Wayne Electric Inc.

WAYNE ELECTRIC INC. 409 Wayne Electric Inc.; and Electric Installation and Services and Local Union No. 441 ,- International Brotherhood of Electrical Workers, AFL-CIO. Case 21-CA-14099 October 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 29, 1976, Administrative Law Judge Rus- sell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party, herein also called Local 441, filed limited exceptions and a supporting brief; and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. The Respondent also filed an answering brief to the Charging Party's limited exceptions and brief, and the General Counsel filed a brief in oppo- sition to Respondent's answering brief to the Charg- ing Party's limited exceptions.' 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 2 of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order.' i The International Brotherhood of Electrical Workers, AFL-CIO, made a request to file a brief as amicus curiae and the Respondent filed a state- ment in opposition to the request of the International to file as amicus curiae The International's request was granted and its brief, as well as Respondent's statement in opposition to the request , has been duly consid- ered. 2 Member Jenkins agrees with his colleagues that sec . 3.19 of the NECA- Local 441 agreement is not a basis for denying the Union the remedial procedures of the Board because that section allegedly encourages unlawful age, discrmunation. On its face, this provision is as likely to have resulted from an effort to correct age discrimination as to commit it. In the absence of evidence show- ing improper application or effect , Member Jenkins finds nothing unlawful in this provision . Cf Congoleum Industries, Inc, 197 NLRB 534, 539 (1972); Farah Manufacturing Company, 187 NLRB 601, 602 (1970), Lexington Metal Products Company, Division of Ferro Manufacturing Corporation, 166 NLRB 878, 880 (1967). , Chairman Murphy agrees with the Administrative Law Judge that Re- spondent's affirmative defense based on Local 441 's alleged age discnmma- tion is without merit. In the Chairman's view, the legality of sec. 3 19 of the NECA-Local 441 collective-bargaining agreement must be decided under the Age Discrimination in Employment Act of 1967, 29 U S.C. 621, et seq, enforcement of which is left to the wage-hour administrator and is not within the Baord's authority to determine. - 3 Local 441 has excepted to the Administrative Law Judge 's failure to recommend that Respondent be ordered to make whole all employees who were dewed an opportunity to work for Respondent because of the latter's The Respondent argues in its exceptions to the Ad- ministrative Law Judge's Decision that there is no showing that Respondent was part of the multiem- ployer unit and further contends that Local 441 at relevant times herein did not represent a majority of the employees working for Respondent. This argu- ment is at total variance with the undisputed facts. The Respondent signed letters of assent which au- thorized the Orange County Chapter, National Elec- trical Contractors Association, Inc., herein called NECA, to be "its collective bargaining representative for all matters contained in or pertaining to the cur- rent" collective-bargaining contract between NECA and Local 441. Such authorization was to remain in effect unless the written notice was given by Respon- dent at least 150 days prior to the anniversary date of the contract. The Board has held that by signing such letters of assent an employer is bound by the mul- tiemployer contract and becomes a member of the multiemployer bargaining group 4 It is undisputed that the Respondent signed the above letters of assent on three occasions, August 1972, April 1974, and January 1975, and, at least un- til or about February 1975, adhered to the terms of the multiemployer contracts, utilized employees re- ferred to it from the hiring hall administered by Lo- cal 441, and paid assessments to the various employ- ee funds set up for the multiemployer group employees as required under the contract. The Re- spondent at no time gave any notice that it intended to withdraw its authorization to permit NECA to be its bargaining agent. While it is true that the NECA-Local 441 contracts do not contain a recognition clause and do not de- fine the appropriate unit, it is clear that Local 441 has for many years been recognized as the bargain- ing agent for the employees in the multiemployer group and that the majority status of Local 441 has never been questioned. The Administrative Law Judge found, and we agree, that the employees cov- ered by the NECA-Local 441 contract, including em- ployees of employer-members of NECA and signato- ries of letters of assent, constituted the appropriate unit and that Local 441 was the exclusive bargaining representative for such employees. The record establishes that all employers in the multiemployer group are required to, and do, use the hiring hall administered by the Union and employees refusal to abide by its collective-bargaining agreement with Local 441. We find it unnecessary to modify the recommended Order as requested, inas- much as we find that, if there are employees who would have been referred but for Respondent's misconduct the make-whole order herein encompasses them, and that a determination as to whether or not there are such employ- ees is best left to the compliance stage of this proceeding. 4 See Johnson Electric Company, Inc., and William A Johnson and Albert M Thompson d/b/a Johnson Electric Company, 196 NLRB 637 (1972); Cen- tral New Mexico Chapter, NECA, 152 NLRB 1604 (1965). 226 NLRB No. 59 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are not necessarily attached to one employer, but may, and do, work for numerous employers within the bargaining group. The employees are covered-by common health, welfare, and pension funds to which the employers make contributions. Furthermore, there is a long history of bargaining on the multiem- ployer basis, the employees work under uniform wage scales and working requirements, and the par- ties have indicated their mutual assent to be bound by the contract resulting from such bargaining. In this circumstance we conclude that the employees covered by the multiemployer bargaining group con- tract have strong community of interests, that the unit was sufficiently defined and mutually assented to, and that there is nothing shown which would ren- der it inherently improper. As noted above, Local 441 has been recognized as the collective-bargaining agent for the employees in the appropriate unit for many years. The Union's majority has never been questioned, and in this rec- ord there has been no evidence presented for over- coming the presumption of continued majority sta- tus. The Respondent has never legally withdrawn from the contractual bargaining group, and, accord- ingly, its contention that Local 441 does not repre- sent a majority of the employees employed by it is irrelevant. As found by the Administrative Law Judge the Respondent is bound by the multiemploy- er collective-bargaining agreement. - ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wayne Electric, Inc., and Electric Installation Services, Anaheim, Califor- nia, their officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Santa Ana, California, on March 9, 10, and 11, 1976.1 The complaint, issued on December 29, is based on an original charge filed on October 24 and a first amended charge filed on December 5 by Local Union No. 441, International Brotherhood of Electrical Workers, AFL-CIO, hereinafter referred to as the Union or as Local 441. The complaint alleges that Wayne Electric, Inc., and ' All dates hereinafter are within 1975 unless stated to be otherwise. Electric Installation and Services, hereinafter collectively referred to as Respondent and individually referred to as Wayne Electric and EIS, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, here- inafter referred to as the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Wayne Electric is, and at all times material herein has been, a California corporation engaged in business as an electrical contractor in the building and construction in- dustry in southern California. EIS is, and at all times material herein has been, a sole proprietorship engaged in business as an electrical contrac- tor in the building and construction industry in southern California. During the past 12-month period Wayne Electric and EIS, in the normal course and conduct of their above-de- scribed business operations, each performed services val- ued in excess of $50,000 for customers located in the State of California, each of whom, during the same period of time, sold and shipped goods, materials, and supplies val- ued in excess of $50,000 directly to customers located out- side the State of California. I find that Respondent Wayne Electric and Respondent EIS are, and at all times material herein have been, em- ployers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the -Act. Since on or before September 3, 1973, Respondent Wayne Electric has delegated authority to Orange County Chapter, National Electrical Contractors Association, Inc., herein called NECA, to represent it for purposes of collec- tive bargaining. NECA is, and at all times material herein has been, an association comprised of various employers engaged in business in Orange County, California, as electrical con- tractors in the building and construction industry, which employer-members have delegated to NECA the authority to represent them for collective-bargaining purposes. The employer-members of NECA, in the aggregate, an- nually purchase and receive goods and materials valued in excess of $50,000 from suppliers located in the State of California, each of whom purchases and receives those same goods and materials directly from suppliers located outside the State of California. I find that NECA is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. WAYNE ELECTRIC INC. 411 II. THE LABOR ORGANIZATION INVOLVED Services.' The registrant is Richard R. Holmes ( Holmes), Local Union No. 441, International Brotherhood of Electrical Workers, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background NECA and the Union are, and at all times material here- in have been, parties to collective-bargaining agreements covering electrical work performed by members of NECA and other contractors who authorize NECA to act as their collective-bargaining agent. A copy of the 1973-75 agree- ment is in evidence as General Counsel's Exhibit 2. A copy of the 1975-77 agreement is in evidence as General Counsel's Exhibit 3. By their terms, the aforesaid agreements apply to all firms who sign letters of assent to be bound thereby. It is not necessary to be a member of NECA in order to sign a letter of assent, nor is it mandatory that every member of NECA become a signatory to the agreement. As of the present date, approximately 388 persons or firms are bound by the current contract, of which about 240 are ac- tive employers in Orange County. Of that 240, approxi- mately 150 are members of NECA and 90 are nonmember- signatories. The collective-bargaining agreement has provisions for an exclusive hiring hall (described below), and those provi- sions regularly are followed and enforced by the Union. The agreement 2 also provides that signatory employers must submit monthly reports 3 and contributions to the Or- ange County Electrical Industry Funds on the account of fringe benefits provided for in the agreement. Wayne Steward (Steward), owner and president of Wayne Electric, signed letters of assent 4 for Wayne Elec- tric on about August 28, 1972, on April 10, 1974, and on January 29, 1975. Pursuant to provisions of the agree- ments, Wayne Electric used the facilities of the Union's hiring hall until the date of his last request for an employee referral, made on March 23, 1975.5 Wayne Electric submit- ted to the hiring hall in 1975, prior to March 3, a total of eight requests for employees. It was stipulated by counsel that, from August 1972 through January 1975, Wayne Electric submitted monthly payroll reports to the Orange County Electrical Industry Funds, as required by the col- lective-bargaining agreement.' EIS is registered in Orange County as doing business under the fictitious name of Electrical Installations and 2 G C. Exh. 24 is a sheet of instructions given to each signatory, explain- ing the reporting procedure. Exh 24 was signed by Wayne Steward on January 29, 1975 3 Reports are submitted on a computer printout format supplied by the Union The reports include computation of contributions for each month 4 G C. Exhs. 4, 5, and 6 5 Robert Anderson, an apprentice, was dispatched to Wayne Electric on March 4 pursuant to this request. 6 G C Exhs 23(a)-(s) consist of Wayne Electric's reports from February 1975-January 1976. who was stipulated by counsel to be vice president and director of Wayne Electric. It also was stipulated by coun- sel that Holmes has a desk and office space at, and that the business address of EIS is the same as, the business address of Wayne Electric. It further was stipulated that, at all times material herein, neither EIS nor Holmes has been issued licenses by the State of California to do business as electrical contractors and that Wayne Steward has been so licensed. EIS never has been a signatory to the NECA-union bar- gaining agreement, nor has it asked the Union for employ- ee referrals, nor submitted monthly reports and contribu- tions to the Union. The exclusive hiring hall system is described in the NECA-union bargaining agreement. Its core provision is: "The Union shall be the sole and exclusive source of refer- ral of applicants for employment." The agreement defines four groups of employees, distinguished -primarily on the basis of experience in the trade. Employers may hire tem- porary employees if the Union is unable to refer requested applicants within 48 hours. Employers may reject any ap- plicant. Hours of work and wages are set forth in other sections of the agreement. - It is not necessary that applicants for work be union members. Applicants report to the hiring hall, where they complete questionnaires 8 related primarily to their work experience. Based on information set forth by the applicant in the questionnaire, he is assigned to a group for which he is qualified. The applicant's name then is placed on the out-of-work registry. Applicants are assigned to jobs in the chronological order that their names appear on the out-of- work registry, unless they are referred pursuant to a name request. Eligibility for referral is based solely on qualifica- tions. Robert Balgenorth is, and at all times relevant herein has been, a business representative for the Union. His duties are to "patrol" the Orange County area to determine whether contract violations,are occurring, to attempt cor- rection of violations, and to organize. Balgenorth first be- came interested in Wayne Electric on February 6, 1975, when he found during investigation what appeared to be a possible contract violation. Because of his concern after finding that possible violation, Balgenorth continued his investigation and confirmed in his mind that violations likely were being committed by Wayne Electric, particular- ly violations of the referral procedure. Balgenorth reported his findings to Walter Johnson (Johnson), business 'manag- er and financial secretary of Local 441. Johnson also is the principal administrative officer for the Local. Balgenorth asked Johnson to arrange a meeting with Steward,', and on March 1 a meeting was held in Johnson's office attended by Johnson, Balgenorth, Steward, and two other persons. The meeting lasted about 4 hours, during which time Steward was told about his apparent violations'of the con- tract. Steward said he did not realize he was in violation and agreed to correct any existing violations. The contract was discussed almost in its entirety, and the union repre- 7 Resp Exhs 1 I and 12 B Unless they have completed questionnaires and have been assigned to a work group in the past 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives explained possibly troublesome sections of the contract. Steward assured Balgenorth and Johnson that thereafter he would pay proper contract wages and comply with the contract. Steward thanked them and said he wished someone had explained the contract to him earlier. The meeting ended on an amicable note. The Union did not request that Steward leave the job he was then on, although that job was included in Balgenorth's investiga- tion.9 On March 3, Johnson filed a grievance against Wayne Electric, pursuant to the procedure established in the col- lective-bargaining agreement. The grievance alleged that Wayne Electric had paid less than contract wages to two employees, and backpay was requested. The grievance was heard by the Labor Management Committee the third Wednesday in March, with Steward present, in accordance with contract procedure. Steward was found to be in viola- tion of the contract.1° After the meeting of March 1, Balgenorth continued his surveillance of Wayne Electric and observed several in- stances wherein he believed Wayne Electric again was in violation of the contract. Those instances are discussed be- low. On a date not definitely established at the hearing, but probably in or about June," EIS was created. Sometime in April an individual (not named) approached John Dus- sard,12 who is a special representative for the International Union of Petroleum and Industrial Workers, AFL-CIO (Petroleum Workers' Union) and secretary-treasurer of its Local No. 9 (sometimes referred to as Local 9), and said the employees of EIS were interested in his union. Dussard gave the individual some authorization cards and thereaf- ter met with employees of EIS. Holmes was at the meeting, and Dussard told him that his presence was highly irregu- lar. The meeting was broken off, and the employees later met with Dussard out of the presence of Holmes. After the meetings, Dussard was given authorization cards signed by EIS employees. Thereafter the International sent a letter dated May 19, 1975, to Holmes, requesting recognition. Holmes replied to the letter on May 30, 1975, and stated, inter alia, "We are interested in obtaining a fair and dust contract with your union . . . . I would like to expedite this agreement as soon as possible." The first negotiation meeting between EIS and Local 9 was held on June 9, with Holmes attending as a representative of EIS. No agreement was reached. A second session was held July 7, attended by Holmes and Steward representing EIS, and Dussard and Carroll Clark representing Local 9. Agreement was reached and on August 6 the agreement was ratified by five employees of EIS. Sometime after August 6, Balgenorth talked with Dussard and told him Local 441 had a contract 9 This paragraph is a summary of the testimony of Balgenorth and John- son. Both were credible witnesses Steward took the stand, but did not deny the testimony, it is, therefore, credited 10 This summary is from Johnson's testimony The testimony was not denied by Steward, who was called by Respondent as a witness Johnson is credited 11 The fictitious name registration is dated June 12. 12 This summary relative to Dussard is based on his credited testimony Steward was a witness but did not testify relative to, or deny, Dussard's testimony. Holmes was not called to testify. with Wayne Electric. About August 13 Balgenorth met with ISussard and another International representative, and as a result of that meeting Local 9 decided to "back off" and cease all activities at EIS until the situation was cleared up. The principal issues are: 1. Whether Wayne Electric at times relevant herein was under contract with Local 441. 2. Whether the creation of EIS was a sham transaction to avoid contractual obligations. Respondent interposed two affirmative defenses: 1. That the charges are time-barred by Section 10(b) of the Act. 2. That the Union practices unlawful discrimination on the basis of age. Respondent also contends that General Counsel is es- topped from proceeding herein, because he entered into an informal settlement agreement with EIS in Case 21-CA- 13899. A. The Contract There is no question about the fact of Steward 's signing three letters of assent for Wayne Electric in 1972, 1974, and 1975. Respondent seeks to avoid the consequences of those signatures by contending that there is no evidence of an "actual intent" of Steward to be part of a multiemployer unit. That argument ignores the,fact of signing. A logical question in the face of such a contention is, what did Stew- ard intend when he signed the letters of assent? Clearly he wanted to have access to the Union's hiring hall and to the Union's label. Steward testified relative to his most recent signature: At the time I signed this thing we were pretty busy with a lot of jobs going at this particular time, and I had a lot of papers on my desk and I just signed the thing when it came through there. That testimony is given no weight for several reasons, one of which is that Steward signed letters of assent on three occasions, not just one. The claim that he signed merely because the document was on his desk patently is spurious and invites the conclusion that his testimony is not reliable. Respondent argues that Johnson stated in his letter writ- ten to Steward on January 27, 1975, that "in searching our records we find that you need to execute another letter of assent," with nothing said about a