Hayden Electric, Inc.

HAYDEN ELECTRIC INC. 601 Hayden Electric, Inc. and International Brotherhood of Electrical Workers, Local 728. Case 12-CA- 8937 June 16, 1981 DECISION AND ORDER On February 13, 1981, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to Re- spondent's exceptions. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 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, Hayden Elec- tric, Inc., Pompano Beach, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with International Brotherhood of Electrical Workers, Local 728, as the exclusive repre- sentative of our employees in the following ap- propriate unit: All journeymen and apprentice electricians employed by us at our Pompano Beach, Florida facility, but excluding guards and supervisors as defined in the Act. 256 NLRB No. 104 WE WILL NOT refuse to acknowledge that we are bound by the terms of a collective-bar- gaining agreement executed by the Union and Florida East Coast Chapter, N.E.C.A., Inc., effective on October 1, 1979, which agreement expires by its terms on September 30, 1981, and any subsequent agreement between the same parties until the expiration date of such subsequent agreement, unless during the term of the then subsisting agreement we shall have given timely written notice to terminate our authority to NECA to act on our behalf in collective-bargaining negotiations. WE WILL NOT discourage membership in or activities on behalf of the Union, or any other labor organization, by terminating the employ- ee status of continuing strikers or refusing to reinstate them, upon their unconditional offer to return to work, to existing vacancies, with full rights and benefits under the then subsist- ing collective-bargaining agreement, or by dis- criminating against them in any other manner with respect to their hire, tenure, or any terms or conditions of employment. WE WILL NOT unilaterally change the wage rates and other terms and conditions of em- ployment of our employees in the unit herein found appropriate, without bargaining with the Union. WE WILL NOT deal directly with our em- ployees, rather than the Union, as to our em- ployees' wages, hours, and other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion or to refrain from any or all such activi- ties as guaranteed by Section 7. WE WILL, forthwith, implement the above- described agreement and give retroactive effect thereto from October 1, 1979. WE WILL bargain with the Union as the ex- clusive bargaining representative of our em- ployees in the above appropriate unit and, upon request of the Union, rescind the unilat- eral changes of incentive increases and our medical plan. WE WILL make whole our employees for any loss of pay or other employment benefits which they may have suffered by reason of HAYDEN ELECTRIC INC. 601 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our refusal to implement the aforesaid agree- ment from October 1, 1979, with interest. WE WILL offer all our economic and unfair labor practice strikers immediate and full rein- statement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dis- missing, if necessary, replacement employees hired by us on or after November 5, 1979, and make them whole for any loss of earnings they may have suffered by reason of our discrimina- tion against them, with interest. If at the com- pliance stage of the Board proceeding, it is de- termined that we had insufficient job openings available to be filled by all the strikers, then we shall place the names of those strikers who may not be employed immediately on a prefer- ential hiring list. HAYDEN ELECTRIC, INC. DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: This proceeding was heard by me on December 2 and 3, 1980, in Coral Gables, Florida, on a complaint' that Re- spondent Hayden Electric, Inc., violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amend- ed, 29 U.S.C. §151, et seq. (the Act), by discontinuing recognition of Charging Party International Brotherhood of Electrical Workers, Local 728 (Union), by refusing to comply in any respect with a duly executed collective- bargaining agreement, and by constructively discharging various of its prior employees when they applied for re- instatement after a strike. Respondent denied that it vio- lated the Act in any respect. Upon consideration of the entire record in this pro- ceeding, including my observation of the demeanor of the witnesses, and the briefs submitted by the General Counsel, the Union, and Respondent, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Respondent is a Florida corporation with its principal office and place of business located in Pompano Beach, Florida, where it is engaged in the construction industry as an electrical contractor. More particularly, a principal part of its business is making service calls to its custom- ers to repair electrical wiring or install new electrical equipment. During the 12 months preceding the issuance of the complaint, a representative period, Respondent i The relevant docket entries are as follows: The unfair labor practice charge was filed on December 28, 1979, and a complaint issued on June 6, 1980. An earlier unfair labor practice charge was filed on November 13, 1979, but was dismissed because the Union was slow in gathering ma- terial in support of the charge. purchased and received at its place of business, products, goods, and materials valued in excess of 50,000 which were shipped directly to it from points located outside the State of Florida. I conclude, as Respondent admits, that it is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find and conclude, as Respondent admits, that the Union has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Until at least October 10, 1979, the Union represent- ed and was recognized by Respondent as the representa- tive of the following unit, which Respondent admitted was a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All journeymen and apprentice electricians em- ployed by Respondent at its Pompano Beach, Flor- ida facility, but excluding guards and supervisors as defined in the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Facts Prior to 1977, Respondent's sole owner was Bruce Hayden, from whom Respondent took its name. At least from 1969, Respondent had been a member of Florida East Coast Chapter, N.E.C.A., Inc. (NECA), or author- ized NECA to act as its agent in collective bargaining with the Union. NECA, an organization of employers in the electrical contracting industry, exists for the purpose, inter alia, of representing its employer-members in nego- tiating and administering collective-bargaining agree- ments with the Union. In or about 1975, there apparently was some dispute between Hayden and NECA's leadership, which prompt- ed Respondent to resign from membership in NECA. Whether it was about that same time, but in or about 1974, 1975, and 1976, Hayden developed a policy of sending a letter to the Union, with a copy to NECA, prior to the expiration of the then-current NECA-Union collective-bargaining agreement, stating that it intended to exercise its option to cancel its contract. William H. Briley, formerly Respondent's estimator and vice president since 1969, bought out Hayden in May 1977 and became Respondent's president. Omitting to forward the customary letter that year, Briley sent identical letters to the Union in 1978 and 1979, with copies to NECA, which constituted his revisions of Hay- den's letter and gave rise to the complaint herein. They read: Complying with the requirements of the IBEW LU 728 [sic], this letter is to advise, 150 days in ad- vance, of our intention to exercise our option to cancel our contract with the local union 728. We find our project bidding hindered and are unable to compete with non-union shops paying lower labor costs and less benefits. --- ----- - - HAYDEN ELECTIC INC. 603 Due to our long standing relationship with the local, we hope economic conditions improve so this option does not have to be finalized. B. The Principal Issues Respondent argues that the intent of the letter was to withdraw from NECA authority to bargain collectively for it in its negotiations with the Union. The General Counsel and the Union argue that Respondent had no such intention and, even if it did, the letter failed to effect what Respondent now states it intended to do. There are two writings which are material to the reso- lution of this issue. Here, as in other cases,2 an employer becomes bound by the terms of a collective-bargaining agreement by becoming a member of NECA and/or by signing a form of "Letter of Assent." 3 Here, after and because Briley had become Respondent's sole owner, he signed on February 28, 1978, the following document: In signing this Letter of Assent, the undersigned firm does hereby authorize FLORIDA GOLD COAST CHAPTER, N.E.C.A., INC. as its collec- tive bargaining representative for all matters con- tained in or pertaining to the current approved INSIDE WIREMAN labor agreement between the FLORIDA GOLD COAST CHAPTER OF N.E.C.A., INC. and LOCAL UNION 728, I.B.E.W. This authorization, in compliance with the current approved labor agreement, shall become ef- fective on the Ist day of October, 1977. It shall remain in effect until terminated by the undersigned employer, giving written notice to the FLORIDA GOLD COAST CHAPTER, N.E.C.A., INC. and to the LOCAL UNION at least one hundred fifty (150) days prior to the then current anniversary date of the aforementioned approved labor agree- ment. The collective-bargaining agreement contains the follow- ing language: Either party desiring to change or terminate this Agreement must notify the other in writing at least 150 days prior to the anniversary date. C. Additional Facts From April 27, 1979, 4 the date that the above-quoted letter was sent by Briley to September 30, the anniversa- ry date of the agreement, Briley and Union Business Manager James Weldon conferred on a number of occa- 2 See, for example, Central NVe Mexico Chapter. National Electrircal Contractors Association. Inc., et al. 152 NLRB 1604 (1965) .Velson Elec- tric. Gary C Nelson. Inc., and Gary C elson Electric, 241 NLRB 545 1979). 