Marquis Elevator Co., Inc.

MARQUIS ELEVATOR COMPANY, INC. 461 Marquis Elevator Company, Inc. and International Union of Elevator Constructors, Local Union 31. Case 23-CA-5078 April 21, 1975 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On September 26, 1974, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. We adopt the Administrative Law Judge's findings that Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing on April 20, 1974, its recognition of Local Union 31 of the International Union of Eleva- tor Constructors as the collective-bargaining represen- tative of Respondent's elevator constructor mechanics and helpers, all of whom were members of the Union. We further find that Respondent violated Section 8(a)(5) and (1) by refusing to bargain thereafter, and by unilaterally changing the existing terms and conditions of employment by instituting its own wage guidelines and discontinuing payments to the various employee trust funds. We also adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) by constructively discharging employees Foster and Sobolik by unlawfully and knowingly creating con- ditions that made it impossible for them to maintain their union membership and continue to work for the Respondent. We further agree that Respondent vi- olated Section 8(a)(3) of the Act by discharging em- ployees Loving and Derr. However, while the Adminis- trative Law Judge found that Respondent constructively discharged these two employees, we find that by not recalling them after March 25, 1974, their discharges were actual discharges and not constructive discharges. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We disagree with and therefore do not adopt the Administrative Law Judge's finding that employee Kilsby was the subject of a constructive discharge when he quit the Respondent's employ in February 1974. Employee Kilsby's tenure with the Respondent com- menced in November 1973 and continued through Feb- ruary 20, 1974, the date of his resignation. Kilsby testi- fied that in the midst of a conversation in December 1973 concerning the mileage Kilsby was charging Re- spondent, Respondent's president, Bob Marquis, stated "looks like I'm going to have to go `rat.' "I Kilsby replied that in that case he would have to quit. Toward the end of January 1974 a similar conversation was repeated between Respondent and Kilsby. When ques- tioned about his resignation on February 20, Kilsby testified that if he continued working for the Respond- ent he could see he "was going to get in bad with the Local." Kilsby explained that Bob Marquis often worked with tools, a violation of the standard agree- ment, and on at least one occasion sought Kilsby's assistance to enable him to perform such work. The Administrative Law Judge found that Kilsby's resignation was the direct result of the Respondent's conduct during the months prior to its total repudia- tion of Local Union 31 and, therefore, a constructive discharge in violation of Section 8(a)(3). We find that, while Foster and Sobolik's resignations were the direct result of the Respondent's unfair labor practices on April 20 and thereafter, Kilsby's departure 2 months earlier on February 20 was premature and cannot be attributed to Respondent's subsequent un- lawful actions. Until April 20 Respondent took no ac- tion other than revealing its hostile attitude toward the recognized bargaining agent in infrequent and brief conversations with.a few employees. While resigning in the face of the unlawful withdrawl of union recognition and termination of existing union benefits and member- ship is one thing, quitting in anticipation that such may take place later on is an entirely different matter. Therefore, we find that in the case of employee Kilsby there is no constructive discharge and therefore no 8(a)(3) violation. We find it unnecessary to determine whether Re- spondent engaged in individual bargaining with em- ployees Morrison and Foster in violation of Section 8(a)(5) and (1) of the Act, since the bargaining order being issued to remedy the other violations of Section 8(a)(5) and (1) of the Act necessarily includes a prohi- bition against the bargaining with individual em- ployees. We also find the General Counsel's exception con- cerning backpay is meritorious and will include in our Order a provision calling for the payment to all em- ployees sums of money equal to the amounts they nor- 2 The term "rat" in these circumstances means to go nonunion. 217 NLRB No. 78 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mally would have earned under the terms of the July 1972 industrywide contract. This backpay should also include the payment of interest at 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Amended Remedy Delete from the second paragraph , line 7 , the name "Kilsby." AMENDED CONCLUSIONS OF LAW 1. Delete present paragraph 7 and substitute the fol- lowing: "7. Since April 20, 1974, the Respondent has vi- olated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union and on April 20, 1974, by withdrawing recognition from the Union and thereafter changing wages and employee benefits and other terms and conditions of employment." 2. Delete from paragraph 8 the word "construc- tively" and the name "Paul W . Kilsby." ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Marquis Elevator Company, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(d) in its entirety and reletter the remaining paragraphs accordingly. 2. Delete from paragraph 2(d) the name "Paul W. Kilsby." 3. Add the following as paragraph 2(e) and reletter the subsequent paragraphs accordingly: "(e) Make whole all its employees for any loss of wages and other benefits that they may have suffered as a result of Respondent's unlawful refusal to bar- gain." 4. Substitute the attached notice for that of the Ad- ministrative Law Judge. MEMBER JENKINS , concurring and dissenting in part: I agree with my colleagues in all respects except for the failure to find, as did the Administrative Law Judge, that the Respondent constructively discharged employee Kilsby. In brief, we agree that by withdraw- ing recognition from Local Union 31 and repudiating its bargaining agreement on April 20, 1974, the Re- spondent created a situation which made it impossible for employees Foster and Sobolik to retain their union membership and remain in the Respondent 's employ. But I find no difference between the Hobson's choice presented these employees and that which confronted Kilsby. The record shows that Kilsby was longstanding union member of some 15 years and, according to his credited testimony, quit his previous employer to join the Respondent in late 1973 because he had known the Respondent's president, Bob Marquis, a former union member, for some time and thought that his new job "would be a good opportunity for me to better