multiemployer unit and that, therefore, it must be inferred that 'Steward did not, when he signed the letter of intent, propose to be bound by the existing NECA-441 contract. That argument relies on a non sequitur and, further, the evidence makes it clear that Steward knew what he was doing at all times relevant here- in. He voluntarily signed the three letters of assent,13 he received a copy of the contract to which he was bound by signing the letter of assent,14 he made a strenuous effort to 13 Johnson's explanation of why three, rather than one, letters of assent were signed and why he feels the letter of assent is open-ended is credited. The letters are not, by their terms, limited to a definite period of time. 14 This is a reasonable conclusion, based on the credited testimony of Balgenorth and the fact that Steward contended at the March 1 meeting that he did not understand the contract (thereby indicating he had read it). WAYNE ELECTRIC INC. 413 evade requirements of the contract he did not like (as dis- cussed below), and most important of all, he performed under the contract for several years. That performance is well recorded and includes the following: (1) Wayne Elec- tric regularly utilized the hiring hall provisions of the con- tract; Steward requested referrals on eight occasions in ear- ly 1975. (2) Steward regularly each month reported to the Union, as required by the contract, and made cash contri- butions required by those reports. (3) Steward posted the bond required by signatories to the contract. (4) Steward attended, and took active part in, the formal grievance filed against Wayne Electric and heard in March 1975. (5) Steward attended the meeting of March 1, 1975, called by Johnson, and took an active part in discussions that lasted 4 hours and which were devoted almost entirely to Wayne Electric's alleged violations of the contract. (6) Miles Bro- zowsky testified as follows, and his testimony was not de- nied by Steward: Q. Do you recall any other conversations with Mr. Wayne Steward when the subject of the union came up? A. Well, on numerous occasions he spoke of the union and that he was definitely under contract and that the- Q. Did he say he was under contract? A. Yes, he did. Q. With what union? A. Local 441, IBEW, Santa Ana. And that he was under contract; that he had signed it, I believe, in June or something like that-June of '74; that he became signatory and'it was binding for one year, and that he was in a world of hurt if he didn't, you know, play it cool. That was primarily all that ever was said. (7) Chester Jensen (Jensen), a former employee of Wayne Electric, testified that Steward told him about April 1975 that Wayne Electric had a contract with Local 441. In the face of such facts, it borders upon frivolity to contend that Wayne Electric was not bound to the NECA- Local 441 contract. He specifically agreed in writing on three occasions that NECA was his collective-bargaining representative, and that he would abide by the terms of any contract entered into by NECA and Local 441. Further, he substantially performed thereunder, and cannot now be heard to claim that he can repudiate the contract at will.u It is found that, at all times relevant herein, Wayne Elec- tric, through Steward, voluntarily signed letters of assent that bound Wayne Electric to bargaining agreements then effective between NECA and Local 441; that Steward so signed with ' knowledge of the contents of the letters of as- sent and the bargaining agreements ; that Wayne Electric and Local 441 mutually and regularly performed under said bargaining agreements ; and that the letters of assent and the bargaining agreements constituted valid and bind- ing contracts from and after the dates of signature. 15 Cornelius Storm v. United States, 94 U.S. 76 (1877), 24 Law Ed. 42, Williston on Contracts, 3d ed, § 78A; Restatement of Contracts, § 63 See also Clark A Ross v. Producers Mutual Insurance Company, 4 Utah 2d 396, 295 P:2d 339 (S. Ct. Utah, 1956). B. Alleged Breaches of Contract by Respondent Balgenorth and Brozowsky testified to several breaches of contract by Wayne Electric. Those breaches may be se- parated into two divisions : 16 (1) Breaches prior to the March 1 meeting; (2) breaches after the March 1 meeting. Balgenorth and Brozowsky were impressive witnesses, and neither Steward nor any other witness for Respondent de- nied their testimony. Balgenorth and Brozowsky are cred- ited. 1. The following breaches occurred prior to March 1: (a) Brozowsky was hired "off the street" by Steward on August 5, 1974, without request for, or with, a union refer- ral. He was told that, if a umon job was obtained, a referral by the Union would be required. Brozowsky worked for a while at nonunion wages, after which Wayne Electric ob- tained a union job, a name referral was obtained from the Union for Brozowsky, and he was paid on that job at the union wage scale. (b) On February 6 a nonunion employee, Bruce Williams, performed electrical work on the Altec- Lansing job in Anaheim for the electrical contractor on the job-Wayne Electric. 17 Williams had not been requested from or referred by the Union. (c) On February 14 Jim O'Keefe, a nonunion employee who had not been request- ed from or referred by the Union, did electrical work on the Altec-Lansing job for Wayne Electric." (d) On Febru- ary 17 and 18 two employees, O'Keefe and Tim Timony, neither of whom had been requested from or referred by the Union, performed electrical work for Wayne Electric. (e) On February 19 five employees who had not been re- quested from or referred by the Union performed electrical work for Wayne Electric on the Altec-Lansing job. 2. The following breaches occurred after the March 1 meeting: (a) Jensen was hired by Wayne Electric on March 12, without request or without union referral. (b) Wilson Work was hired by Steward for Wayne Electric' in late March, without request for or with a referral by the Union. (c) On March 25 Phil Verga performed electrical work at Wayne Electric without union referral. (d) On April 3 two employees performed electrical work without referral by the Union. C. The Formation of EIS The fact that Steward was annoyed by Local 441's inves- tigations, and that he was determined to divest himself of the Local's influence, is amply shown by the record. Steward's initial reaction to Balgenorth 's investigation was an attempt to conceal the fact that Wayne Electric was the electrical contractor when violations were apparent. On one occasion his nonunion, nonreferred employee falsely gave the name of an unrelated firm to Balgenorth as his employer. On another occasion Holmes falsely stated to Balgenorth that another company had taken over an elec- 16 This division is made only to emphasize the fact that Steward, contrary to his contentions made at the March 1 meeting, violated his contract know- mV and willingly, he was fully aware of the contract's provisions The employee falsely told Balgenorth that he was working for Posha Engineering. That firm is owned by Steward and does nonelectrical work. O'Keefe falsely told Balgenorth that he worked for Ling Corporation The fact that the electrical contractor was Wayne Electric is corroborated by G C. Exh 18. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trical contract from Wayne Electric. On still another occa- sion Balgenorth was told by one of Wayne Electric's em- ployees that the electrical contractor on thejob was Posha Engineering, which is owned by Steward but which does no electrical work. Johnson credibly testified that, during the meeting of March 1, Steward told him about Posha Engineering and Johnson explained that he had no objection to Steward's having two firms, one for union and one for nonunion work, provided the two were not "meshed"; i.e., if the two were "separate identities entirely." A Mr. Jokola was at the meeting as a representative of Respondent, and Johnson asked if he understood Johnson's explanation about the necessity for Steward to maintain separate entities. Jokola said he understood. Balgenorth corroborated Johnson's testimony. The history of the formation of EIS was not explained, nor was the date of its creation determined. Its background is very hazy, the only piece of evidence being the registra- tion of the fictitious name statement on June 12. That reg- istration is signed by Holmes as the- registrant. The first indication of the possibility of action being taken which could mean the formation of EIS is a statement made by Jim Smith, Wayne Electric's foreman, to Jensen when the latter was hired. Jensen credibly testified that Smith told him about March 12: Jim told me that they had a contract with the IBEW but they were getting out of it; that there were men working on another job that were IBEW so I was going to be over on this job until such time as they had got out of their contract with the IBEW. Wayne Electric's payroll records show that Jensen quit Wayne Electric on March 21 and started working on.that date for Wayne Steward individually. Jensen` testified that he.never was told about that change, but: A. I was told the company was going to change names, but I didn't know when it was going to take place. I didn't think it had taken place as yet. Q. And it says that you quit Wayne Electric on April the 18th. A. I never quit Wayne Electric. Jensen also testified, without denial by Steward, that, prior to his layoff on April 18, Steward told him the name of the Company was going to be changed "because the union was after him, 441, for the Altec [note: Altec-Lansing] job." On the date of his layoff, Jensen said he was told by Steward that "they were also going to get a different company for us to work under." The night he was laid off Jensen met with Steward and Smith. They had a discussion about Steward setting up another company and working with an- other union, and Steward asked Jensen if he could use Jensen's wife's business license for the new company. Mrs. Jensen later refused to do as Steward requested. Jensen said the first time he heard the name EIS was the first part of June. Work testified that he began employment for Wayne Electric in late March 1975 and that, in June of the same year, Steward and his foreman told him "if anybody asked me who I was working for I worked for EIS." 19 The first definite reference to EIS, other than the ficti- tious name registration, is contained in Brozowsky' s testi- mony. Brozowsky was laid off by Wayne Electric on April 14. He credibly testified that, in June, he called to talk with Steward but Steward was out. He then talked with Holmes and asked about a job: I asked him if he had any work and he said that they had work and that they were, now called EIS, and they were a union shop and they were in the Petro- leum Workers Union and that my rate (if pay would be $6.90 an hour after 30 days. I would start at $6.45 and after 30 days I would get $6.90. And that I had a week's,paid vacation and nine paid holidays, I believe it was. It might have been seven. But it was either seven or nine paid holidays. And that they had formed the new company and went with the Petroleum Workers. When Jensen was rehired on June 29, following a layoff, he was told by Smith that he was working for "EIS; the same people, Wayne Electric." In July, Steward assigned Jensen as foreman on the Marine Corps project in Orange County. Brozowsky and Work were on the same project, under Jensen's supervision. Jensen formerly was business manager and president of ABEW (American Brotherhood of Electrical Workers). Jensen suggested to Steward in April that Steward see about working out an agreement with the Petroleum Work- ers' Union because that organization worked with other unions and affiliates- "without any problem." Jensen gave Steward Dussard's telephone number. Holmes later called Dussard and set up a meeting with the employees. A con- tract between EIS and the Petroleum Workers' Union sub- sequently was worked out and ratified by five employees of EIS. Jensen credibly testified that on August 8 he talked with Steward on the telephone: He said, "Goddamn you, I told you I didn't want no union." And I said, "Wayne, it isn't a matter of what you want; it is what the men want. That is our right to have representation if we want it." He said, "Well, there isn't a man that wants it." And I said, "Well, they are going to have to tell me they don't want it; not you tell me, because that is up to them. I am the steward on the job." And he says, "Well, we are not going to have no goddamn union and I am telling you right now we are not going to have any." - Credited testimony of Brozowsky, Jensen, and Work, and stipulations of counsel show that creation of EIS re- sulted in no change whatever in the business of Wayne Electric. Further, Respondent offered no testimony or evi- dence (other than the fictitious name registration) in sup- port of its argument that Wayne Electric and EIS are sepa- rate entities. Managerial functions, employees, clerical 19 Brozowsky testified that Steward referred to EIS in a conversation about the middle of March, but that is contrary to all other testimony and evidence and this reference is not credited It is clear that EIS did not exist on that date, and the error is attributed to confusion or faulty memory. WAYNE ELECTRIC INC. 415 work, place of business, arrangement of offices and desks, work assignments, officers, directors, stock ownership of Wayne Electric, and all work details 20 of Wayne Electric are the same as they were prior to the creation of EIS. Jensen credibly, testified that Steward remained the "boss" at all times while Jensen was employed and that Holmes always deferred to Steward, even after EIS was in being. Testimony shows that Steward did the hiring and firing for both Wayne Electric, and EIS. (See, for example G.C. Exh. 17, which is a telegram signed by Steward, terminating Jen- sen.) The record is devoid of any basis for concluding that EIS is anything more than a name. Brozowsky credibly testified that he talked with Holmes in June. Holmes told Brozowsky that negotiations were un- der way with the Petroleum Workers' Union and that the company name was being changed because of the "trou- ble" Respondent was having under its contract with IBEW. Holmes said his name appeared as owner of EIS, but that the real, owner was Wayne Steward. Brozowsky also credibly testified