3 Normally, two such forms are signed, one pertaining to "inside work," the other to "residential work." Both such forms s"ere signed by Respondent, each pertaining to a different collective-bargaining agree- ment. The forms, other than that, are identical; and, for the sake of bre- vity, I have quoted from only the "inside work" assent form and collec- tive-bargaining agreement and refer herein to both agreements as "agree- ment." ' All dates set forth hereinafter refer to the year 1979. unless otherwise stated. sions. 5 Apparently, by September 30, the Union and NECA negotiated a "cooling off' period of 10 days. By October 10, no agreement had been reached, and the Union called a general strike against all of its employers, including Respondent, which had substantially complied with the collective-bargaining agreement to that date. On Saturday, November 3, the Union's membership ratified the terms of a new agreement. The Union sent a tele- gram to Respondent the same day offering the immediate return to work of its members and requesting further dis- cussions of the dispute concerning the "state of contrac- tual relations." Respondent's employees were directed to report to work on Monday, November 5. How many of Respondent's employees actually report- ed to work is unclear. Certainly, employee Forest B. Love did, as well as about five or six others. Earlier in the morning, before Love reported, Briley had posted notices to employees stating that, as of October 1, Re- spondent no longer had an agreement with the Union and that all persons interested in employment had to contact management to discuss wages, hours, and bene- fits. When Love reported, Briley advised him that he had gone nonunion, that his attorney had advised him that he must offer reinstatement to his striking employ- ees, and that Briley trusted that Love realized that he was going to be paid "substantially less" than or (accord- ing to Briley) the same as what he was paid before, clearly less than what the new agreement called for. In fact, Briley paid only a few of his replacement employ- ees as high as the hourly rate of $11.46, the rate estab- lished in the then-expired agreement. Briley had no intention of complying with the terms of the newly negotiated NECA agreement, nor did he intend to reinstate his striking employees to their former positions at the applicable rate of pay. Although I dis- credit his testimony that he told Weldon on November 5 that under no circumstances would he reinstate his former employees, he never answered Weldon's Novem- ber 3 telegram offering to return all strikers to employ- ment and demonstrated, by his refusal to reinstate Love on November 5 and his termination of two or three other employees, that Respondent offered no employ- ment opportunities. It is equally apparent that, from at least November 5, Briley dealt individually with his em- ployees as to their terms and conditions of employment, reduced the wages of many of his employees to levels below those which were required by the expired agree- ment, and unilaterally established different benefits, such as a major medical plan and incentive wage increases. D. Discussion, Further Facts, and Conclusions Board law requires that an attempted withdrawal of authority from a multiemployer unit must be clear, un- conditional, and unequivocal. Retail Associates, Inc., 120 NLRB 388 (1958); The Carvel Company and C and D Plumbing and Heating Company, 226 NLRB 111 (1976), enfd. 560 F.2d 1030 (Ist Cir. 1977); Hotel and Restaurant Employees and Bartenders Union, Local 2, etc. (Zim 's Res- The substance of their conv ersations, as to which there is a distinct cotiflict, will be discussed Infra. HAYDEN ELECTRIC NC. 603 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taurants, Inc.), 240 NLRB 757 (1979). It may be stated with precision that Respondent's letter does not meet that test. Rather, the letter is at best ambiguous, relates solely to the termination of the contract, and provides nothing enlightening by its terms to indicate Respond- ent's desire to withdraw NECA's bargaining authority. Thomas Hoover and Dennis Loy d/b/a The Players Res- taurant, 246 NLRB 863 (1979). Nor, by Briley's own admission, was the letter intend- ed to withdraw such authority (or to terminate the con- tract) at the time the letter was sent. Instead Briley used it as "insurance" to protect himself in the event that NECA's bargaining resulted in a union strike or in an agreement which Briley believed would not be conduc- ive to Respondent's needs. Thus, the "option" about which Briley wrote had not been exercised a week before the end of the Union's strike, when Briley told Marshall E. Williams, NECA's secretary manager, that he still had a difficult and unpopular decision to arrive at. It was only later that Briley told Williams that he had made a decision to have an "open shop." 6 It is well es- tablished that Respondent may not await the outcome of the multiemployer negotiations to decide whether to opt out of the