myself." Of course, at that time the Respondent was ostensibly adhering to its bargaining agreement . However, Kilsby noticed on numerous occasions that Marquis was working with his tools in open violation of that agree- ment. Kilsby further testified that when these clear infractions were brought to Marquis ' attention he, Marquis, would quit. Moreover, Marquis, troubled by other restrictions imposed by the contract , twice, in December and again in early February, told Kilsby that he was going to "rat," and asked Kilsby what he would do if the Respondent went to an open-shop policy. On each occasion, Kilsby said he would have to resign. Other employees were similarly approached by Mar- quis. Furthermore, as the Administrative Law Judge found, Marquis, as early as January, disclosed his plans to break with the Union and go to an open shop and unlawfully attempted to enlist employees Morrison and Foster in his scheme. For Kilsby, matters came to a head shortly after his second conversation with Marquis about going "rat." Thus, later in February Marquis twice asked Kilsby to work with him after hours in derogation of the con- tract. Kilsby begged off the first time, explaining that he had a prior commitment . However, on the second occasion Kilsby simply replied that he "just couldn't do it," and quit on February 20, explaining that there had been a "buildup of a number of things" and he was "going to get in bad with the Local." My colleagues question neither Kilsby 's reasons for leaving an otherwise desirable job nor the foregoing circumstances which impelled his decision . Nonethe- less, they conclude that his action was "premature" in view of the fact that the Respondent did not formally sever its relations with the Union until April 20. This reasoning is both unpersuasive and unresponsive for it overlooks not only the course of unlawful conduct, beginning in January, of which the April repudiation was only the final act, but also the specific circum- stances which led to Kilsby 's discharge, as set out above. MARQUIS ELEVATOR COMPANY, INC." 463 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE -NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection - To refuse to do any or all of these things. WE WILL NOT refuse to give effect to and to com- ply fully with the Standard Agreement of July 8, 1972, with respect to the employees in the appro- priate unit represented by the International Union of Elevator Constructors, Local Union 31. The appropriate unit is: All elevator constructor mechanics and helpers employed by the Company , excluding office clericals, guards, watchmen and supervisors within the meaning of the Act. WE WILL revoke and cease to give effect to the changes we unilaterally instituted, except in such particulars as Local Union 31 may request that a particular change not be revoked. WE WILL restore and place in effect all terms and conditions of the aforesaid contract. WE WILL make all payments to the pension, wel- fare, and educational funds on behalf of those em- ployees in the unit for whom we previously made contributions, and for whom such contributions would have continued had we fully complied with our contract of July 8, 1972. WE WILL make whole all our employees for wages they would have earned if we had fully complied with our contract of July 8, 1972. WE WILL, upon request, recognize and bargain collectively with Local 31 as the representative of the employees in the aforesaid unit , with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. WE WILL in all respects comply with the con- tract of July 8, 1972, according to its tenor and legal effect. WE WILL offer Donald E . Derr, John B. Loving, Paul Foster, and Roger J. Sobolik their old jobs back, if the same exist, or, if not, substantially equivalent jobs, without prejudice to their se- niority or other rights and privileges and make each of them whole for any wages lost by reason of our failure to comply with our contract of July 8, 1972, with Local Union 31 , together with 6-percent in- terest. WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because they are union members. WE WILL NOT do anything to interfere with our employees in the exercise of the aforementioned rights. WE WILL NOT tell our employees in the aforesaid unit that we have no work for them unless they agree to work under conditions we unilaterally impose, instead of the conditions provided in a union contract by which we are bound. MARQUIS ELEVATOR COMPANY, INC DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard on August 8 and 9, 1974 , in Houston, Texas, pursuant to a charge duly filed and served,' and a complaint issued on June 14, 1974. The complaint presents questions as to whether the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein called Act). In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the trial all parties were represented by counsel and were given full opportunity to examine and cross -examine witnesses, and to file briefs . A motion to dismiss, made by the Respondent at the close of the trial, is disposed of as appears hereinafter in this Decision . On September 3, 1974, briefs were received from all parties. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent is a Texas corporation with its principal office and place of business at Houston, Texas. At all times material herein, it has been engaged in elevator construction and maintenance . During its fiscal year preceding issuance of the complaint, the Respondent purchased goods and materi- als valued in excess of $50,000 from points outside of Texas and during the same period it purchased goods and materials valued in excess of $50,000 from firms which in turn pur- chased such goods and materials from points located outside the State of Texas. Upon the foregoing facts, which the Re- spondent concedes, I find that Marquis Elevator Company, Inc., is engaged in commerce within the meaning of the Act. Siemons Mailing Service, 122 NLRB 81, 84-86 (1958). I The charge was filed on April 29, 1974 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED International Union of Elevator Constructors, Local Union 31 (herein Union, or Local 31), is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A."Background Bob G. Marquis is the president and principal owner of the Company. His wife, Gerry F. Marquis, is the vice president. President Marquis was a member of Local 31 from June 1955 until September 1968, when he established the Respondent Company and went into business for himself. He thereupon took out a nonworking card and withdrew from Local 31. He testified that shortly thereafter he signed a collective-bargain- ing agreement with the Union, wherein the latter was recog- nized as the exclusive representative of all the Respondent's elevator constructor mechanics and helpers. For some time the industrywide