that he agreed with Steward to work on nonunion jobs at less than union scale and to work on union jobs at union scale when such jobs were available. Dussard was an unusually impressive witness whose tes- timony is credited in its entirety. He testified that he at- tended the contract negotiation session on July 7. Holmes and Steward, attended for EIS. Dussard and Carroll Clark attended for the Petroleum Workers' Union. Dussard said Steward "seemed to take the lead" for EIS, and Steward stated: Wayne Steward told us he had a company called Wayne Electric; that he had closed it out; that, he did have a contract with the IBEW with Wayne Electric, but that he had closed that company out and this was a new company. That was the first time I had ever heard of Wayne Electric. Discussion Steward's pattern and course of action clearly are shown by the foregoing summary of the record. It is instructive to note that neither Holmes nor Steward denied the testimony given above; Holmes did not take the stand, and Steward's testimony was limited to answering but a few specific ques- tions. Steward frequently was in flagrant violation of his con- tract with IBEW. The Union's investigator precipitated a formal meeting on March 1 with Steward and his represen- tative. Soon thereafter Steward formed a paper organiza- tion and continued to breach his contract with Local 441, often in the name of EIS. In order to appear as a union company, while still breaching his contract with Local 441 through payment of less than contract wages, Steward exe- cuted 'an agreement with the Petroleum Workers' Union, 20 Paychecks were made out on what appears to be an indiscriminate basis so far as names are concerned. Some show Wayne Electric, some show Wayne Steward, and some show EIS as the drawer. It is apparent that names merely were attempts to make a case where one did not otherwise exist Employee witnesses credibly stated that they always considered them- selves employees of Wayne Electric, even though other names sometimes were used which had a wage scale lower than that of Local 441. He later became unhappy with that arrangement, but he did not need to terminate it; Dussard backed off after hearing that EIS and Wayne Electric were one and the same. It is clear from the record, and it is found, that Steward's creation of EIS was a sham transaction entered into for the sole purpose of enabling Steward to avoid his responsibili- ties under the contract between Wayne Electric and-Local 441.21 Under such circumstances, EIS is the alter ego of Wayne Electric; they are a single employer and the same organization, with the same owner: Wayne Steward.22 The allegations of paragraph,15 of the complaint, and the alle- gations related thereto, are supported by the record. D. Affirmative Defenses 1. Allegation of time bar under Section 10(b) of the Act Respondent argues that the key action relied on by Gen- eral Counsel to establish a violation of Section 8(a)(5) is Respondent's recognition of the Petroleum Workers' Union on May 30, 1975, and that such date is beyond the 10(b) period because the 8(a)(5) allegation first was made in the amended charge filed on December 5, 1975. This argument is based on a false premise. General Counsel's case is not, as claimed, "bottomed on Respon- dent EIS' recognition of the Petroleum Workers on May 30, 1975." The refusal-to-bargain allegation of the com- plaint, paragraph 15, is based on the amended charge and specifically states that the allegations of paragraphs 12 and 13 of the complaint support the refusal-to-bargain allega- tion. Paragraph 13 alleges that, in or about June 1975, Re- spondent without notice changed the terms and conditions of employment. The evidence, and counsel's stipulations, show that such changes regularly and consistently were and have been enforced by Respondent, until and includ- ing the present date. That enforcement includes, inter alia, discontinuance of contract wage and benefit payments, discontinuance of payments to union funds as required by the contract, discontinuance of monthly reports to the Union, and cessation of use of the Union's hiring hall. Failure and refusal to meet each requirement constitutes an illegal act, and tolls the application of Section 10(b).23 Further, Wayne Electric is, and has been, under contract with the Union since 1972. The Orange County unit clearly is -defined in the contract. Failure or refusal to employ unit members in violation of their Section 7 rights, as described in the original charge, normally would, or reasonably 21 As Johnson explained to Steward, it is possible for an entrepreneur to have two companies, one union and one nonunion However, Steward did not follow that course of action. He claimed to have closed his first compa- ny, and to have opened a new one, however, there was no change in busi- ness operations There was no more than a continuation of Wayne Electric under the name of EIS 22 Peter Kiewit Sons' Co and South Prairie Construction Co, 206 NLRB 562 (1973), Rushton & Mercier Woodworking Co, and Rand & Co, Inc., 203 NLRB 123 (1973): Schultz Painting & Decorating Co, 202 NLRB Ill (1973); N L R.B, v. Gibralter Industries, Inc, 307 F 2d 428 (C.A. 4, 1962), enfg 132 NLRB 1527 (1961) Tests of a single employer are described in Sakrete of Northern California, Inc v N L R B, 332 F 2d 902 (C A. 9, 1964), cert denied 379 U.S 961 (1965), N L R B v. Deena Artware, Inc, 361 U S. 398 (1960) 23 Nu-Car Carriers, Inc, 187 NLRB 850 (1971) 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could, be expected to involve a refusal to bargain. The 8(a)(3) and (5) charges are closely and directly related, and the original charge was timely filed. Under such circum- stances Section 10(b) is not a defense.24 Finally, the date selected by Respondent as the time the 10(b) period began to run is alleged to be the date Respon- dent EIS recognized the Petroleum Workers' Union.` The Charging Party in this case is Local 441. The record shows several contract violations by Respondent outside the 10(b) period, but those violations are not the basis for specific charges. The basic controversy is related to the relationship between Respondent and Local 441, not between Respon- dent and individual employees. Although Local 441 was aware of Respondent's contract violations as early as Feb- ruary, it was not aware of any activity of the Petroleum Workers' Union, so far as the record shows,25 until Dus- sard talked with Balgenorth on September 4 and the latter learned for the first time that Local 9 had a contract with EIS. Representatives of Local 441 and the Petroleum Workers's,Union thereafter met, and the latter union de- cided to "back off; cease all activities in that until we found out what the situation was." The party primarily involved thus is Local 441. The Board's decisions consistently hold that the 10(b) period does not begin to run until the person or party adversely affected is put on notice of the action constituting the al- leged unfair labor practice 26 Since Local 441 first learned on September 4 that the Petroleum Workers' Union was involved with Respondent, the, 10(b) period did not start to run until that date, which is well within the 6-month peri- od. 2. Alleged estoppel Respondent contends that General Counsel is estopped from proceeding herein because of earlier approval of a settlement agreement involving EIS. The charges on which the settlement agreement was based involved 8(a)(1) and (3) allegations against EIS, re- lated ` to individual employees. Wayne Electric is not named. The parties to the settlement, and the issues, are entirely different from the case herein.27 Therefore, estop- pel is not available as a defense. As stated by the Board in Fox River Pattern, Inc., 199 NLRB 68,70 (1972): There is no absolute bar to setting aside a settlement agreement and processing unfair labor practice charged in the same matter. Yet, it is equally true that the Board "as a matter of policy" has respected settle- ment agreements. The line of demarcation is plain. The design'and the desirability of a settlement agree- ment is to lay disputed matters to rest. In a labor rela- tions context, it is to restore, as effectively and expedi- 24 Carpenters, Local 1620 (David M Fisher Construction Co), 208 NLRB 94 (1974), Westinghouse Electic Corporation, 188 NLRB 885 (1971); United States Postal Service, 203 NLRB 916 (1'973) 25 Wisconsin River Valley District Council, 211 NLRB 222 (1974), Alabast- er Lime Company, Inc, 194 NLRB 1116 (1972), L C Cassidy & Son, Inc, 185 NLRB 920 (1970). 26 The record shows that Steward made every effort to keep his contractu- al violations, including his negotiations with the Petroleum Workers' Union, secret from Local 441 27 Resp Exhs 6, 7, 8, and 9 tiously as possible, the labor peace, which is the pur- pose of the Act to achieve. Where the settlement agreement achieves this end, it would be a -disservice to the parties involved and to the policies of the Act to set aside a settlement agreement and resuscitate a dis- pute which has already been laid to rest. But this is true only where the dispute has been effectively laid to rest. Where, because of new and independent unfair labor practices, or for other reasons, the settlement agreement "has failed of its purpose" (Jackson Manu- facturing Company, supra), there is no'estoppel to fur- ther Board proceedings. Wallace Corporation v. N.L R.B., 323 U.S. 248, 254 (1944). The record does not show the final disposition of the EIS settlement agreement, but even had it been made final, it could and would be set aside for good reason, as stated in Fox River, supra. 3. Alleged unlawful age discrimination 'Section 3.19 of the NECA-Local 441 agreement states: On all jobs employing five (5) or more journeymen, if available, every fifth journeyman shall be ,fifty (50) years of age or older. Respondent argues that Local 441 must be denied the remedial procedures of the Board because it encourages unlawful age discrimination, and cites N.L.R.B. v. Man- sion House Center Management Corporation, 473 F.2d 471 (C.A. 8, 1973),.as its authority. Respondent also relies on 29 CFR Part 860, Sec. 860.91, as authority. - Johnson and Balgenorth credibly testified that the afore- said contractual provision never has been discussed at ne- gotiation sessions, nor has it ever been used or enforced. The evidence shows that the Union has operated its hiring hall free from discrimination on any basis. Respondent relies solely on the quoted contractual pro- visions as evidence of discrimination. The contractual provision arguably may present a prima facie showing of discrimination, although that proposition is doubtful. Assuming, arguendo, that it is a valid proposi- tion, General Counsel rebutted the contractual implication when he presented credible evidence that the provision never had been the subject of negotiation and never has been used. At that point it became the Respondent's bur- den to go forward and prove its defense. Respondent failed to discharge its burden. Respondent showed no instance of discrimination. Practice, not contractual provision, is the key to Mansion House. It there was stated at` 477: ... we hold the remedial machinery of the [Act] can- not be available to a union which is unwilling to cor- rect past practices or racial discrimination. Federal complicity through recognition of a discriminating union serves not only to condone the discrimination, but in effect legitimizes and perpetuates such invidious practices. Certainly such a degree of federal participa- tion in the maintenance of racially discriminatory practices violates basic constitutional tenets. This defense is not applicable herein 28 ' 28 Hawkins Construction Company, 210 NLRB 965 (1974) WAYNE ELECTRIC INC. 417 4. Failure to establish Local 441's majority Respondent argues that General Counsel failed to estab- lish Local 441's majority status in an appropriate bargain- ing unit 29 General Counsel need not offer such proof. Respondent was signatory to, and bound by, the NECA-Local 441 con- tract. At no time did Respondent indicate its desire to withdraw from that contract. Local 441 is the union with which NECA historically has bargained. Respondent has operated under the NECA-Local 441 contract since 1972. Under such circumstances the law of Sheridan Creations, Inc.30 is applicable. There the Board stated, inter aha: The Respondent contends, however, that at the time it withdrew from multiemployer bargaining it believed in good faith that the Union no longer represented a majority of the Respondent's employees. But in our opinion the evidence tendered by the Respondent is not sufficient to overcome the presumption of a con- tinued majority status that flows from the Associa- tion's recognition of the Union as majority representa- tive. For another thing, even if we were to assume that a majority of Respondent's employees no longer fa- vored the Union and did not wish to be represented by the Union, that fact would not relieve the Respondent of its obligation to bargain with the Union as to the appropriate multiemployer unit, nor justify an untime- ly withdrawal from such unit. The test of the obliga- tion to bargain in this case is whether the Union repre- sents a majority of employees in the multiemployer unit as a whole. The contract recognized the Union as majority representative and we find the evidence in- sufficient to overcome the presumption of continued majority status. This argument is without merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action de- signed to effectuate the policies of the Act. Respondent acknowledges, and the record shows, that 29 Respondent argues that an 8(f) agreement here is at issue. That argu- ment is rejected as being without merit. 30 Sheridan Creations, Inc, 148 NLRB 1503 (1964), enfd. 357 F.2d 245 (C.A 2, 1966), cert. denied 385 U S 1005 (1967). after April 24, 1975,31 Respondent unilaterally discontin- ued paying wage rates and fringe benefits, as required by the collective-bargaining agreements. Testimony shows without dispute that Respondent performed electrical work after April 24, 1975, under circumstances, and using wage rates, in violation of said collective-bargaining agreements. I shall, therefore, recommend that Respondent make whole the Union and all unit employees for any and all losses incurred because of Respondent' s illegal and unilateral changes described above, with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Wayne Electric, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Electrical Installation and Services is the alter ego of Wayne Electric, Inc. 3. Local Union No. 441, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. The following unit is an appropriate unit within the meaning of Section 9(b) of the Act: All employees engaged in electrical work, electronic work, maintenance and temporary wiring, cable splic- ing, prefab cutting and threading of materials, han- dling and moving of electrical materials, operating equipment incidental to electrical work, welding on electrical work, sound work, and electrical store keep- ing employed by the employer-members of NECA, and signatories to the NECA-Local 441 contract, in- cluding\pondent, within the County of Orange, California. 5. The above-named labor organization is the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, and has been such exclusive representative since at least September 1973. 6. Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(5) and (1) of the Act, as described above, by: (a) Refusing on or about April 24, 1975, and at all times thereafter, to abide by the terms of the NECA-Local 441 bargaining agreements entered into and effective on Sep- tember 1, 1973, and September 1, 1975. (b) Refusing on or about April 24, 1975, and at all times thereafter, to recognize and bargain with the Union as the representative for purposes of collective bargaining on be- half of the' employees in the appropriate unit described above. (c) Unilaterally changing, on or about April 24, 1975, existing wage rates, health and welfare benefits, pension benefits, and other terms and conditions of employment. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 31 It was stipulated by counsel that Respondent's actions herein described commenced on or about March 1, 1975. The 10(b) period commenced April 24, 1975. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 32 Respondent Wayne Electric, Inc., and its alter ego, Elec- trical Installation and Services, Anaheim, California, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to abide by the terms of the two collective- bargaining agreements entered into between NECA and the Union on September 1, 1973, and September 1, 1975. (b) Refusing to recognize and to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Local Union No. 441, In- ternational Brotherhood of Electrical Workers, AFL-CIO, in the following appropriate unit: All employees engaged in electrical work, electronic work, maintenance and temporary wiring, cable splic- ing, prefab cutting and threading of materials, han- dling and moving of electrical materials, operating equipment incidental to electrical work, welding on electrical work, sound work, and electrical store keep- ing employed by the employer-members of NECA, and signatories to the NECA-Local 441 contract, in- cluding Respondent, within the County of Orange, California. (c) Unilaterally changing wage rates and terms and con- ditions of employment of employees in the above-de- scribed appropriate unit during the term of union contracts without first reaching agreement with the Union about such changes. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Recognize and bargain with the Union for its em- ployees in the appropriate unit described above, as re- quired by the two aforesaid NECA=Local 441 contracts. (b) Upon request, rescind any and all unilateral changes Respondent made on and after April 24, 1975, in Respon- dent's wages, wage rates, and other terms and conditions of employment during the effective period of said two con- tracts. (c) Make whole all its employees in the appropriate unit defined above, for any and all loss of wages and benefits they incurred because of Respondent's illegal unilateral changes described above, by paying said employees the dif- ference between what they were paid since April 24, 1975, and what they would have been paid in accordance with provisions of the aforesaid two contracts. (d) Reimburse the Union for the loss of all health and welfare, pension plan, and other payments incurred by the Union as a result of Respondent's unilateral and illegal violation of the aforesaid two contracts. 32 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 (e) Post at its principal place of business in Anaheim, California, copies of the attached notice marked "Appen- dix."33 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of the Respondent, shall be 'posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall lie taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 33 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to carry out the Order of the Board, the judgment of any court, and to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representatives of their choosing 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 abide by the terms of the two collective-bargaining agreements entered into between National Electrical Contractors Association and Local Union No. 441, International Brotherhood of Electri- cal Workers, AFL-CIO, effective September 1, 1973, and September 1, 1975. WE WILL NOT, during the effective periods of said two agreements, refuse to recognize and to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with said Union as the exclusive bargaining representative of our employees in the following appropriate unit: All employees engaged in electrical work, elec- tronic work, maintenance and temporary wiring, ca- ble splicing, prefab cutting and threading of materi- als, handling and moving of electrical materials, WAYNE ELECTRIC INC. operating equipment incidental to electrical work, welding on electrical work, sound work , and electri- cal store keeping employeed by the employer-mem- bers of NECA, and signatories to the NECA-Local 441 contract, within the County of Orange, Califor- nia. WE WILL NOT unilaterally change the wage rates or terms and conditions of employment of our employees in the above-described appropriate unit, during the term of any union contract without first reaching agreement with the Union about such changes. WE WILL recognize and bargain with the Union for our employees in the appropriate unit described above, as required by the aforesaid two contracts. WE WILL, upon request, rescind any and all unilater- al changes made by us on and after April 24, 1975, in 419 our wages, wage rates, and other terms and conditions of employment during the effective period of the aforesaid two contracts. WE WILL make whole all our employees in the ap- propriate unit defined above for any and all loss of wages and benefits they incurred because of our illegal unilateral changes, by paying said employees the dif- ference between what they were paid since April 24, 1975, and what they would have been paid in accor- dance with provisions of the aforesaid two contracts. WE WILL reimburse the Union for the loss of all health and welfare, pension plan, and other payments incurred by the Union as a result of our unilateral and illegal violation of the aforesaid two contracts. WAYNE ELECTRIC, INC.; AND ELECTRICAL INSTALLA- TION AND SERVICES