agreement. Falkowski Grocery, 236 NLRB 473, 475 (1978). Leaving aside for the moment Briley's conversations with Weldon, Briley's conduct in September and early October, he went to three or four NECA meetings con- cerning the progress of negotiations, and the only reason he did not speak at those meetings is that the participants spoke about all the matters which Briley wished to raise. Briley complied with NECA's agreement for a "cooling off' period and kept abiding by the expired contract's terms. Even when Briley terminated Love and two or three other employees, he filled out the union termina- tion slips in conformity with the expired contract. Fur- ther it is also telling that Briley's past actions were in- consistent with the notion that he was withdrawing bar- gaining authority from NECA. In 1978, he wrote the identical letter to NECA; yet when the 1978-79 agree- ment was consummated, Respondent complied with all of its terms and provisions. If it were true that Respond- ent intended to withdraw authority from NECA in 1978, and did so according to the contentions which it now posits, then there would have been no need in 1979 for it to once again withdraw the authority which it had with- drawn a year before. That Briley felt a need to write his 1979 letter demonstrates that his intent was something different from what he expressed at the instant hearing. Respondent claims, however, that the Union, by its course of conduct, consented to or acquiesced in Re- 6 Weldon testified that, at a meeting with Briley on September 17, Briley stated that he was interviewing applicants for employment because he could not take a strike. He further stated that it was a big decision to go nonunion and that he was not sure what he would do. Although I generally have not credited Briley, a number of his statements to which he testified show this same frame of mind. Thus, he claimed that, at the beginning of the strike, he pleaded with Weldon to send him some em- ployees, threatening that, if Weldon failed to comply, he would go "open shop." In May, he claimed that he told Weldon that, if there were a strike, he had the option to go "open shop." Respondent's brief supports this interpetation, noting: "During the strike, Briley definitely made the decision to run Hayden as a non-NECA shop, thereby exercising the option he retained in his April 1979 termination letter. spondent's attempted withdrawal of bargaining authority. It is clear that Weldon was playing "cat and mouse" with Briley, suspecting that he was attempting to escape from his contractual obligations but feeling that his letter was not sufficient to withdraw bargaining authority from NECA. Thus, Weldon, after receiving Briley's letter, purposefully waited to contact Briley until early May, well within the 150-day period, so that Briley would have no possibility of exercising a proper and timely withdrawal. As Weldon put it, he was not going to send Briley to school on how to write letters. Indeed, in light of Respondent's habit since 1974 of sending similar let- ters each year, but still complying with each agreement that had been negotiated, Weldon could reasonably have assumed that Respondent's letters were not intended to withdraw bargaining authority. In any event, a union's consent or acquiescence may not be proved merely by the games Weldon played. Rather, the Board has instructed in Preston H. Haskell Company, 238 NLRB 943, 948 (1978), enforcement denied 616 F.2d 136 (5th Cir. 1980), quoted with approv- al in Reliable Roofing Company, Inc., 246 NLRB 716 (1979), that: If union consent to withdrawal is to be implied, "the union's conduct must involve a course of af- firmative action which is clearly antithetical to the union's claim that the employer has not withdrawn from multiemployer bargaining. Neither the Union's failure to immediately object to Respondent's with- drawal nor its failure immediately to demand Re- spondent's signature on the contract is considered an implied consent to the putative withdrawal." The record demonstrates that Weldon had no intention of releasing Respondent, the Union's most significant service contractor, from the NECA-negotiated agree- ment. First, Weldon knew the general Board rule that Respondent had to clearly and unequivocally withdraw bargaining authority from NECA and considered that Respondent's letter, whatever may have been Briley's intent, failed to do so. Thus, he exercised caution by not contacting Briley until early May to inform him that, if he intended to withdraw NECA's bargaining authority, his letter did not accomplish that object. Further, Weldon credibly testified that he was wholly unwilling to negotiate separately with any of his employers, con- sidering himself bound by the "most-favored nation" provision of the NECA agreement. Thus, he suggested that Briley pursue his desires by going to NECA meet- ings, which Briley did. As a result, I reject the testimony by Briley that Weldon acquiesced in Respondent's with- drawal of bargaining authority from NECA. Specifically, I discredit Briley's assertions that he stated to Weldon in May or June that his letter gave him the right to bargain "one-to-one," and that Weldon did not respond, thus im- plying Weldon's agreement and Briley's insistence that there had been negotiations between him and Weldon at that meeting or in August when the Union's negotiations with NECA commenced or in September or October. Rather, I credit Weldon's testimony that the issue of in- dividual bargaining was never raised, that the intent of HAYDEN ELECTRIC INC. 605 the letter and the withdrawal of bargaining authority was never discussed, and that he consistently told Briley that Respondent was bound by the NECA agreement and that the Union would vigorously pursue that posi- tion. 7 It is true that, in two letters written to Briley in early 1980, Weldon referred to "our last negotiations meet- ings," to his request of Briley for "some type of a coun- terproposal concerning our negotiations," and (in a letter dated March 6, 1980) to his desire "to schedule another negotiating meeting with you." The effect of those let- ters is tempered, however, by a number of facts, the principal of which is that, on November 7, the Union signed an unfair labor practice charge against Respond- ent alleging, inter alia, that Respondent violated Section 8(a)(5) of the Act by refusing to execute the agreement negotiated by NECA and unilaterally changing its terms and provisions. On the same day, Weldon met with Briley and told him that the April letter was defective, that he was bound by the agreement, and that the Union was going to make Respondent live up to it. Apparently, Briley was furious that Weldon was forcing him to sign the agreement which Briley was not going to sign. Thus, it is clear that the Union was being consistent in its posi- tion that Respondent never validly withdrew bargaining authority from NECA. Although I am not satisfied with Weldon's explanation of what he meant in his letters by "negotiations," it ap- pears that the word was not wholly misused in the cir- cumstances. Throughout the various meetings between Weldon and Briley, the latter mentioned special arrange- ments-a reduction in hourly wage rates and overtime- because of the extra costs in operating his service trucks and servicing clients which often required overtime work. Weldon, however, never wavered from the terms that were being talked about with NECA and the terms that were finally agreed upon. Thus, there were attempts by Briley to obtain a cheaper contract and, in that sense, Weldon's characterization of the meetings was not inap- propriately described as "negotiations." I am also cognizant of Weldon's testimony that, when Briley continued to refuse to acknowledge that he was bound by the NECA agreement, Weldon solicited coun- terproposals to get them "off dead center" at meetings on November 7 and in December. Contrary to most of the authority cited by Respondent, however, Weldon also made clear (as Briley conceded, at least from No- vember 5) that the Union considered Respondent bound by the NECA agreement. In these circumstances, the Union did not engage in individual bargaining, for at no time did Weldon indicate a willingness to agree to terms different from those negotiated with NECA. The Carvel Company, supra, 222 NLRB at 112, fn. 8 (1976). At best, Weldon might have listened to a counterproposal in 7 In discrediting Briley, I have relied not only on demeanor but also on probabilities. I also found Briley evasive, particularly during the Union's cross-examination of him, and rely on Briley's admission that his memory of facts sworn to in his investigatory affidavit was "not too good" in light of lapse of time between the making of that affidavit and the hearing herein. On the other hand, Weldol appeared to he self-as- sured and in full control of the facts. which he testified to with clarity and sincerity I credit his narration of the dates and conltents of his meet- ings with Briley order to avoid the litigation of the instant unfair labor practice complaint; and he might have agreed to some- thing less than the NECA agreement. 8 His willingness to listen to Briley and to settle a dispute is a far cry from the principle which Respondent espouses, that is, that the Union acquiesced in Respondent's untimely withdrawal from the Association. At no time did that happen. As a consequence, I conclude that Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing to comply retroactively and continuing to fail to comply with the Union's agreement with NECA and refusing to recog- nize the Union as the collective-bargaining representative of its employees in the appropriate unit, set forth above.9 I also specifically conclude that Respondent unilaterally discontinued its contributions to the Union's fringe bene- fit funds, in violation of the same section. Similarly, by posting its notice on November 5 and directly dealing with employee Love, it also violated Section 8(a)(5) and (1) by bypassing the Union as the exclusive bargaining representative. Further, it is clear that the Union, on behalf of Re- spondent's employees, made an unconditional offer for the employees to return to work on November 5. Re- spondent failed to properly reinstate them, despite the fact that it employed approximately 18 replacement em- ployees on that date and, since then, has hired approxi- mately 10 new employees, not former employees. The failure to reinstate the economic strikers violates the fa- miliar rule set forth in The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969). When Love refused to accept Briley's offer to reinstate him at a wage rate less than that required by the NECA agreement, Love requested a "termination" slip, as he had been advised to do by Weldon. Briley gave him one, and Respondent prepared such forms for at least three other employees. The General Counsel contends that, as a result of Briley's failure to offer reinstatement to Love and the others at the correct rate of pay, and by making clear that it had no intention to offer reinstatement to any of its employees at the correct rates, Respondent constructively discharged the employees in violation of Section 8(a)(3) and (1) of the Act. That is accurate, and I so conclude. McCormick Electrical Construction Co., Inc., 240 NLRB 418 (1979). In addition, the General Counsel claims that the eco- nomic strike had, by November 5, been converted into an unfair labor practice strike, by reason of Respondent's conduct of unilaterally reducing wages and benefits, dealing directly with employees, and failing to imple- " Brily admitted that at ino time after Noseember did Weldon pro- pose anything hut Respondent's adoption of andl cmpliance ith the NECA agreement h Respondent contends that there was no duty to bargain with the tinion because it representls supervisors Although riley testified that oine of Respontdent's supervilsrs was considered h) him and Weldon to be powered by the NECA aigreemnen and part of the unit, the appropri- ate unit expressly excludes supervisors At n time. other than i Re- sponlldelit's brief, as this issle raised. and, becaise it ;Ails tilt made a pe- cific defenise ill Respondenit', anlswer it sas iit lilig;lted In the circlrm- tances, I ind it 'sithout merit HAYDEN ELECTRIC INC. 605 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment the terms and conditions of the NECA agreement. I so conclude. ° II1. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, in- timate, 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 thereof. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices proscribed in Section 8(a)(5), (3), and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including recognizing the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit described above and complying with the terms and provisions of the NECA agreement. Having found that Respondent has unlawfully failed and refused to comply with the terms and provisions of the new collective-bargaining agreement negotiated by its duly designated multiemployer bargaining representa- tive, I shall recommend that Respondent comply there- with, retroactive to October 1, 1979, and continuing from that date. Interest shall be paid on wages'I owed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).12 Having found that Respondent unlawfully refused to reinstate its employees and terminated at least three of them on November 5, 1979, and made clear, by its failure to respond to the Union's November 3 telegram, by its posting a notice on November 5, and by the repeated statements of Briley of his intention not to rehire any of its former employees at the rates required under the newly negotiated agreement, I shall recommend that Re- spondent reinstate all of its former employees to their former positions or, if such positions no longer exist, to substantially equivalent positions (dismissing persons hired on or after November 5, 1979, if that becomes nec- essary), without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of wages and other benefits of employment they o The Union contends that Respondent committed an additional unfair labor practice by paying its replacements employees less than the amount of NECA's last offer to the Union and less than the amount pro- vided in the expired agreement, arguing that Leveld Wholesale. Inc., 218 NLRB 1344 (1975), was incorrectly decided and that Respondent should have paid to its employees at least the anlount of the last offer, prior to impasse. The General Counsel specifically does not press this claim, which in any event does not affect the monetary remedy which I have recommended. In light of that fact, it appears that the Union's conten- tions should more properly be addressed to the Board, should exceptions be filed to this Decision. I I Because the provisions of employee benefit fund agreements ;ire variable and complex, the Board does not provide at this adjudicatory stage, leaving the matter instead for the compliance stage, for the imposl- tion of interest at a fixed rate on unlawfully withheld fund payments. Merrywearher Optical Company, 240 NLRB 1213 (1979). 12 See, generally, Isis Plumbing & Ieating Co., 138 NLRB 716 (1962) may have suffered by reason of the discrimination prac- ticed against them, by paying them a sum of money equal to that which they normally would have earned absent the discrimination, less earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest as computed above. It is unclear from the record whether the approximately 18 employees hired by Re- spondent during the strike were permanent replacements. If all or some of them were, there will not be enough open positions to enable all of the discriminatees to obtain immediate reemployment. Therefore, I will rec- ommend that a preferential hiring list be established, but shall leave the details of that list for the compliance stage of this proceeding. Similarly, the question of who is enti- tled to backpay, and in what amounts, shall be left open for the compliance stage.' 1 Finally, because of the egregious nature of the viola- tions found herein, I shall recommend a broad cease-and- desist order. Hickmott Foods, Inc., 242 NLRB 1357 (1979). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 4 The Respondent, Hayden Electric, Inc., Pompano Beach, Florida, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Brotherhood of Electrical Workers, Local 728, as the ex- clusive representative of its employees in the following appropriate unit: All journeymen and apprentice electricians em- ployed by Respondent at its Pompano Beach, Flor- ida facility, but excluding guards and supervisors as defined in the Act. (b) Refusing to acknowledge that it is bound by the terms of a collective-bargaining agreement executed by the Union and Florida East Coast Chapter, N.E.C.A., Inc., effective on October 1, 1979, which agreement ex- pires by its terms on September 30, 1981, and any subse- quent agreement between the same parties until the expi- ration date of such subsequent agreement, unless during the term of the then subsisting agreement it shall have given timely written notice to terminate its authority to NECA to act on its behalf in collective-bargaining nego- tiations. (c) Discouraging membership in or activities on behalf of the Union, or any other labor organization, by termi- ' The remedy for the Laidlaw violation is the same as that which is encompassed under Abilities and Goodwill. Inc., 241 NLRB 27 (1979), en- forcement denied 612 F.2d 6 (Ist Cir. 1979). "' 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 derted waived for all purposes. HAYDEN ELECTRIC INC. 607 nating the employee status of continuing strikers or re- fusing to reinstate them, upon their unconditional offer to return to work, to existing vacancies, with full rights and benefits under the then subsisting collective-bargain- ing agreement, or by discriminating against them in any other manner with respect to their hire, tenure, or any terms or conditions of employment. (d) Unilaterally changing the wage rates and other terms and conditions of employment of the employees in the unit herein found appropriate, without bargaining with the Union. (e) Dealing directly with employees, rather than the Union, as to the employees' wages, hours, and other terms and conditions of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Forthwith implement the above-described agree- ment and give retroactive effect thereto from October 1, 1979. (b) Bargain with the Union as the exclusive bargaining representative of its employees in the above appropriate unit and, upon request of the Union, rescind the unilater- al changes of incentive increases and Respondent's medi- cal plan. (c) Make whole its employees for any loss of pay or other employment benefits which they may have suf- fered by reason of its refusal to implement the aforesaid agreement from October 1, 1979, with interest, in the manner set forth in the section of this Decision entitled "The Remedy." (d) Offer all economic and unfair labor practice strik- ers immediate and full reinstatement to their former posi- tions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, replacement employees hired on or after November 5, 1979, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner and with interest thereon to be computed as described in the section of this Decision entitled "The Remedy." If at the compliance stage of this proceeding, it is determined that Respondent had in- sufficient job openings available to be filled by all the strikers, then Respondent shall place the names of those strikers who may not be employed immediately on a preferential hiring list. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary or useful in analyzing the amount of backpay due under the terms of this Order. (f) Post at its Pompano Beach, Florida, facility copies of the attached notice marked "Appendix."'s Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 In the cvent that this Order is enforced b 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 Pursu- ant to a Judgment (of the United States Court of Appeals Enforcing an Order of tlhe National Labor Relations Board " HAYDEN ELECTRIC INC. 607