representative for the elevator manufacturers was the National Elevator Manufac- turing Industry, Inc. (herein NEMI). Sometime before 1972 the NEMI was succeeded by the National Elevator Industry, Inc. (herein NEII). In 1967, NEMI signed a nationwide con- tract (herein known as a standard agreement) with Local 31 which was to run until March 23, 1972. The Respondent was not a member of the NEMI, but in the fall of 1968, and at the time he organized the Company, Marquis signed what was known as an interim agreement whereby the Respondent, as an independent, adopted the terms of, the industrywide contract which the NEMI had negotiated the preceding year. On April 4, 1972, Marquis and Local 31 signed another interim agreement whereby they agreed to continue in effect the terms and conditions of the 1967-72 standard agreement. The interim agreement provided that it would terminate as of the time the then NEII and the Union entered into a new standard agreement. B. The Facts The NEII and the Union signed a new contract on July 8, 1972, to be effective until July 8, 1977. For reasons unex- plained by the record, Marquis and the Union never signed an instrument formally adopting for themselves the new con- tract for the industry, as they had in prior years. Neverthe- less, Marquis testified at the hearing that in the period from July 1972 to April 1974, the Company observed the terms and conditions of the new standard agreement "as close as possible." According to Marquis, "I had every intention of keeping our relations with the Union good and [to] work under the standard agreement."' The standard agreement required that each month the em- ployer make contributions to various joint trust funds estab- lished by the contract. These included contributions to a welfare plan,' a pension plan, and an educational fund. The contract 'required the employer to make monthly contribu- tions to each of the plans, the amount to be based on the number' of hours worked that month by all elevator mechaii- 2 The quotations in this paragraph are from Marquis' testimony. 3 This provided life insurance, sickness and accident benefits, and hospi- talization insurance ics and helpers in its employ. The contract further required that the employer withhold a fixed amount from the pay of each of his employees and that the total be forwarded to the trustee at the end of each month. Finally, the contract pro- vided that the employer alone make contributions to the educational fund on the basis of the number of hours worked by its elevator mechanics and helpers during the preceding month. Each month from 1972 to and including April 1974, and in strict conformity with the standard agreement, the Company regularly submitted its share of the prescribed amounts for the foregoing plans, as well as the amounts it withheld from the wages of its employees, to the First Penn- sylvania Bank, Philadelphia, Pennsylvania, administrator of the funds. Likewise during the same period and until the latter part of April 1974 the Company paid its employees pursuant to the wage scale set forth in the contract. Marquis testified that from March 1972 and until April 20, 1974, he was in frequent contact with representatives of Local 31, just as he had been at all times previous thereto. These representatives included Jack Seibert, business manager for the Union, and J. D. Peoples, regional director and vice president of the International Union, as well as those who maintained the Union's hiring hall. According to Marquis, from the time he started in business for himself in 1968 and until April 20, 1974, he used union personnel exclusively and secured all of his personnel through the union hiring hall. In conformity with the Union and industry practice, Marquis had a wall plaque at his office that the Union had supplied and which signified that he was a union employer and ad- hered to the terms of the industrywide agreement. He re- ceived it initially in 1968 when he signed his first agreement with the Union. On April 20, 1974, Marquis had a telephone conversation with Peoples in which he explained at great length the many problems he had had with the Union and with Business Manager Seibert. Peoples credibly testified that on this occasion Marquis told him that he had had enough of working with Local 31, that thereafter he was going to work nonunion and that he would mail the "charter"' back to the Union. Marquis denied that he told Peoples that he was going to go nonunion. On the other hand, Marquis acknowl- edged that during the course of their discussion Peoples asked him, "You don't want to work under the standard agree- ment?" and that he responded, "Exactly." Marquis also conceded that he told Peoples at this time that he would return the "charter," or wall plaque, to the Union. Subsequent to April 20, 1974, the Respondent made no effort to adhere to the provisions of the standard agreement. It discontinued making payments to any of the employee benefit plans established by that contract and thereafter the Respondent set its own wage rates and terms and conditions of employment. The standard agreement, in effect from 1972 to 1977, had numerous rules on work jurisdiction. These were designed to protect the work of employees in the unit and forbade, inter alia, the employer from performing any unit work himself. Nevertheless, on several occasions during the period 1973 to 1974, Marquis engaged in this practice. When this was re- ported to the Union by the employees, Business Agent Seibert charged Marquis with having violated the contract and in- 4 The term in quotation is from Peoples' testimony MARQUIS ELEVATOR COMPANY, INC. listed that, pursuant to the agreement, those employees who might have done the work would have to be paid for the amount of time they would have spent in performing the same job. When confronted with the Union's allegations that he had engaged in such violations of the standard agreement, Marquis acquiesced and paid the penalty which the Union imposed for his alleged transgression of the collective-bar- gaming agreement. The last of these instances, involving em- ployees John Loving and Donald Derr, occurred in March 1974. It appears that from July 1972 until April 1974 the Re- spondent continued to recognize the Union as the representa- tive of its employees and to bargain with it about their griev- ances and complaints in the same fashion as it had done during the years prior to 1972 Not only did the Respondent secure all of its personnel through the union hiring hall, Marquis consistently required all its employees to be mem- bers of the Union in good standing. In the summer of 1973 Marquis wanted to employ Ernest E. Morrison, a mechanic whom he had known a long time and whom he knew to be a skilled worker. Morrison, however, had had difficulties with the Union because he had worked during a strike and as a result had been fined $2,000 by Local 31. Marquis cau- tioned him that before starting to work he would have to be cleared by the Union. Marquis testified that he talked with Seibert himself before hiring Morrison in order to be sure that Morrison was "clear"5 and could get a card. Marquis testi- fied that from 1972 to April 20, 1974, he continued to have contact with Seibert in his official capacity as business manager of Local 31, through telephone calls and otherwise.' Marquis further testified, however, that by April 1974 his relations with Seibert deteriorated to the point where "Our conversations led almost to fist fights."7 According to Marquis, because of the difficulties he had in exchanging views with Seibert, on April 20 he telephoned J. D. Peoples, vice president of the International Union, to secure his assist- ance. Marquis went on to testify that this occasion was "not the first time I have asked for his [Peoples'] assistance."8 At this time, Peoples declined to become embroiled in the dis- pute and told Marquis that he felt the Company's problems with Seibert should be settled at the local union level rather than by getting the International Union involved. As found earlier, at that point Marquis thereupon announced to Peo- ples that the Company henceforth would operate a nonunion shop and that he would return the Union's "charter." 5 The quotation is from Marquis' testimony. 6 As to whether, during that period, he was in contact with the business agent via the telephone, in response to the following question, Marquis gave the answer which appears below Q. Did you have telephone calls') A Right, I did. He was well aware that. . we had plenty of work, and I think everyone in the Local, especially Jack [Seibert], knew that we needed men with more experience to help us out. So, I am sure there were several occasions when we talked about this. r The quotation is from Marquis' testimony. 8 The quotations in this paragraph are from Marquis' testimony 465 C. The Alleged Violations of Section 8(a)(5); Findings and Conclusions in Connection Therewith 1. The appropriate unit The original standard agreement, which covered the period from 1968 to 1972, established a unit made up of the Respon- dent's elevator constructor mechanics and helpers. The standard agreement for the period from 1972 to 1977 con- tained this same unit description. This grouping defines an homogenous unit of craft employees. Consequently, it is now found that all elevator constructor mechanics and helpers employed by the Respondent, excluding office clericals, guards, watchmen and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 2. The majority issue Marquis testified that from 1972 to April 1974 he used union personnel exclusively, as he had in all prior years that he had been in business. From January 1 to April 20, 1974, the Respondent had a total of 10 employees engaged at one time or another, the number at work on any given day vary- ing from 3 to 5. The entire complement on the Respondent's work force during this period was made up of employees James A. Beard, Jr., Donald E. Derr, Paul Foster, Paul W. Kilsby, John B. Loving, Leonard L. McKee, Ernest E. Morri- son, Albert W. Stubblefield, Jr., Roger J. Sobolik, and Larry D. Wakefield.' Bill Baichtal, a member of the executive board of Local 31, testified, credibly and without contradic- tion, that all of the foregoing were union members in good standing at that time. In the light of the foregoing facts, it is now found that on April 20, 1974, and at all times material, the Union had a majority in the appropriate unit. 3. The contract issue The Respondent contends that subsequent to the expira- tion of the interim agreement on July 8, 1972, it was under no binding contractual obligation to the Union. Nevertheless, it is evident that until April 20, 1974, the Respondent con- tinued to recognize .the Union as the representative of its employees and to bargain with Business Manager Seibert and Vice President Peoples. Further, although the parties did not execute any document that would constitute a formal adop- tion of the new standard agreement it is apparent that the parties' course of conduct from July 1972 and until April 20, 1974, constituted an adoption of that contract. Throughout the period in question, the Respondent Contributed to the trust funds established by the standard agreement. It adhered to the wage provisions and to all other terms and conditions of that agreement. When Marquis violated the contract by working with tools himself, he paid the penalty assessed against him by the Union for this breach. Until April 20, 1974, and at all 'times prior thereto, the Respondent con- tinued to hire all its personnel through the Union, it discussed grievances with Business Manager Seibert and International 9 This finding is based upon the monthly reports which the Respondent submitted to the' First Pennsylvania Bank for the period from January through April 1974, as well as the testimony of the employees themselves. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vice President Peoples, and, according to Marquis, during that period' he never refused to discuss complaints or other matters with the Union. Notwithstanding the present conten- tion of the Respondent, maintained at the trial and in its brief, that in April 1974 no contract was in existence, it is evident that on April 20 Marquis himself felt that the Company was then bound by the standard agreement. There is no other explanation for his conduct on that date when he telephoned Peoples, the Union's International Representative, to tell him that he was severing all relations with the Union, that hence- forward he was going to work as a nonunion employer and that he would return to the Union its wall plaque which he had had since 1968. The Board has held, in deciding whether an employer and a union have agreed upon a contract, that it is not bound by the technical rules of contract law. Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (C.A. 9, 1964). In John Wiley & Sons v. Livingston, 376 U.S. 543, 550 (1964), the Supreme Court held that a collective-bargaining agreement is not governed by the same common law concepts which govern private contracts, nor is it an ordinary agreement comparable to one for the purchase of goods and services. Cf. Operating Engi- neers v. Flair Builders, Inc., 406 U.S. 487 (1972). Here, as in Manor Research, Inc., 165 NLRB 909 (1967), the continued utilization of the welfare, pension, and educational funds, the use of the Union as the source of employees and for the settlement of grievances, "demonstrate the existence of a con- tinuing relationship between the Respondent and the Union." In Marquis' own words, he adhered to the standard agree- ment for 1972 to 1977 "as close as possible." Of the period subsequent to the effective date of the foregoing contract Marquis further testified, "I had every intention of keeping our relations with the Union good and [to] work under the standard agreement." In pursuing this policy, Marquis con- tributed to the trust funds established by that contract and paid the wage scale established therein. At the same time he utilized the provisions of the agreement in securing new em- ployees through the union hall. On the basis of the above findings, it is now found that by this course of conduct the Respondent adopted the current standard agreement and until April 20, 1974, abided by it, except for those occasions when Marquis worked with his tools and was charged by the Union with a breach of its terms. Even then, however, Marquis acquiesed in the penalty which the Union imposed on him for violating the provisions of that contract. As the result of its adoption of the current standard agreement and the fact that at no time prior to April 20, 1974, did the Respondent give the Union any notice that it did not consider itself bound by that agreement, the Re- spondent is estopped from now making a claim to the con- trary. Homer Gale and Howard Gale, co-partners, d/b/a American Sign & Neon Company, 176 NLRB 1049, 1051-52 (1969). On the facts present here, Marquis was bound to the terms of the current standard agreement. John- son Electric Company, Inc., 196 NLRB 637, 643-644 (1972), enfd. 472 F.2d 161 (C.A. 6, 1973); John E. Holkko, d/b/a Lifetime Shingle Company, 203 NLRB 688 (1972). More- over, under Section 8(d) of the Act he had no right to repudi- ate it without notice as he sought to do on April -.20, 1974.10 By his declaration to Peoples, on the latter date, to the effect that the Respondent was going to go nonunion and by his declaration to the union representative that he was sending the Union's charter, back to it, Marquis withdrew the recognition that, until then, and pursuant to the Act, the Respondent had accorded the employees' bargaining agent. By Marquis' action then, and by the Respondent's continuing refusal thereafter to recognize and bargain with the Union, the Respondent violated, and is continuing to violate, Section 8(a)(5) and (1). Moreover, by its action in rescinding the standard agreement, discontinuing all payments to the em- ployee benefit plans provided by that contract, and thereafter unilaterally establishing its own wage rates and other terms and conditions of employment, the Respondent further vi- olated Section 8(a)(5) and (1) of the Act. Lozano Enterprises v. N.L.R.B., supra at 818-819; Lifetime-Shingle Company, supra; Johnson Electric Company, Inc., supra. D. The Alleged Individual Bargaining by Marquis; Findings and Conclusions in Connection Therewith There is'substantial evidence in the record that for a period of several months prior to April 1974, Marquis engaged in numerous conversations with his employees on the subject of the Respondent's becoming a nonunion employer. Several employees credibly testified on this matter. Marquis did not deny their testimony when, he subsequently took the stand. Employee Ernest E. Morrison credibly testified as follows: On two occasions during the latter part of 1973 and while he was at work in the shop, Marquis asked'him if he thought the Company "could make it as a nonunion" employer. On the latter occasion, which took place in November, Marquis asked Morrison if he would go with him when this change was made. Morrison declined to encourage these plans with the statement "I had money invested in my [union] card [and] I didn't want to give it up." In January 1974 Marquis again brought up the subject and in this instance he proposed to Morrison that the latter head a nonunion branch of the Company so that Marquis could more easily compete with the open shop contractors. As Marquis described it to Morri- son, the existing business and the proposed open shop'branch would "in effect, beset up on paper as two separate compa- 10 Sec. 8 (d) provides, in relevant part. . where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain col- lectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification, (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications, (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simul- taneously therewith notifies any State or Territorial agency estab- fished to mediate and conciliate disputes within the State or Territory) where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to sti ike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later MARQUIS ELEVATOR-COMPANY, INC. nies." The next month, however, in another conversation with Morrison, Marquis told him that he had abandoned all plans for establishing a separate nonunion branch of the Re- spondent and that instead he had decided to go nonunion all the way with the existing Company . M[orrison again mani- fested his opposition to being a part of such plans because of his longstanding connections with- Local 31 and what he described as the amount he had "invested" in his union card." Employee Paul Foster testified credibly and without con- tradiction about the following exchange with Marquis: On about April 16, Marquis visited him at the Veterans Hospital jobsite. While there, Foster questioned him about rumors then current that the Company was going "nonunion ." With- out answering directly, Marquis asked whether Foster would favor such a move. When the employee replied in the nega- tive, Marquis told Foster that if the Company went nonunion he could have all the privileges he wanted. "You can hire the attorney of your choice and draw up all of the papers neces- sary. I will give you pension benefits , vacation, everything you've got with the Union, life insurance, plus if you ever want to leave me and go back [with] the Union I will pay any fines [imposed by the Union]." Foster at first asked for time to think about the matter, but that evening when he returned to the shop he told Marquis that he could not accept his offer. Foster further told him that because of the way the Company was breaking the union rules and planning to go nonunion he would quit the next day. This would have been April 17. On that day, Marquis telephoned Foster to tell him that he had decided to stay with the Union . Foster assured him that in that event he would continue working. In fact, Foster worked until the end of that week . Over the weekend, however, Mar- quis telephoned him again , this time to tell Foster that he had, indeed, severed relations with Local 31. Foster then told him, "in that case, I will be in Monday and turn in my tools." The following morning Foster returned to the shop solely for that purpose and, after checking in his tools, left. 12 Other employees testified to similar conversations with Marquis during the last 4 months before April 20 , 1974, when the Respondent's president announced to the Union that the Company was severing all relations with Local 31. Their testimony was credible and undenied . According to employee Paul W. Kilsby, in the latter part of December 1973 and about the first of February 1974 he had conversations with Marquis in which the Respondent's president stated that it appeared that the Company would have to go nonunion, or "rat," a colloquialism with the same intendment. In each instance Kilsby told him that in such an event he would have to quit because working at a nonunion shop would cause the loss of all his union benefits. Employee Donald E. Derr testi- fied that on two occasions, once on about January 24, 1974, and again in mid-February, Marquis questioned him as to whether he would go nonunion if the Company did so. In each instance, Derr replied in the negative . Employee Roger Sobolik testified that during the fall of 1973, while on a job in Orange, Texas, Marquis questioned him as to whether he 11 The quotations in this paragraph are from Morrison's testimony which was credible and was neither contradicted nor denied by any witness for the Respondent. 12 The quotations in this paragraph are from the testimony of Foster which was credible, undenied, and uncontradicted 467 would be in favor of going nonunion. Sobolik replied in the negative with the explanation that he had been with the Union too long to give up his card. The General Counsel alleged that the Respondent, in dero- gation of the Union as the employees' bargaining agent, had engaged in individual bargaining with both Morrison and Foster. This allegation was amply supported by the evidence as to Marquis' activities that is set forth above. By proposing to Morrison that the employee could help him establish a nonunion branch of the Company and by promising Foster that if he accepted Marquis' plan to have an open shop Foster would have better wages and more fringe benefits than the Union could assure him, Marquis caused the Respondent to engage in further violations of Section 8(a)(5) and (1). Chase Manufacturing, Inc., 200 NLRB 886 (1972).13 E. The Alleged Constructive Discharges; Findings and - Conclusions with Respect Thereto 1. Foster, Sobolik, and Kilsby Earlier herein it was found that when employee Paul Fos- ter learned from Marquis on-the weekend of April20 that the Respondent had withdrawn recognition of Local 31 and that henceforth the Company would operate as an open shop, Foster told Marquis that he would quit and would report the following Monday to check in his tools. On the morning of April 22 Foster reported to the shop for that purpose and left the Respondent's employ. Employee Roger Sobolik was hospitalized during the week of April 15 because of a diabetic condition. On the morning of April 22, a Monday, and while still in the hospital, Sobolik telephoned Marquis to inquire as to whether the Company had gone nonunion. When he found from Marquis that had, in fact, occurred, Sobolik asked that Marquis prepare his vacation pay and promised that as soon as released from the hospital he would return the company tools which he still had in his possession. Two days later, and upon his discharge from the hospital, he reported to the company shop and turned in his tools. Sobolik testified that he took this action and quit when Marquis told him that the Respondent had withdrawn recognition from the Union and planned to `do business as an open shop. Employee Paul W. Kilsby was a longtime union member.14 He was in the Respondent's employ from November 1973 until February 20. During that time, as found above, Marquis, on two occasions, told Kilsby that it looked as if the Company would have to go nonunion. The last of these instances occurred early in February. Kilsby credibly testified that during the latter 2 months that he was with the Respondent, Marquis engaged in numerous viola- 13 Marquis' strategem was successful as to only one employee, Leonard McKee. The latter, a witness for the Respondent, testified that during the week in April, when Marquis talked with Peoples, Marquis told him that he might have to go nonunion and that he would like to have McKee stay with him. According to McKee, when he questioned Marquis as to whether he would continue to pay the union scale of wages, Marquis promised that he would. McKee testified that some time later, and after being off the job for several weeks, he returned to work for the Respondent and found that the fringe benefits for him then were better than those which he had while the Respondent was adhering to the standard agreement. 14 He credibly testified that he had been a member since about 1959. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the standard agreement. Most of these involved in- stances when Marquis joined the men in working with tools, an open violation of the union contract. In the first part of February, as found earlier herein, Marquis questioned Kilsby as to what he would do if the Company went to an open shop policy. Kilsby replied that if such a development arose he would have to quit because he could not retain his union benefits if he worked in a nonunion shop. Kilsby testified that he quit on February 20, because of Marquis' continuing viola- tions of the standard agreement which caused him to fear that he "was going to get in bad with the Local."" The General Counsel contends that Foster, Sobolik, and Kilsby were forced to quit because of Marquis' antiunion policies and that, as a result, their terminations were con- structive discharges and violative of the Act. Foster and Sobolik, who quit when the Respondent withdrew recogni- tion of the Union and repudiated the standard agreement, are clearly in that category. The actions and conduct of the Re- spondent, in violation of the Respondent's obligations under Section 8(a)(5) and (1) of the Act, created a situation which made it impossible for them to continue in the Company's employ and retain their union membership. Accordingly, it is now found that the Respondent was responsible for their terminations and that, in so doing, the Respondent violated Section 8(a)(3) of the Act. Kamminga & Roodvoets, Inc., 198 NLRB 208, 209-211 (1972); Barwise Sheet Metal Co., Inc., et at, 199 NLRB 372 (1972); Johnson Electric Company, Inc., supra; Lifetime Shingle Company, supra; American Enter- prises, Inc., 191 NLRB 866, 868-869 (1971). It is also found that Marquis' course of conduct in the months prior to his total repudiation of the standard agreement and the Respon- dent's withdrawal of recognition of Local 31 caused Kilsby, a union member of many years, to quit the Company's em- ploy because he feared that his continued employment with Marquis would jeopardize his standing with the Union. Consequently, by such conduct as to Kilsby the Respondent further violated Section 8(a)(3). 2. Loving and Derr John B. Loving was hired as a temporary mechanic in mid-February and Donald E. Derr was hired as a probation- ary helper in January. On March 25, Marquis told them that they were no longer needed. For some while prior thereto they had been working together on the installation of an elevator at what was known as the "5959" jobsite. As found earlier, on two different occasions, once in January and once in February, Marquis questioned Derr as to whether he would stay with the Company if it went nonunion and in each instance Derr's response was in the negative. On the after- noon of Friday, March 15, Loving and Derr left work at the end of their shift and after Marquis assured them that if he needed them over the weekend he would telephone. Marquis never did so. When they returned on the following Monday morning, however, they discovered that a substantial amount of work had been done in their absence. When Marquis ar- rived, they protested about not having been called in to per- form the work which had been performed on the job on Saturday and Sunday. They further told him that they would 15 The quotation is from Kilsby's credible, undenied testimony. do nothing further until the matter was straightened out, and then left the scene to telephone Seibert, the Union's business manager. As the result of Seibert's intervention, Marquis paid both Loving-and Derr the wages that they would have earned over the weekend if he had called on them rather than doing the work himself. Marquis testified that before handing each one his check he questioned Loving and then Derr as to whether the individual felt that he was entitled to payment, and that both of them answered in the affirmative. Marquis then-handed each a check for the work in question, albeit reluctantly. Marquis conceded that early the next week he told Loving not to come back to work because he had nothing for him to do. Loving, however, credibly testified that in the same conversation, Marquis told him that employee Leonard McKee was going to take over the job. Since Loving, the mechanic, was displaced, there was then no further work for Derr, his helper. Neither Loving nor Derr received any other work after March 25. The General Counsel and the Charging Party contend that the Respondent's conduct in this regard constituted a con- structive discharge of Loving and Derr. This is denied by the Respondent, according to whom these employees quit rather than stay on the job and finish it on the morning of March 25. Loving and Derr testified that on Monday morning, March 25, they had been working a 12-hour night shift for the preceding 7 or 8 days. According to Loving, after they had been on the job over 12 hours and at the close of the shift early on the morning of March 25, he telephoned Marquis to in- form him as to what remained to be done. Loving testified that Marquis told him at this time that he and Derr could go home because employee McKee was coming in to take over the job. According to Loving, Marquis told him to telephone the next day as to further work and when he did so on March 26, Marquis told him that there was nothing available for him or. Derr. Neither was ever recalled to work for the Respond- ent. Marquis testified that on the morning in question he was dissatisfied with the work of Loving and Derr in that they had not completed the job to the point where the elevator could be used by the tenants of the building. According to Marquis, when Loving telephoned him at about 7 a.m. on March 25, the latter told him that the elevator would not operate, but that he and Derr were tired and were going home. Marquis made no reference to the testimony of Loving to the effect that during this conversation Marquis assured him that he and Derr could go home because employee McKee was then coming on duty to take over the job. Nor did Marquis con- tradict Loving's testimony that when he telephoned Marquis the following day, the latter told him that neither he, nor his helper Derr, was needed any longer. Loving and Derr were credible in their testimony as to the events which occurred on the last day of their employment. In view of the foregoing conclusions and the lack of any specific response by Marquis as to their testimony when he was on the stand, it is my conclusion that Marquis did not criticize them on the morning in question nor ask them to remain on the job any longer that day since they already had completed 12 hours on duty. Rather, it is apparent from Loving's credible testimony that on that occasion Marquis told Loving that both Loving and Derr could go off duty at MARQUIS ELEVATOR COMPANY, INC. that time and that Leonard McKee would be responsible for getting the elevator operational that morning. It is my further conclusion that Marquis' purported objection to -their work, voiced at the hearing, was an afterthought. Finally, in view of (1) Marquis' expressed determination to go nonunion; (2) his having questioned Derr as to whether he would accept work under such an arrangement and the negative response of the latter; (3) the incident on March 15 which culminated in Business Manager Seibert requesting that Marquis pay Loving and Derr for work they would have performed that weekend if Marquis had adhered to the terms of the collec- tive-bargaining contract; (4) Marquis' bitterness toward Sei- bert as expressed at the hearing when he stated that he could not talk with the union official, because "our conversations led almost to fist fights"; and (5) Marquis' course of conduct which, as found above, resulted in the Respondent's repudia- tion of the contract and withdrawal of recognition for the Union on April 20, it is my conclusion that Marquis' explana- tion as to why he did not recall Loving and Derr was a pretext and that the real reason was his antipathy for Local 31 and for the employees having insisted during the preceding week that Marquis adhere to the terms of the collective-bargaining agreement. Accordingly, it is now found, in the light of these conclusions, that Loving and Derr were constructively dis- charged on March 25 when Marquis did not recall them and that by this action the Respondent violated Section 8(a)(3). 3. Morrison On February 28, 1974, employee Ernest E. Morrison gave notice to Marquis that he had secured another job and that he would terminate his employment with the Respondent that afternoon. Morrison had been a union member for many years. The General Counsel and the Charging Party contend that because of Morrison's prior experience with the Union, where, as related earlier, subsequent to one lapse in fealty he was fined $2,000, the employee was especially vulnerable to any pressures by the Employer which would bring on further conflicts with Local 31, and that, on the facts present here, Morrison's termination must be considered a constructive discharge. As found above, Marquis made several approaches to Morrison to induce him to join the Respondent in operat- ing a nonunion shop. On the other hand, at the trial, when the General Counsel questioned Morrison as to the reasons he gave the Employer for quitting, Morrison testified that although the general job conditions were, in part, responsible, his primary reason for leaving was the fact that he had been offered a job by another employer on which he would earn more money. On the basis of this testimony, it is my conclu- sion that the General Counsel has failed to prove by a pre- ponderance of the evidence that Morrison was forced to quit in a constructive discharge. Accordingly, this allegation of the complaint must be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 469 3. All elevator constructor mechanics and helpers em- ployed by the Respondent, excluding office clericals, guards, watchmen and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At least since on or about April 4, 1972, the Union has been the collective-bargaining representative of the em- ployees in the aforementioned appropriate unit, and by virtue of Section 9(a) of the Act has been, and is, the exclusive representative of all employees in said unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. Commencing on or about April 4, 1972, and continuing to date, the Union requested and continues to request Re- spondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment as the exclusive collective-bargaining representative of all the employees in the aforesaid appropriate unit. 6. On or about April 4, 1972, and continuing to on or about April 20, 1974, the Respondent recognized and bargained collectively with the Union as the exclusive collective-bar- gaining representative of the employees in the appropriate unit. 7. Since January 1974, the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union, by bargaining directly and individually with employees in the unit, and, on April 20, 1974, by withdrawing recognition from the Union and thereafter changing wage rates, employee benefits, and other terms and conditions of employment. 8. By constructively discharging Paul W. Kilsby, Donald E. Derr, John B. Loving, Paul Foster, and Roger J. Sobolik, the Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(3) and (1) of the Act. 9. By requiring its employees to elect between foregoing their rights under the union contract or foregoing employ- ment with the Respondent, the Respondent coerced and re- strained said employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within they meaning of Section 2(6) and (7) of the Act. 11. The Respondent did not constructively discharge Er- nest E. Morrison. THE REMEDY Having found that the Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action set forth below, designed and found necessary to effectuate the policies of the Act. The Respondent will be required to cease and desist from further violations, to revoke its unilateral changes, and to give retroactive effect to all the terms and conditions of the 1972 to 1977 agreement from the date of the Respondent's rejec- tion of said agreement on April 20, 1974, and to make whole its employees for any loss of wages or other benefits they may 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have suffered as a result of the Respondent's unlawful refusal to bargain. The Respondent will also be ordered to offer reinstatement to Kilsby, Derr, Loving, Foster, and Sobolik and to make them whole for wages and other benefits lost. The backpay herein recommended shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended that Respondent be re- quired to preserve, and, upon request, make available to au- thorized agents of the Board, all records necessary or useful in determining compliance with this Order, or in computing the amount of backpay due. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended- ORDER 16 Marquis Elevator Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to give full effect to, and to comply fully with the standard agreement between the National Elevator Industry, Inc., and Local 31, executed on July 8, 1972, and effective until July 8, 1977, according to its tenor and effect, with respect to the employees in the unit set forth 'above. (b) Failing or refusing, on request, to bargain collectively with the aforesaid labor organization as the exclusive collec- tive-bargaining representative of the employees in the afore- said unit. (c) Unilaterally changing the wages and other terms and conditions of employment of the employees in the aforesaid unit without prior consultation with the aforesaid labor or- ganization as the exclusive collective-bargaining representa- tive of said employees. (d) Bargaining directly and individually with any employee in the aforesaid unit. (e) Coercing or restraining employees in the aforesaid unit by telling them that they could work for the Respondent only if they would agree to work under the terms and conditions of employment unilaterally established by the Respondent, rather than under the terms and conditions established by the aforesaid contract, or by any other statement of similar pur- port. (f) Unlawfully terminating employees or otherwise unlaw- fully discriminating in regard to their wages and terms and conditions of employment. 16 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order and all objections thereto shall be deemed waived for all purposes. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their 'own choosing, and to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Upon request recognize and bargain collectively with the aforesaid labor organization as the exclusive collective- bargaining representative of the employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. (b) Restore and place in effect all terms and conditions of employment provided by the aforesaid contract of July 8, 1972, which were unilaterally changed by the Respondent. (c) Make such pension, welfare, and educational payments on behalf of those employees in the unit for whom such contributions were previously made and would have con- tinued to be made had the Respondent not ceased to comply with the aforesaid contract. _ (d) Offer Paul W. Kilsby, Donald E. Derr, John B. Loving, Paul Foster, and Roger J. Sobolik full and unconditional reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of wages suffered by reason of the Respondent's conduct, as provided in the section hereof entitled "The Remedy." (e) Preserve and, upon request, make available to author- ized agents of the Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (t) Post at its headquarters in Houston, Texas, copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 17 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "