findings of fact (G.C. Exh. 6C, p. 3, No. 6) in that proceeding, District 50 sought unsuccessfully to intervene therein-as it likewise did in the instant proceeding (my order to that effect having been sustained by the Board on October 24, 1972). EDWARDS & WEBB CONSTRUCTION CO. 617 agreement, Operating Engineers brought another grievance proceeding against Respondent before OCA, resulting in a temporary shutdown and resumption-some months later-of Respondent's operations on the Licking River bridge project utilizing Operating Engineers members on two or three cranes, an end-loader, a backhoe, and a compressor, until May 1972. Meanwhile, however, on February 27, 1972, Respondent had given Operating Engi- neers timely notice of its desire to terminate its subsisting collective agreement (expiringMay 1,1972) withthatUnion 6 It is undisputed that Operating Engineers requests upon Respondent to bargain with it have been unavailing. From May I to July 1, 1972, Respondent has utilized two cranes and two end-loaders on the Licking River bridge job, which as of the date of the trial' of the instant proceeding was still in progress. However, since May 1, 1972, although Respondent employed three operating engineers (members of Charging Party), Respondent has neither paid any fringe benefits to or for them nor has it bargained with Operating Engineers regarding its discon- tinuance of fringe benefits or on any other subjects; nor, since May 1, 1972, has Respondent employed any oilers (members of Operating Engineers and covered by its collective agreements and included in the appropriate bargaining units), although Respondent had done so prior to then.? On June 1, 1972 Operating Engineers wrote Respondent that its calls to Respondent were unreturned and, remind- ing Respondent that it was still the collective-bargaining representative of a majority of its construction equipment operators and oilers at the Licking River bridge project, and that it stood "ready to prove our majority status through a submission of authorization cards to a mutual party," requested that Respondent meet with it for collective-bargaining purposes (G.C. Exh. 8). The letter evoked a response from Respondent's attorneys on June 9, "refus[ing] to grant your request for bargaining" upon the ground that Respondent "has a good faith doubt that, in fact, your union represents its employees" and that there were pending before the National Labor Relations Board the Union's election petition (9-RC-9566) as well as the instant unfair labor practices proceeding, which should first "be disposed of."8 Cordell Brown, an oiler member of Operating Engineers, covered under Respondent's collective agreement with that Union9 and referred and supplied to Respondent on the Licking River bridge project under the terms thereof, was 6 After receipt of Respondent's February 27, 1972, notice of intention not to renew its collective agreement, Operating Engineers on April 27 filed an election petition (9-RC-9566) with the Board's Regional Director, which on June 19, 1972, it withdrew, the Regional Director not having proceeded with it meanwhile in view of the Umon's filing of its charge on May 12 giving rise to the instant proceeding. 7 Operating Engineers furnished Respondent its required member employees through its Cincinnati hiring hall. 8 See fn 6, supra. Under established Board procedures, as is well known, the filing' of an unfair labor practices charge normally acts to block processing of an election petition. American Metal Products Co., 139 NLRB 601. And, of course, it would be absurd to justify a refusal to bargain upon the ground that the person (employer or union) charged with such refusal is the Respondent in an unfair labor practices case based upon that refusal. 9 It is established, as appears from the collective agreements (G.C. Exhs. 2 and 4) entered into by Respondent, that all operating engineers-includ- ing oilers here-engaged in the erection, operation , maintenance, and repair employed there by Respondent from around January or February to around the end of April, 1972. Brown assisted on equipment operated by Operating Engineer Gibbs (also a member of and represented by Operating Engineers). For some time prior to late April (1972), because of the continued prevalence of high water conditions precluding work continuance, Brown found himself off as much as on the job. When Brown reported again for work on the morning of April 2410-while Respondent's collective agreement (G.C. Exh. 4) was still in full force and effect-Brown was told by Respondent's foreman Simp- son" that work was not available because the high water precluded "going to work because we can't get down to the river," but that he would be notified when the water receded to the point where he could resume work. After about a week, i.e., on or about May 1, Brown again presented himself for work. This time, Foreman Simpson declined to allow him to work on the ground that Respondent had not yet signed a "contract" with Operat- ing Engineers, and suggested that Brown await the arrival of Respondent's Superintendent, Jerry Edwards. When Edwards arrived, he likewise refused to allow Brown to resume his work, upon the ground that Respondent had not signed a contract with Operating Engineers and would no longer "use any oilers"; nor did Edwards offer Brown any other job. At no time since then has Brown, been recalled to work or been offered any work of any kind by Respondent; nor has Brown ever quit or, received any formal termination slip from Respondent.12 James Turner, a heavy construction equipment operator supplied to Respondent through Operating Engineers (of which Turner was and is a member) under the parties' collective agreement, worked for Respondent on the Licking River bridge project from May 1971 to November 1972, when he was laid off because of high water conditions on the river. While there, Turner operated an end-loader or air compressor, as well as other equipment (backhoe). At the same time, there were also two or three cranes and a backhoe on the job, operated by, other members of Operating Engineers. On or about May 1, 1972, Turner and crane operator and fellow Operating Engineers member Chatman were told by Respondent's Foreman Simpson, "Now, boys, you can go to work, if you want to. There's no contract . . . there's no 40-hour guarantee. . . . [You] are under . . . supervision . . . of District 50.13 . . . There [will] be no oilers." Although of construction equipment in all counties of Ohio except Columbiana, Mahoning, and Trumbull, and including the counties of Boone, Campbell, Kenton, and Pendleton in Kentucky, but excluding all office' clerical employees, professional employees, all other employees, guards, and supervisors as defined in the Act, constitute an appropriate bargaining unit here within the meaning of Section 9(b) of the Act. I so find. 10 Brown had been away from work for about a week or two because of illness. It was not shown, one way or the other, whether, in view of the prevalence of "high water" conditions, his work would have been available to Brown for all or any part of the period of his illness. u This is uncontradicted, since, without explanation, Simpson did not testify 12 The findings in the foregoing paragraph are based upon credited testimony of General Counsel witness Cordell Brown. 13 Le., International Union of District 50, Allied and Technical Workers of U.S.A. and Canada See In 5, supra. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turner and the other Operating Engineer members-ex- cept oiler Cordell Brown i&---continued to work for Respon- dent on the Licking River bridge project after May 1, Respondent unilaterally discontinued paying their fringe benefits thereafter.15. Notwithstanding Foreman Simpson's quoted statement to Turner on or about May 1, Turner refused to join or pay dues to District 50, but has continued to be a member of Operating Engineers. At no time after May 1, 1972, did Respondent deduct and pay over union dues to Operating Engineers on any of the members of that Union. In November 1972 Turner was terminated and replaced by another employee or employees, not a member of Operat- ing Engineers, although there continued to be work of the nature theretofore and then being performed by Turner.16 The facts as set forth and found above are largely undisputed or uncontradicted by Respondent, which concedes that it entered into the collective agreements in question with Operating Engineers, and that prior to May 1, 1972, it had among other things employed an oiler and had been paying fringe benefits (hospitalization, etc.) as required directly to that Union, practices which it unilaterally discontinued totally on May 1, 197217 At the trial, Respondent indicated its defense to be that it was no longer obligated to recognize or bargain with Operating Engineers because Respondent had-during the term of its 1967-72 collective agreement with Operating Engineers--entered into another collective agreement with another union, Local 50,18 on July 1, 1971, for a 3-year term to June or July 30, 1974.19 Conceding that Operating Engineers as representative of Respondent's operating engineers requested Respondent to bargain with it, Respondent's President Webb testified that he refused to do so "since we had a contract with District 50 we couldn't enter into a contract with Local 18 [Operating EngineersI.- Webb conceded that at no time prior to or on May 1, 1972, did District 50 represent a majority of its operating engineers, but that Operating Engineers Local 18 did I find that at all times material herein Operating Engineers Local 18 has been and is the duly authorized collective-bargaining representative of the aforedescribed appropriate bargaining unit of Respondents employees20 as set forth in the complaint herein. I further find that, nevertheless, Respondent has since February 27, 1972, and continuing to date failed and refused to bargain, or to meet 14 The findings herein concerning the unilateral abrogation of the job classification and layoff of Cordell Brown have been detailed above. 15 With the exception of hospitalization only until their then current premium coverage expired or lapsed. 16 Findings in the foregoing two paragraphs are based upon credited testimony of Turner 17 Based upon Turner's credited testimony to the contrary, as well as my comparative testimonial demeanor observations, and Respondent's inade- quately explained failure to produce records-which should readily have been available--to substantiate his testimony, I discredit Respondent President Marion C. Webb's testimony that after May 1, 1972, Respondent paid the former fringe benefits directly and personally to each of the Operating Engineers members who continued in its employ. is See In. 5, supra 19 After first testifying that his company had also had an earlier contract or contracts with Local 50, Respondent's President Marion C. Webb conceded that such agreement or agreements-again, unaccountably unproduced either at this trial or at the United States district court trial-were on a job-to-job basis only, in contrast to the fixed-term-of-years, or, agree to meet for the purpose of bargaining, with Operating Engineers Local 18, collectively concerning any term or condition of employment of Respondent's employ- ees in said unit represented by said Union. I further find that Respondent has unilaterally changed conditions of employment of its said employees by its unilateral elimination of the oiler operating engineer classification and position and termination of its oiler Cordell Brown thereunder, and by its unilateral discontinuance and elimination of existing fringe benefits thereunder. B. Discussion It is undisputed that Respondent was bound by its collective agreement of 1967-72 to bargain collectively with Operating Engineers, which in fact represented and which Respondent had recognized as the duly authorized collective-bargaining representative of, Respondent's oper- ating engineers (including oilers). It is clearly no defense to that obligation on Respondent's part during the term of that agreement (1967-May 1, 1972) that in 1971 Respon- dent entered into a "conflicting" agreement with another union, District 50. It is conceded that at all times up to at least May 1, 1972, Respondent's operating engineers (including oilers) were represented by Operating Engineers as their exclusive collective-bargaining representative. Thus, it was a clear violation of Respondent's bargaining obligation under Section 8(a)(5) of the Act to fail or refuse to bargain with Operating Engineers at any time during the pendency of that agreement until May 1, 1972. As for the period since May, 1972, it is again no defense to Respondent's bargaining obligation that some time in 1971 it had entered into a conflicting agreement with another union which concededly did not then or thereafter represent the employees in the particular bargaining unit. Beyond that, it is well understood in labor relations law that even after expiration of a collective agreement the bargaining authority of the unit employees' designated bargaining representative (even though uncertified by the Board) does not automatically grind to a halt with the mechanical expiration of the agreement, but is presumed at that point to continue.21 Here, far from rebutting or even attempting to rebut that presumption, it has been affirma- tively established or conceded that there has been no change in Operating Engineers collective-bargaining au- thority on behalf of the unit employees. As indicated statewide collective agreements with Operating Engineers here. After also conceding that he knows of no contract with District 50 covering the geographical area encompassed by Respondent's collective agreements with Operating Engineers here, at any time when those collective agreements were entered into, Webb attempted to indicate some alleged uncertainty on this score-but, again, unexplainedly failed to produce any contract or other documentary or testimonial proof to resolve any such purported uncertainty. It was finally formally stipulated on the record by Respondent that whether or not an agreement existed between Respondent and District 50 covering the Watts & Call Company job (Boone County, Kentucky, 1970, as shown above) is irrelevant to the instant proceeding. Since I was-and am-of the view that Respondent's statewide agreement (concededly the first such) entered into with District 50 at a time (1971) when it was bound by statewide agreement to Operating Engineers, does not constitute a defense to the violations charged , I sustained objection to receipt of that agreement in evidence. 20 See In. 9, supra 21 NLRB v. Frick Company, 423 F2d 1327, 1330-32 (C.A. 3, 1970). EDWARDS & WEBB CONSTRUCTION CO. 619 above, it is of course no answer to Respondent's bargaining obligation for it to assert, as it did to Operating Engineers here when that Union sought to bargain with it, that Operating Engineers had filed unfair labor charges against it based upon that very refusal to bargain5collectively with Operating Engineers. To insist this is a defense is in effect to assert the absurdity that an injured party's seeking of redress under the Act frees the wrongdoer from obligation to comply with the Act. Under the circumstances shown, since Operating Engineers continued on and after May 1, 1972, to represent the bargaining unit employees, Respon- dent's refusal to bargain with it after that date likewise constituted a failure to comply with its statutory obligation under Section 8(a)(5) of the Act.22 Finally, it follows and is likewise clear that Respondent's unilateral changes in the described terms and conditions of employment of the unit employees here, without bargain- ing with Operating Engineers as their designated bargain- ing representative, were also violations of Section 8(a)(5) of the Act; as well as Section 8(a)(3), since by discriminating in regard to hire, tenure, terms, or conditions of employ- ment they discourage membership in a labor organization. It should be superfluous to have to point out that the obligation to bargain collectively with a bargaining representative is in no way dependent upon the existence of a contract; much if not most collective bargaining is designed to result in a contract. Similarly, terms and conditions of employment-whether or not contained in an existing collective agreement may not unilaterally be abrogated, in the presence of a collective-bargaining representative; and this certainly means that they cannot unilaterally be mechanically lopped off, as here, at the instant of formal contract "expiration." The Act requires that changes or innovations in existing employment terms and conditions be bargained with the employees' bargain- ing representative. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 209-17 (1964); Harold W. Hinson, d/b/a Hen House Market No. 3 v. N.L.RB., 428 F.2d 133, 137-139 (C.A. 8, 1970); Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO v. N.L.R.B., 320 F.2d 615, 620 (C.A. 3, 1963), cert. denied sub nom. Bethlehem Steel Co. v. N.L.RB., 375 U.S. 984 (1964); Frontier Homes Corporation, 153 NLRB 1070 1072-73, enfd. as modified 371 F.2d 974,979-981 (C.A_ 8, 1967); The Crestline Company, 133 NLRB 256, 257. 22 In its posthearing brief, Respondent further contends that its actions here were not unlawful and that it is absolved of bargaining obligation toward Operating Engineers, by reason of the provisions of Section 8(f) of the Act applicable to the building and construction industry. The 8(f) proviso validating prehire exclusive recognition agreements in the construction industry by its express terms does not apply to prehire agreements violative of Section 8(a) Furthermore, the provision was not designed as a mechanism to force an unwanted representative upon employees; nor was it intended for situations where there already is an existing duly authorized exclusive collective-bargaining representative in an established, stable bargaining relationship under a valid subsisting contract It does not provide a means for an employer to dislodge an existing valid bargaining representative through mere entry by the employer into a "prehire agreement" with another union not representing the employees. (An employer in genuine doubt as to which of two or more unions actually represents his employees-concededly not the situation here-has redress through a Midwest Piping & Supply Co., Inc. [63 NLRB 10601 election, which there is also no indication that Respondent here has ever sought.) I reject Respondent's contrary contention; otherwise an employer disliking an incumbent union could oust it supply by signing a contract with another Since these violations of Section 8(a)(5) and (3) also interfere with, restrain, and coerce employees in the exercise of rights guaranteed them under Section 7, they also constitute violations of Section 8(a)(1) of the Act. It is accordingly found that by its described conduct Respondent has engaged and is continuing to engage in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. Cf. David F. Irvin and James B. McKelvy, Partners, d/b/a The Irvin-McKelvy Company, 194 NLRB 52; R. J. Smith Construction Co. Inc., 191 NLRB 693, 695, fn. 5. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By its conduct set forth and found in "III" supra, Respondent has engaged and is continuing to engage in unfair labor practices in continuing violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, substantially as alleged in the complaint as amended. 3. The aforesaid unfair labor practices and each of them have affected, are affecting, and unless permanently restrained and enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. Remedy Having been found to have violated Section 8(a)(5), (3), and (1) of the Act, Respondent should be ordered to cease and desist from continuing such or like violations, and to make amends for its unilateral abrogations and changes of the terms and conditions of employment of its bargaining unit employees by making them whole therefor through offer of reinstatement to employment (Cordell Brown) with appropriate backpay and payment and restoration of withdrawn fringe benefits. Backpay and other amounts to be paid shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716; and Respondent should be required to make available neces- sary records for that purpose. And Respondent should be required to post the usual notice accordingly. (even a sweetheart, assisted, or minority) union, thus not merely unhinging that stability of industrial relations which is one of the Act's basic objectives, but also preventing the free choice of bargaining representative which is another cornerstone purpose of the Act. As the Board observed in Bricklayers & Masons International Union, Local No. 3, 162 NLRB 476, 478, enfd. 405 F.2d 469 (C.A 9, 1968), "the entire legislative history of Section 8(f)(1) is couched in terms of `prehire agreements ,' a reference which can have no meaning in the situation where , as here, the parties are continuing an existing bargaining relationship under which employees have previously been hired." And, where an employer enters into a "prehire agreement" containing a union-security provision, with a second union and withdraws recognition from a first union enjoying majority status to which the employer is contractually bound, the employer also violates Section union and withdraws recognition from a first union enjoying majority status to which the employer is contractually bound, the employer also violates Section 8(a)(2) as well as 8(a)(3) of the Act. International Ladies' Garment Workers' Union, AFL-CIO v N.L.R.B. [Bernhard-Altmann Texas Corp.], 366 U.S. 731 (1961); N.LR B v. Sturgeon Electric Co„ Inc,419 F.2d 51 (C.A 10, 1969), Fiore Brothers Oil Co, Inc., 137 NLRB 191, 208. enfd. 317 F.2d 710,711 (C.A. 2, 1963). 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law, [Recommended Order omitted from publication.] and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following: