Freedman, S., Electric, Inc.

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. Freedman Electric, Inc. and International Broth- erhood of Electrical Workers, AFL-CIO, Local 35. Cases 39-CA-13 and 39-CA-22 June 9, 1981 DECISIONS AND ORDER On October 22, 1980, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed exceptions and a supporting brief, and the Charging Party filed exceptions and a sup- porting brief. The Respondent also filed a brief in response to the General Counsel's exceptions, and the Charging Party filed a brief in answer to the Respondent's exceptions and a brief in support thereof. ' 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,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. i The General Counsel filed a motion to strike the affidavit dated Dec. 15, 1980, attached as Exh. A to the Respondent's brief in response to the General Counsel's exceptions. The Charging Party filed a concurrence in that motion. The General Counsel contends that the affidavit was signed by Controller Michael Chambrello, and was not introduced as evidence at the hearing, thus is not part of the record in this proceeding. The affi- davit attempts to project the financial impact upon the Respondent as leading directly to its financial demise. We find, in agreement with the General Counsel, that Michael Chambrello's affidavit containing factual allegations was not subjected to cross-examination, was not introduced at the hearing, and thus is not a part of the record in this proceeding. See Sec. 102.45 (b) of the Board's Rules and Regulations. Series 8. as amend- ed. Accordingly, we grant the General Counsel's motion to strike Mi- chael Chambrello's affidavit from the Respondent's brief. Southern Flor- ida Hotel & Motel Association. and its Employer-Members The Esrate of Alfred Kaskel d/b/a Carillon Hotel; The Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club; lThe Estate of Alfred Kaskel d/b/a Doral Beach Hotel, 245 NLRB 561 (1979). Moreover, we note that the issue raised by the Respondent's affidavit is a matter more appropriately raised at the compliance stage of this proceeding 2 In adopting the Administrative Law Judge's finding that the Re- spondent's refusal to be bound by the 1979 through 1981 NECA multiem- ployer agreement with International Brotherhood of Electrical Workers. AFL-CIO, Local 35, did not constitute a violation of Sec 8(a)(5) and (1) of the Act, we do not adopt in full his rationale. We agree with his con- clusion that Retail Associates, Inc., 120 NLRB 388 (1958), does not re- quire that an employer who withdraws from a multiemployer bargaining relationship on timely and unequivocal basis, as here, has a duty to ex- press a willingness to bargain on an individual unit basis with the Union in order for its withdrawal from the multiemployer unit to be effective. In our view that is the meaning of that case, which stated the following (p. 395): We would accordingly refuse to permit the withdrawal of an em- ployer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the mutiemployer negotiations. The Administrative Law Judge incorrectly made reference to Freed- man's "Norwalk," Connecticut, office. We hereby correct this inadver- tence by substituting "Norwich" for "Norwalk." 3 The Administraive Law Judge found that five of the nine discrimina- tees were "constructively discharged" on May 31, 1979, and that four were "unlawfully discharged" on that same date (Conclusions of Law 9 and 10.) The amended complaint here alleged the layoff and/or discharge 256 NLRB No. 68 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, S. Freedman Electric, Inc., Hartford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. of all nine in par. 8(a) and the constructive discharge of all nine in par. 8(b). The Board finds it unnecessary to make that distinction on the facts of this case. In view of the record evidence which shows that the Re- spondent would no longer recognize the Union as the employees' bar- gaining representative, that "intolerable" changes would be made in the employees' terms and conditions of employment, and that the Respondent had already placed an advertisement in the newspaper for electricians on May 27, we find that the termination of employees Sikorowicz, Stosato, Coleman, and Robidoux was violative of Sec. 8(a)(3) and (1), since the Respondent discharged them for the same reasons it constructively dis- charged employees Broughton, Ingersoll, Baron. Silva, and Martiello, notwithstanding the four electricians were terminated by the Respondent before they quit or indicated their intention to quit, because the Respond- ent assumed they would also "quit " DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: This consolidated matter was heard before me in Hartford, Connecticut, on various dates on and between April 21 and May 1, 1980, upon an amended consolidated com- plaint, dated and issued January 30, 1980, and an amend- ment thereto of March 24, 1980, which alleged generally that S. Freedman Electric, Inc., Respondent herein, vio- lated Section 8(a)(l), (3), and (5)1 of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq., by unlawfully terminating the employment of nine, named employees, by unlawfully making certain unilateral changes in terms and conditions of employment, and by attempting, without lawful notice, to withdraw from a multiemployer bargaining unit in which it had been, and continued to be, a member. As an "alternative" pleading, the General Counsel alleges that even if Respondent suc- cessfully withdrew from the multiemployer unit, it nev- ertheless, thereafter, upon request, failed to bargain in good faith as an individual employer with the Charging Party, the above-captioned International Brotherhood of Electrical Workers, AFL-CIO, Local 35 (herein called the Union). Respondent's timely answers admitted var- ious allegations of the complaint, denied the unlawful termination of the alleged nine discriminatees, denied both any unlawful unilateral changes and its untimely withdrawal from the multiemployer unit as well as with- drawal of recognition from the Union as the collective- bargaining representative of its employees, and inter- posed 13 affirmative defenses. Several of the affirmative defenses, on the General Counsel's motion, were struck as insufficient in law to provide a defense. Others related The first charge, filed June 6, 1979, alleged violation of Sec. 8(a)(5) and (1) of the Act commencing December 22, 1978. A second charge, alleging violation of Sec. 8(a)(1), (31, and (5) was filed June 22, 1979. S. FREEDMAN ELECTRIC, INC. 433 to a possible compliance stage of the preceeding and still others were provable under Respondent's denials and did not constitute affirmative defenses. Respondent's affirma- tive defense requesting referral to arbitration was denied under the Board's contrary policy in cases involving, as here, alleged discriminatory discharges, violating Section 8(a)(3) of the Act, General American Transportation Co., 228 NLRB 808 (1977). At the hearing, all parties were represented by counsel and were afforded full opportunity to be heard, to intro- duce and meet material evidence, to call and examine witnesses, and to present oral argument. At the conclu- sion of receipt of the evidence, all parties waived oral ar- gument and filed posthearing briefs. Upon consideration of the entire record, including the briefs, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, S. Freedman Electric, Inc., a Connecticut corporation, at all material times has maintained its prin- cipal office and place of business in Hartford, Connecti- cut, where it is engaged in the business of electrical con- tracting. In the course and conduct of its regular annual business operations, Respondent purchases and receives at its Hartford location goods and materials valued at in excess of $50,000 which Respondent has caused to be shipped to said location directly from points located out- side the State of Connecticut. The complaint alleges, Re- spondent admits, and I find that, at all material times, it has been, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Il. THE L.ABOR ORGANIZATION INVOI.VED Local 35, International Brotherhood of Electrical Workers, AFL-CIO (herein called the Union), is ad- mitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Seymour Freedman, president of the Respondent since 1949, and Michael Chambrello, at all material times Re- spondent's comptroller, are admitted to be supervisors and agents of Respondent within the meaning of the Act. Respondent, one of the larger electrical contractors in the Hartford, Connecticut, area, first recognized the Union in 1926 and became a member of Central Con- necticut Chapter, National Electrical Contractors Associ- ation, Inc. (Hartford Division), herein called NECA or the Association, in 1949. Thereafter, Freedman was prominent in the labor affairs of NECA as an employer- bargainer in collective-bargaining sessions leading to successive collective-bargaining agreements with the Union covering "inside electricians." There were approximately 14 employer-members of the Hartford Division of NECA in December 1978 who employed about 600 unit employees as of that time, almost all of whom were members of the Union. On May 31, 1979, a critical date herein, Respondent em- ployed nine unit "inside electricians." Inside electricians are those electricians ordinarily working on or inside buildings as opposed to electricians working "outside" on electric power lines. On December 29, 1977, Respondent, consistent with the prior practice of all employers using NECA as their collective-bargaining agent, executed a "letter of assent" (G.C. Exh. 2(b)), effective December 5, 1977, which au- thorized NECA to act as Respondent's collective-bar- gaining representative concerning its inside electricians in collective bargaining with the Union. The letter of assent provided that it would remain effective until terminated by the employer with written notice given to NECA at least 150 days prior to the expiration date of the existing labor agreement. Pursuant to this letter of assent (and similar assents executed by other NECA members), NECA executed on behalf of its members, a collective- bargaining agreement for the I-year period June 1, 1978, through May 31, 1979 (G.C. Exh. 4). Thereafter, with that agreement approaching expiration on or about May 11, 1979, NECA and the Union reached full agreement on a further collective-bargaining agreement, covering the same unit of inside electricians who were employed by employers executing letters of assent. This later agree- ment was executed on or about June 1, 1979, to run from June 1, 1979, through May 31, 1981. In accordance with past practice, the employers, having executed letters of assent, did not sign the resulting collective-bargaining agreement. The principal issue in this case, aside from the alleged unlawful discharges and constructive discharges of all nine of Respondent's unit electricians on or about May 31, 1979, and the alleged unlawful unilateral changes commencing June 1, 1979, is whether Respondent re- mained a member of the Association and thereby became bound by the collective-bargaining agreement executed on June 1, 1979, the failure to abide by the terms of which violates Section 8(a)(5) of the Act; or, in the alter- native, if Respondent effectively withdrew from the As- sociation, whether it nevertheless subsequently refused to bargain in good faith with the Union on an individual basis, also a violation of Section 8(a)(5). Actual bargain- ing between NECA and the Union with regard to the collective-bargaining agreement executed on June 1, 1979, started in or about March 1979. B. Respondent's Attempted Withdrawal From NECA and Its Repudiation and Withdrawal of Recognition From the Union It is uncontested that Michael J. Marzano has been, at all material times, the managing director of NECA in the Hartford area. Similarly, Robert Murray has been, and is, the business agent in charge of the daily operations of the Union. On or about December 22, 1978, Seymour Freedman, Respondent's president, sent similar letters (G.C. Exh. 6; Resp. Exh. 5) dated December 22, 1978, to Robert Murray and Michael Marzano, with copies of each letter to the other party. The names of the addresses vary S. FREEDMAN ELECTRIC, INC 433 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, in the letter to the Union (G.C. Exh. 6), there is no expression of thanks to NECA as appears in the follow- ing letter to NECA (Resp. Exh. 5): Central Connecticut Chapter National Electrical Contractors Association 151 Meadow St. Hartford, Conn. 06114 Att: Mr. Michael Marazano Gentlemen: After careful thought, the Board of Directors of the S. Freedman Electric, Inc., Company, and its subsidiaries, have voted to sever its working ar- rangements with the International Brotherhood of Electrical Workers Local No. 35. Please consider this letter our official notification of our intent to terminate our association with I.B.E.W. Local No. 35 effective May 31, 1979. We wish to express our sincere thanks to NECA and to I.B.E.W. Local No. 35 for its help and co- operation during the past years, and extend to you our wish for continued success and prosper- ity in the years ahead. Very truly yours, S. FREEDMAN ELECTRIC, INC. s/s Seymour Freedman Seymour Freedman President SF/m cc: Local No. 35 I.B.E.W. (Mr. Murray) Called by the General Counsel as its witness, John E. Flynn, New England vice president of I.B.E.W., testified that while he did not see Respondent's December 22 letter to NECA (Resp. Exh. 5), he did see Respondent's similar letter to the Union (G.C. Exh. 6) and said that he construed it to be a request from Respondent to with- draw from the NECA agreement and from future NECA bargaining and agreements. There is no showing that NECA or any member thereof objected to or com- plained of Respondent's December 22 letters other than Marzano's desire that Respondent reconsider its decision to terminate its "working arrangements," i.e., its recogni- tion of the Union, inter alia, because of the deterimental effect of Respondent's withdrawal on other union con- tractors (Resp. Exh. 3). Freedman credibly testified that he wrote the above letter and was withdrawing from NECA (and thereafter was "going non-Union" and making changes in Respond- ent's employees' conditions of employment) because of business reasons, i.e., working under union conditions, made his business operations noncompetitive. The evi- dence is uncontested that thereafter in a series of meet- ings January 1979 through January 1980, Freedman met jointly with the Union and NECA wherein Respondent sought (and NECA and the Union rejected) special, indi- vidualized, more favorable contract terms from the Union as a condition of Respondent (a) rejoining NECA and (b) recognizing and dealing with the Union as statu- tory representative of his inside electricians. There is no dispute that Respondent abided by the substantive terms of the existing collective-bargaining agreement until its expiration on May 31, 1979. Had Freedman's withdrawal from NECA been unac- companied by his contemporaneous (December 22, 1978) notice of forthcoming rejection of the Union as his em- ployee's bargaining agent, no serious legal bargaining issue would have arisen. Here, however, as more fully disclosed below, Freedman and Respondent left no doubt concerning his December 22 letters that Respondent's otherwise timely withdrawal from NECA was to be ac- companied by a repudiation of any obligation to recog- nize the Union after May 31, 1979, contract expiration. For he and Chambrello repeatedly told the Union and his unit employees, commencing on or about January 18, 1979, that, commencing with May 31 contract expiration, he was going "non-union" and "open shop" and would then place new economically competitive terms and con- ditions of employment into operation. Indeed, the evi- dence shows that well prior to May 31, 1979, Respond- ent was bidding for work based on noncompliance with union contract conditions. The precise bargaining issue raised is whether and to what extent Respondent's December 22 conduct in re- jecting the Union commencing May 31, 1979, at the time of its otherwise timely notice of withdrawal from NECA, affects the lawfulness of the withdrawal. Put an- other way, the issue is whether an otherwise timely and unequivocal withdrawal is tainted by an anticipatory re- fusal to recognize and bargain individually with the Union. Discussion and Conclusions There is no dispute that the rules regarding withdraw- al of employers from multiemployer bargaining are gov- erned by Retail Associates, Inc., 120 NLRB 388, 393-395 (1958): Thus, the Board has repeatedly held over the years that the intention by a party to withdraw must be unequivocal, and exercised at an appropriate time. The decision to withdraw must contemplate a sin- cere abandonment, with relative permanency, of the multiemployer unit and the embracement of a dif- ferent course of bargaining on an individual-em- ployer basis. The element of good faith is a neces- sary requirement in any such decision to withdraw, because of the unstablizing and disrupting effect on multiemployer collective bargaining which would result if such a withdrawal were permitted to be lightly made. The attempted withdrawal cannot be accepted as unequivocal and in good faith where, as here, it is obviously employed only as a measure of momentary expedience, or strategy in bargaining, and to avoid a Board election to test the union ma- jority. ... Among other things, the timing of an attempted withdrawal from a multiemployer bargaining unit . . is an important lever of control in the sound S. FREEDMAN ELECTRIC, INC. 435 discretion of the Board to ensure stability of such bargaining relationships. We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bar- gaining unit, except upon adequate written notice given prior to the date set by the contract for modi- fication, or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargain- ing negotiations based on the existing multiem- ployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side is committed itself to the other, absent unusual circumstances .... The General Counsel argues, and I agree, that the phrase "adequate written notice" as it appears in Retail Associates refers back to the necessity for the notice to be "unequivocal notice." The General Counsel and Charg- ing Party, however, also argue () that Respondent's De- cember 22 letters to NECA and the Union were merely withdrawal of recognition by Respondent from the Union and that such withdrawal from reorganizing the Union cannot constitute an "adequate written notice" of withdrawal from NECA within Retail Associates. As I understand the General Counsel's further argument (2) the attempted withdrawal, whatever its timeliness and unequivocality, fails to satisfy Retail Associates because it was unaccompanied by Respondent's assurance of a will- ingness to bargain on an individual basis. Thus, the Gen- eral Counsel argues that the language in Retail Associates (at 394), wherein the Board speaks of the "element of good faith is a necessary requirement in any decision to withdraw," relates to the question of the party's motive in withdrawing; and that motive is as necessary an ele- ment in the further, ultimate conclusion of "adequacy of withdrawal" as are the elements of "timeliness" and "un- equivocality." With regard only to the element of "timeliness" there is no dispute that Respondent met not only the statutory requirement of notifying NECA and the Union of its desire to withdraw from bargaining through NECA prior to the commencement of negotiations, but also met its contractual obligation to NECA and its members to notify NECA not less than 150 days prior to the termina- tion date of the contract. Thus in the absence of any spe- cial circumstance (such as a question concerning repre- sentation existing even before the commencement of ne- gotiations which would make ineffective an otherwise timely notice of withdrawal, Roberts Electric Co., Inc., 227 NLRB 1312 (1977)), there is no question, and the parties herein do not dispute, that Respondent's Decem- ber 22 letter to NECA and the Union notifying them of its desire to terminate the relationship with the Union, was "timely." Cf. Groton Piping Corporation, 246 NLRB 99 (1979). With regard to the Retail Associates requirement of written "unequivocality" of the desire to withdraw from NECA bargaining, read as a whole, Respondent's De- cember 22 letters state that they are "official notification of our intent to terminate our association" with the Union and at the same time giving "thanks" to NECA and to the Union for past "help and cooperation." It is unnecessary to argue the issue of ambiguity in the letter for the International Union's vice president, Flynn, clear- ly construed the letter to the Union as constituting Re- spondent's desire to withdraw from collective bargaining through NECA whatever else the letter signified. Thus, whatever issue could be raised with regard to the clarity of Respondent's written expression of a relatively perma- nent desire to avoid future bargaining through NECA, the issue is resolved by the fact that, as above noted, Flynn, in particular understood the meaning of the let- ters and, in addition, there was neither an objection to the meaning or intent of the letters nor to the withdraw- al itself from either NECA or the members of the Asso- ciation. Cf. Teamsters Union Local No. 378, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Capitol Chevrolet Co.), 243 NLRB 1086 (1979).2 There remains the question of whether and to what extent there is a necessity of a willingness to bargain in "good faith" on an individual basis in the withdrawal rules under Retail Associates. Multiemployer bargaining is a consensual arrangement. Acme Wire Works, Inc., 229 NLRB 333, 335 (1977); Ship- owners Association of the Pacific Coast, 7 NLRB 102 (1938); J. F. Swick Insulation Co., 247 NLRB 579 (1980). The purpose of the sharp line in the Retail Associates rule in establishing the method and timing of withdrawal is that of "fostering and maintaining stability in bargaining relationships," The Carvel Company, 226 NLRB 111, 112 (1976). The necessity for clearcut rules relating to the re- lationship between and among the parties is to prevent whipsawing and any disruption of the multiemployer group for the purpose of bargaining leverage. Mor Pas- kesz, 171 NLRB 116, 118 (1968), enfd. 405 F.2d 1201 (2d Cir. 1969). However, in The Carvel Company, supra at 112, as well as in Acme Wire Works, Inc., supra at 335, and Groton Piping Corp., supra, various administrative law judges (and, in The Carvel Company, supra, the Board), have suggested not only that an employer may withdraw without the Union's consent, prior to the start of bar- gaining, by giving unequivocal written notice of intent to abandon the multiemployer unit, but, apparently, as a further requirement, have added: "and to pursue negotia- tions on an individual employer basis." Although these statements appear either in dictum or as alternative hold- ings, and thus are not required specifically as part of the rationale in deciding the cases, their repetition requires some discussion and observation especially where, as in Groton Piping Corp., supra, the Board apparently accept- ed the Administrative Law Judge's statement that the Retail Associates rule requires for "effectiveness," as part of the withdrawal mechanism, that the party seeking withdrawal must "set forth its sincere willingness to pursue negotiations on an individual basis." In Groton 2 It is undisputed that Freedman said that he was going "non-union" in later discussions with the Union and NECA and also that, perhaps, in a year or so, if his nonunion operation did not work out, he would return to the union status I do not regard Freedman's speculative future plans as a whipsaw tactic such as to make his otherwise timely withdrawal "equivocal" within Retail Associates. S. FREEDMAN ELECTRIC, INC. 435 - 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Piping Corp., supra, since the employer had unlawfully recognized another union, that employer was unwilling and unable to state in its defective and equivocal notice of withdrawal (which was not served on the incumbent Union) that it was indeed willing to bargain with the Union (since it has already recognized another union). In this posture, the Administrative Law Judge in Groton Piping Corp., supra, asserted that not only was the notice of withdrawal defective, but the Retail Associates rule contained the further obligation, on the part of the with- drawing employer, to notify the Union of the withdraw- ing employer's willingness to bargain on an individual basis. On the other hand, the First Circuit's opinion, in The Carvel Company v. N.L.R.B., 560 F.2d 1030, 1034-35 (1977), demonstrates that that court viewed the Retail Associates rule more narrowly: The application of the Retail Associates rule over the last two decades has given it sufficient precision of formulation to leave action under it unembar- rassed by uncertainty and misgivings about possibly vagarious administrative applications. No more is necessary to operate safely in its domain of oper- ation than advertence to the notice dates in the cur- rent bargaining agreement. Freedom of action is un- controlled as long as it is unequivocal and timely. While it is true, as above noted, that even the require- ments of timeliness and unequivocality may be limited by the existence of external legal circumstances, e.g., Rob- erts Electric Co., Inc., supra, it would appear that the Retail Associates rule contains no obligation, insofar as the withdrawal mechanism goes, for the withdrawing party, as a matter of Law, to give notice of its willing- ness to bargain on an individual basis in good faith. I fur- ther conclude that the "good faith" requirements in the statement in Retail Associates, supra, relate only to the ne- cessity of good faith in the unequivocality and timing of the withdrawal itself. In Retail Associates, a labor organization was found to be attempting to withdraw from multiemployer bargain- ing as a temporary tactic to prevent an employer from testing the Union's majority status in an election. The Board held that there was no "good faith" in the with- drawal in that the withdrawal was merely tactical and therefore not "unequivocal." Thus, in Retail Associates, the expression "good faith" relates back, not to the moti- vation of the withdrawing party regarding his willing- ness to bargain on an individual basis, but, rather, only to the finding that the withdrawal was not of a permanent nature and merely tactical in order to achieve ends detri- mental to the otherwise stable multiemployer bargaining obligation. In short, "good faith" measures only the un- equivocal nature of the withdrawal. Since the withdraw- al was tactical, it was not "unequivocal." Moreover, to add the obligation of "good faith" to the Retail Associates rule, in the sense that the withdrawing employer, for instance, must demonstrate a good-faith willingness to bargain on an individual basis, would lead the Board into unnecessary and complex investigations of irrelevant nature and would undermine the basic consen- sual element. In addition, to require a nonconsenting, otherwise withdrawing, employer to abide by the terms of a multiemployer collective-bargaining agreement after he has otherwise timely and unequivocally withdrawn (whatever his intent regarding future individual bargain- ing) could be punitive. Lastly, to require proof of "good faith" assurance that the employer will bargain on an individual basis as a condition precedent to permitting his otherwise timely and unequivocal withdrawal may bring the employer into an anomolous position as a matter of law. In this regard, it is not difficult to foresee cases where the with- drawing employer, under no circumstances, could give the assurance that he was willing to bargain in good faith. Putting aside cases of "special circumstances," a common example of such a situation would be the case where a withdrawing individual employer wishes to withdraw because of a substantial and good-faith doubt of his employees' desires for continued representation by the incumbent labor organization. In view of the fact that, in a multiemployer unit, majority status is the ma- jority of employees in the overall, multiemployer unit, N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), the only way that the individual employer may test the continued lawful representation status of the labor organization is timely to withdraw and then, upon the labor organization's request for further bargaining on an individual basis, file an RM petition to test the major- ity status in the individual, as opposed to the multiem- ployer, unit. For all the above reasons, and notwithstanding that the obligation to bargain on an individual basis often fol- lows lawful withdrawal, I am convinced that there is no requirement in the Retail Associates rule for a withdraw- ing employer who withdraws on a timely and unequivo- cal basis, to "set forth its sincere willingness to pursue negotiations on an individual basis," as apparently re- quired in Groton Piping Corp., supra. I conclude that the Board's Retail Associates rule is limited, absent special circumstances, as above noted, to the limits described by the First Circuit in its decision in Carvel, supra.3 I further conclude that Respondent herein, despite its withdrawal letters of December 22, 1979, asserting its withdrawal of future dealings with and recognition of the Union, repre- sented a timely and unequivocal desire to withdraw from membership in and bargaining through NECA and that the withdrawal from NECA was effective on December 22, 1978, notwithstanding the existence of any additional motive. This withdrawal relieved Respondent of an obli- gation to execute or abide by the terms of the new NECA-Union collective-bargaining agreement effective June 1, 1979, through May 1, 1981. 4 Respondent's with- 3 1I am not adopting a court rule inconsistent with the Board's. I am, of course, bound by the Board's view, Iowa Beef Packers, Inc., 144 NLRB 615 (1963). I conclude that the Board rule is concisely stated by the Carvel court. 4 In view of this disposition, I need not reach or decide the further questions relating to whether the parties' post December 1978 meetings and discussions on the question of the conditions, if any, under which Re- spondent would return to bargaining through the Association and execute a NECA contract amounted to "acquiescence" on the part of the Union Continued S. FREEDMAN ELECTRIC, INC. 437 drawal being timely and unequivocal, its refusal to be bound by 1979-81 agreement does not constitute a viola- tion of Section 8(a)(5) and (1) of the Act. I therefore recommend that that part of the consoli- dated complaint, appearing in the amendment to the amended complaint, dated and issued March 24, 1980, by the Officer-in-Charge for Subregion 39, consisting of "al- ternative" allegations in paragraphs 2(A) to (M), which posit an 8(a)(5) violation on Respondent's failure to law- fully withdraw from NECA be dismissed. C. Alleged Discharge and Constructive Discharge of Nine Unit Employees in Violation of Section 8(a)(3) of the Act The evidence is undisputed that the parties, in the period March 1979 through January 9, 1980, met on nu- merous occasions; that the Union was desirous of Re- spondent executing the NECA agreement which was being negotiated in the spring of 1979, and, after June 1979, had been executed; that Respondent, over and over, mentioned that it was "going non-union"; and that various economic considerations had caused it, com- mencing May 31, 1979, to withdraw from NECA and to repudiate its obligation to recognize the Union in its status as its employees' collective-bargaining representa- tive. The evidence is in dispute, however, concerning whether, and to what extent, Respondent desired to retain its unit of employees employed prior to May 31, 1979. In this regard, there is no dispute that Respondent, on several occasions prior to May 31, 1979, (a) inquired of the Union whether the Union would permit it to retain in its employ the existing employees, all of whom were members of the Union; and (b) stated that it wished to retain at least some of the employees. There is no dis- pute that the Union failed to give Respondent assurance that the Union would not object to the continued em- ployment of union members if Respondent failed to "return to the fold"; i.e., bargain through NECA and abide by the union contract. Lastly, the facts show that in or about May 24, 1979, Respondent, having failed to receive union assurance for Respondent's continued em- ployment of its union employees, placed an advertise- ment (G.C. Exh. 10) in a Hartford newspaper wherein it advertised for journeymen inside electricians. The adver- tisement, appearing Sunday, May 27, 1979, contained the following: in individual bargaining with Respondent, compare: I. C. Refrigeration Service, Inc., 200 NLRB 687, 691 (1972), with Hartz-Kirkpatrick Construc- tion Co., Inc., 193 NLRB 863 (1971), and see Teamsters Union Local 378 (Capitol Chevmlet Co.). supra, (consent of the multiemployer group re- quired to permit untimely withdrawal) or with the further question whether evidence of these further meetings may not be used to prove the Union's "acquiescence" in individual bargaining because the parties met pursuant to documents executed by all parties (except the General Coun- sel) wherein they "reserved their rights" not to use whatever transpired in these meetings as evidence to be introduced in any National Labor Re- lations Board proceedings or to be divulged to the National Labor Rela- tions Board. I recognize as a separate issue whether these meetings amounted to re-recognition of the Union and good-faith individual bar- gaining. ELECTRICIANS WE ARE NOW INTERVIEWING CONNECTICUT LICENSED JOURNEYMAN ELECTRICIANS FOR COMMERCIAL AND INDUSTRIAL INSTALLATIONS THROUGH CONNECTICUT WE OFFER: HOURLY RATES FROM $8.00-$12.00 HR. 40 HOUR WORK WEEK PAID MEDICAL BENEFITS EARNED HOLIDAY AND VACATION PLAN STEADY EMPLOYMENT FOR INFORMATION CALL S. FREEDMAN ELECTRIC, INC. The alleged unlawful discharge and constructive dis- charge of Respondent's nine, union-member inside elec- tricians on May 31, 1979, is based on the following events. In a telephone call from Robert Murray to Seymour Freedman sometime after December 22, 1978 (the date of Respondent's dispatch of the withdrawal letters to NECA and the repudiation letter to the Union) and before January 1, 1979, Murray, having read the letters, asked for a meeting with Freedman to discuss the matter. Michael Chambrello stated that on January 17, 1979, he attended the meeting requested by Murray (held at the NECA office in Hartford, Connecticut) along with Sey- mour Freedman, Murray, Robert Preston, a union offi- cial, and Michael Marzano of NECA. Murray asked whether Freedman was "serious" in withdrawing from NECA and why Respondent was ter- minating its membership in NECA as the bargaining agent. Freedman answered that Respondent could not live under the collective-bargaining agreement and remain competitive. When Murray asked Freedman what items in particular Freedman found to cause the lack of competitive status, Freedman named five items: (1) lack of flexibility of pay rates; (2) a better apprenticeship ratio (a greater number of apprentices per journeymen on the job); (3) elimination of travel pay; (4) the need for a 40- hour workweek with straight-time pay for 40 hours rather than the contract obligation of a 36-hour week with overtime permitted only in emergency situations and even then paid at premimum rates; (5) increased pro- ductivity. Chambrello credibly testified that there was no response from Murray except that Murray would take the matter up in the future. Murray recalled that at this and other meetings with Freedman, rather than Cham- brello or Freedman demanding these five economic items as conditions for rejoining the "flock" (a description con- tinually used by Murray in requesting information con- cerning the items which would be required by Respond- ent in order for it to return to both recognizing the Union and bargaining through NECA), Chambrello and Freedman listed these five items as the reasons why Re- spondent was going "nonunion." Murray particularly denied that Respondent demanded these five items as conditions for returning to bargaining through NECA or returning to recognizing the Union. Upon my observa- tion of Freedman and Murray while testifying the impre- S. FREEDMAN ELECTRIC. INC. 437 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cision of language and the intrinsic circumstances, I con- clude that Freedman mentioned these items for both pur- poses: to justify going "nonunion" and as the basis for re- joining the "flock." In any event, Murray asked Freed- man if Respondent's employees were aware that Re- spondent had ceased bargaining through NECA and was "going nonunion." Murray and Freedman used the ex- pressions "going nonunion" or "going open shop" inter- changeably at this and subsequent meetings. Both expres- sions, I conclude, meant that Respondent would neither recognize the Union as statutory bargaining agent nor execute a union contract. In response to this question, Chambrello told Murray that he was going to hold a meeting with the Respondent's employees the next day and tell them of Respondent's plans. At noon of the next day (on or about January 18, 1979), Chambrello addressed six unit employees in Re- spondent's Hartford office. Present were Stanley Inger- soll, William Broughton, Antonio Silva, Herbert Laflin, Edward Baron, Donald Martorelli, and various other persons including Seymour Freedman's son, Mark Freed- man, Respondent's estimator, Paul Giangrave, Jr., and Respondent's job superintendent, William Bigl.5 Chambrello testified that he told them that he was ter- minating Respondent's association with NECA; that Re- spondent probably would not enter into a new contract thereafter through NECA; that Respondent would like to keep them as employees; that he would not decrease their wages or benefits, but would pay all benefits that they were receiving directly to them or, if he could con- vince the Union to accept contributions, pay the moneys into the union funds to which Respondent had therefore previously contributed under the expiring contract. I do not credit Chambrello's testimony of Respondent keep- ing all benefits for the employees in view of the contra- dictory testimony of General Counsel's witnesses herein described, infra, which I credit. 6 In any event, Cham- brello made no suggestion to the employees that Re- spondent was going to cease recognizing or dealing with NECA until May 31 contract expiration. Chambrello asked the employees to continue in Respondent's employ and told them that there would be further meetings with the Union to see what arrangements might still be worked out. In response to an employee's question whether Respondent was going "nonunion" or "open shop," Chambrello said that Respondent would be going nonunion or open shop. In response to another question from employees concerning the kind of medical program that they could expect to be working under after May 31, Chambrello said that he did not know, but he would get an excellent plan for them. He told the employees that, if they remained with Respondent after the May 31 termination of the collective-bargaining agreement, they would be working under a 40-hour a week rather than 36 hours. IFour other electncians who were terminated on May 31, 1979, were hired after this speech. 6 Respondent did not call Bigl or Mark Freedman to corroborate Chambrello's version of his statement to the six employees at this meet- ing. Although Giangrave testified in rebuttal, he failed to testify on this matter. Finally, Chambrello then told the employees to think the matter over; that it was not necessary for them to give him an answer at this time (in January 1979); but to let him know in a reasonable time whether they would remain in Respondent's employ or leave. In regard to this Chambrello meeting with the six em- ployees, the General Counsel called employees Silva, In- gersoll, Broughton, Baron, and Martorelli. Laflin died in February 1979. Silva, who spoke only Portuguese and did not under- stand Chambrello, was ultimately given a termination slip by Respondent's estimator, Giangrave, on May 31, 1979. He had told Giangrave, who also enjoys the title project manager, that he would not remain in the employ of Respondent but would leave because of his reliance on union membership and its benefits. Stanley Ingersoll credibly testified that Chambrello told him that he was satisfied with their work and that they were welcome to stay with Respondent if they so desired; that Respondent would not be able to carry a full benefit program for them which they presently en- joyed, especially the pension fund; that there would be no pension fund, but there would be a new major medi- cal program. Ingersoll also recalled that Chambrello said that as of May 31, 1979 (with the termination of the ex- isting collective-bargaining agreement), the door would still be open for negotiations and he was not 100 percent sure that Respondent would not negotiate with the Union; that Respondent was not competitive and could not compete against nonunion shops and felt that Re- spondent had to make a change; and that Respondent could not compete because of the additional costs re- quired to be paid employees under the union contract. Finally, Chambrello told them that he wanted to hear from them when they made up their minds concerning whether they wanted to continue to work for Respond- ent. Chambrello told them that if they elected to stay with Respondent, they would get the same pay as before. Ingersoll could not recall that Chambrello said anything regarding direct payments to them of contributions which Respondent had previously paid into the Union's funds pursuant to the collective-bargaining agreement. I find that Chambrello made no such assurance or offered direct payment to employees of moneys Respondent was contributing to the union pension fund. Around the first of May, Ingersoll told Chambrello that he had made up his mind and decided to remain a member of Local 35. Chambrello said that he appreciated Ingersoll's wishes and there were no hard feelings. On May 31, Ingersoll received his pay and a layoff slip. It was stipulated that all the unit employees, the nine alleged discriminatees, received layoff slips from Respondent on May 31; that the reason on the layoff slip for each layoff was "lack of work"; and it is uncontested that, at the time of layoff, there was much work to be done on the jobs that these employees were working on. It is further uncontested that the reason for the "layoffs" advanced on the layoff slips was untrue and was given to the employees only so that they could qualify for the receipt of unemployment insurance benefits under the laws of the State of Con- necticut. Murray and Freedman, however, contradict S. FREEDMAN ELECTRIC, INC. 439 each other concerning who wanted or insisted on this untrue statement on the slip. It is unnecessary to resolve this issue. William Broughton credibly recalled that, at the Janu- ary 18 meeting, Chambrello said that things had not worked out as they had figured and that Respondent was going "nonunion"; that Chambrello offered the employ- ees a plan if they wished to remain: there would be no pension, but there would be a health plan; and they would work with approximately the same wages. Like Ingersoll, he recalled that Chambrello asked the employ- ees to inform him of their decisions to remain with the Respondent but not at the meeting. Broughton, sometime before May 1979, told estimator Giangrave that he was not staying with Respondent if the Respondent did not remain with the Union. At the end of May 1971 he was given his pay and the above termination slip. Martorelli testified that Chambrello said that Respond- ent was going "open shop"; that the wages would be the same; and there would be some type of insurance policy. Martorelli also recalled nothing being said about pen- sions but recalled that Chambrello said that he would like to hear from the employees as to their intentions whether they would stay or leave. Martorelli never told Chambrello of his decision, but on May 31, like the other inside electricians, he was terminated with a similar ter- mination slip. Finally, Edward Baron recalled that Chambrello told them that Respondent was "thinking" of going open shop; that Respondent had sent a letter to Local 35; and that the employees had 6 months to make up their minds concerning their willingness to remain with Respondent. Chambrello told them that he was still not sure if Re- spondent was going open shop or "Union." He recalled that Chambrello said that they might make as much as $18,000 a year if they remained with the Company. In particular, he recalled that Chambrello said that the em- ployees would have to give up certain benefits if there were an open shop, but he recalled that there were no specific benefits mentioned. In the last week of May 1979, Baron telephoned Chambrello and told him that he would not remain in Respondent's employ because he would lose too many benefits including his pension. On May 30, 1979, the day before the discharges, Ken- neth Leech, assistant business agent of Local 35, instruct- ed all of Freedman Electric's employees to attend a union meeting early the next morning at the union office. At or about 4 p.m., however, on May 30, on Murray's uncontradicted, corroborated and credited testimony, he telephoned Freedman who was in his Norwalk, Con- necticut office but reached only Freedman's office cleri- cal at that phone number. Murray told her to tell Freed- man that the Union took no position concerning Re- spondent's continued employment of its members. This telephone call resulted from the above-noted inconclu- sive answer which the Union gave Respondent upon Re- spondent's repeated requests to retain the Union's mem- bers as its employees. It should be noted that during May 1979 Respondent, on several occasions, told the Union that, in view of the Union's failure to assure it of continued employment of union members, it would advertise for replacement elec- tricians. By May 27, 1979, as above noted, there ap- peared in a Hartford newspaper the advertisement offer- ing employment to Connecticut-licensed journeymen electricians with hourly rates from $8 to $12 per hour: 40-hour workweek; paid medical benefits; earned holiday and vacation plan. Nothing appears in the advertisement regarding a pension. I find that Murray's 4 p.m., May 30, 1979, telephone call to Freedman in Norwalk resulted from a decision reached by the Union, under the direction of Vice Presi- dent Flynn, to seek legal advice concerning the Union's position on Respondent's retention of union members in its employ after bargaining had theretofore failed to bring Respondent's "back into the fold" i.e.: signing the new NECA agreement. The Union succeeded in obtain- ing this advice immediately prior to Murray's call to Freedman. On May 31, pursuant to Kenneth Leech's direction of the prior day, all of Respondent's unit employees met with Murray at the Union's office from 7 a.m. to about 10 a.m. The evidence of what occurred there is unsure. What is clear is that there was no evidence that Murray told them they could not work for Respondent. It ap- pears that Murray told the employee-members that he was still trying to get Respondent to execute the NECA agreement. Chambrello asserts, and Murray denies, that sometime during that meeting, Murray telephoned Chambrello in Respondent's Hartford office and made certain abrupt remarks particularly including a Murray inquiry whether the parties might still work out their dif- ferences and have the employees remain in employment. Murray denies any such call. The employees sitting near Murray noted that he used the telephone but none of them could determine who he called or the substance of any conversation. Murray failed to identify who, if anyone, he called. In any event, about 7:50 a.m. on May 31, 7 Murray again telephoned Freedman in Norwalk, Connecticut, and this time reached him. As noted hereafter, Freedman asserts, and Murray denies, that Murray told him (1) the Union would not allow Respondent to retain as its em- ployees the union members and (2) asked him for a favor: to provide the employees with termination slips showing that they were laid off for lack of work. Con- tradicting Freedman, Murray asserts that he told Freed- man that he understood Freedman was terminating the employees, and, when Freedman affirmed that he was, Murray asked him what kind of termination slip he was giving. When Freedman said that he was giving them a slip which would permit them to qualify for Connecticut unemployment compensation, by putting "lack of work" on the slip, Murray said that he sarcastically answered "that's kind of you." GC. Exh. 13, the telephone company record of the Union's long- distance phone calls, corroborating Murray's testimony, demonstrates that the Union telephoned Norwalk. Connecticut, on May 30 at 4:13 p.rn and spoke for about 1 minute. This relates to Murray speaking to Freed- man's office clerical. The same exhibit shows that, on May 31, at 7:40 am., the Union made a telephone call to Norwalk which lasted I minute Both phone calls were made to Respondent's phone number in Norwalk at which Freedman was located S. FREEDMAN ELECTRIC, INC 431? 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 10 a.m. on May 31, the inside electricians left the union meeting, reported to work, did perform work, and were terminated at the end of the day with slips showing termination for lack of work. Thus, there was mutually contradictory testimony by Murray, Freedman, Chambrello, and Giangrave concern- ing whether, according to Respondent's witnesses, Murray said that the Union would not permit its mem- bers to work after May 31 in a nonunion shop; and, ac- cording to Murray, that he explicitly told Freedman on May 30 (through contact with the office clerical) and di- rectly on May 31 that the decision of whether to contin- ue the Union's members in employment was a decision up to the employees and that the Union would take no position. There is no dispute that in meetings with the Union after June 1, 1979, Freedman and Chambrello told the Union of Respondent's continuing success in bidding jobs with nonunion rates and the amount of money to be made under these circumstances. In my view of this matter, the resolution of such conflicting testimony is un- necessary and not controlling. On this record, Respond- ent, in my view, had no legal right to terminate the nine journeymen regardless of the Union's position or state- ments. Indeed, it is no defense to Respondent that the Union may have "caused" or "attempted to cause" Re- spondent to terminate the employees because of consid- erations involving their membership in or loyalty to the Union. See Section 8(b)(2) of the Act. Whatever the law- fulness of the Union's actions, a matter not before me, Respondent may not defend its own discriminatory con- duct on any union causation. In any event, Respondent's initial repudiation of the Union, its continued statements of a desire to operate on a nonunion basis, and its termi- nation of the nine employees, all union members, are acts consistent with an unlawful discriminatory motive of its own, quite apart from any union action. That Respond- ent desired to retain the employees-or at least some of them-under diminished conditions does not seriously mitigate against this. It gave the employees the unlawful choice of quitting or working under poorer conditions. Also, as noted hereafter in the text, in determining the factual issue of whether the Union, by its conduct, led Respondent to believe that the Union would not permit its members to continue to work with Respondent if Re- spondent failed to have contractual relations with the Union, I was adversely impressed, in particular, by Re- spondent's failure to call as its witness (or to explain the failure) the office clerical in Seymour Freedman's Nor- walk, Connecticut, office who, on the uncontradicted testimony of Union Agent Murray (corroborated by the telephone company's records) received Murray's phone call on May 30 and in Freedman's absence, was advised that the Union "took no position" with regard to the continued employment of the inside electricians. I would and do draw an adverse inference from the failure of Re- spondent to meet and deny Murray's corroborated testi- mony. Such adverse inference necessarily affects Freed- man's subsequent testimony with regard to the disputed conversation on May 31 both on the telephone and alleg- edly in person between Murray and Freedman in Freed- man's Norwalk office. The employees reporting for work on May 31 after attending the union meeting is too am- biguous to forcefully support or detract from this infer- ence, although it is not inconsistent with the Union's po- sition that it never prevented the employees from work- ing for Respondent. 1. The constructive discharges of Ingersoll, Broughton, Baron, Silva, and Martiello In Haberman Construction Co., 236 NLRB 79, 87 (1978), enfd. 618 F.2d 298 (5th Cir. 1980), the Board held that an employer's announcement to union-member em- ployees covered by a collective-bargaining agreement that the employer was going "open shop" violated Sec- tion 8(a)(l) of the Act and that where, as here, it was coupled with a statement that it would no longer pay fringe benefits (contributions to the Union's welfare and pension funds) and the employees thereafter quit because of such conduct, such "quits" constituted constructive discharges in violation of Section 8(a)(3) and (1) of the Act. The Board held that such changes in the terms and conditions of employment of these employees met the Board's requisite qualification for the existence of a con- structive discharge of "intolerable" change in employee working conditions. See Johnson Electric Co., 196 NLRB 637 (1972). Such conduct tends to discourage union membership of employees. Thus, the two conditions in the face of employee "quits" necessary for a conclusion of "constructive discharge" (a) intolerable changes in conditions; and (b) conduct to discourage union member- ship, exist in this case as in Haberman Construction Co., supra. See N.L.R.B. v. Haberman Construction Company, 618 F.2d 288 (5th Cir. 1980). In the instant case, no credibility resolution is neces- sary for these issues. Here, Chambrello admitted that he told the employees that Respondent was going "open shop" or "nonunion" which meant to these employees then covered by a collective-bargaining agreement and union recognition that Respondent would no longer rec- ognize the Union as their statutory collective-bargaining representative after May 31; that he was giving them a choice of remaining employees on Respondent's unilater- ally imposed terms (nothing here of bargaining first with the Union) or leaving; that, thereafter, commencing May 31, they would have no pensions and have to work a 40- hour week in order to remain in Respondent's employ, and be paid straight time for the 40 hours rather than to work only 36 hours and receive premium pay if they worked after 36 hours. These are "intolerable" changes in the terms and conditions of employment under Haber- man Construction Co., supra, and conditioning their post- May 31 employment (albeit without actually telling them that they would be unwelcomed if they rejected these conditions) on their accepting such terms was sufficient to cause constructive discharges of the five employees (Laflin died) who were offered Chambrello's choice and ceased work on May 31 rather than work under these conditions. Contrary to Respondent's assertion that these voluntary cessations of work were not constructive dis- charges, I conclude that the May 31, 1979, terminations of Stanley Ingersoll, Edward Baron, William Broughton, Antonio Silva, and Donald Martiello, who told Respond- S. FREEDMAN ELECTRIC, INC. 441 ent they would not work under those conditions amount- ed to constructive discharges. It might be noted, in passing, that, even if Chambrello had assured the employees that they could retain their union membership while working in a nonunion shop under nonunion conditions, it would not alter the conclu- sion that the employees were constructively discharged since the choice of working under otherwise unilaterally and unlawfully imposed conditions of employment equal- ly discourages union membership. See Electric Machinery Company, 243 NLRB 239 (1979); 44 Ann Rep. 106 (1979). The Board does not require, as a prerequisite for finding constructive discharges, that the employer's uni- lateral action required those employees to abandon or lose their union membership. Rather, forcing employees to make a choice of working under illegally imposed conditions or quitting their employment discourages union membership almost as effectively as actual dis- charge. To quit under those conditions demonstrates a constructive discharge as well as an employer's ultima- tum. Thus the above five employees, as alleged, were constructively discharged in violation of Section 8(a)(3) and (1) of the Act. 2. The discharges of Sikorowicz, Stosato, Coleman, and Robidoux I further conclude that the remaining four employees terminated that day, Andrew Sikorowicz, Louis Stosato, Frances Coleman, and Henry Robidoux were unlawfully discharged in violation of Section 8(a)(3) and (1) of the Act. See McCormick Electrical Construction Co., Inc., 240 NLRB 418 (1979). Comptroller Chambrello testified that Murray tele- phoned him about 9 a.m. on May 31, asked if they could work out a plan to have Respondent keep the employees, and then abruptly said that he would call again. Accord- ing to Chambrello, Murray did not call again. Murray denies any such telephone call. As above noted, Murray testified that he telephoned only Freed- man that morning while Freedman was in Norwalk, Connecticut, and said that he told Freedman that he un- derstood Freedman was terminating the employees that day. According to Murray, Freedman admitted that he was terminating the employees that day. Freedman denied any such statement. Murray further testified that in that conversation with Freedman, which Freedman admits to have occurred that morning, Murray denied asking Freedman to put "lack of work" on the separation notices to the inside electricians. As above noted, in view of Respondent's failure to produce or adequately explain the absence of the office clerical in regard to the unden- ied Murray telephone call to the clerical on the after- noon of May 30, I would ordinarily credit Murray's ver- sion of the conversation wherein he said the Union took no position and Freedman said he was terminating the employees. I need not, however, resolve this issue but, as noted hereafter, credit Freedman, arguendo. It should be noted, moreover, that an hour or so after Murray allegedly telephoned Chambrello, in the morning of May 31, Freedman testified that he telephoned Cham- brello to advise Chambrello of Freedman having re- ceived a phone call from Murray wherein Murray alleg- edly questioned whether Respondent was going to lay off the employees. Freedman and Chambrello, in mutual corroboration, testified that in Freedman's call to Cham- brello, Chambrello told Freedman of Murray's prior call to him. Over the General Counsel's objection, I permit- ted Giangrave's hearsay corroboration of the fact that Murray, indeed, did telephone Chambrello that morning, contrary to Murray's denial. But, if Murray, contrary to his denial, did telephone Chambrello on the morning of May 31 inquiring whether there was some way whereby the parties could keep the inside electricians working for Respondent; and if, according to Chambrello's and Freedman's testimony, Chambrello about 1 hour thereaf- ter told Freedman of Murray's telephone conversation questioning whether a plan could be devised to keep the employees, then the record is barren of any explanation why Freedman did not, then and there, after receiving on the morning of May 31 from Chambrello the news of Murray's call to Chambrello, try to contact Murray in a last-minute effort to keep the nine inside employees working for Respondent. This, according to Respond- ent's repeated testimony, was a most important object for Respondent. Instead, Freedman terminated the employ- ees. Such conduct would be clearly consistent with Mur- ray's version of a later May 31 morning visit to Freed- man (after his earlier May 31 telephone call), wherein Murray asked Freedman if there were any "concessions" to resolve the problem and allegedly Freedman answered "we're going through with it." Freedman denied that any such visit by Murray took place. Further, Freed- man's failure to contact Murray, crediting arguendo Freedman and Chambrello, to seek a last-minute device to keep the union employees is consistent with Respond- ent's success in attracting nonunion employees in the 4- day period following its May 27 newspaper advertise- ment. It is also consistent with Freedman's and Cham- brello's later statements that Respondent was enjoying a new, large volume of business generated by bidding on a nonunion basis. As above noted, Murray testified (as corroborated by the telephone bill) that he reached Freedman's office clerical on the day before and told her that the Union took no position on whether Respondent should retain the employees. While Freedman may have inferentially denied knowing of this phone call, he did not appear in rebuttal to clearly deny it, nor, more important, was the office clerical produced to deny Murray's testimony. My view of Respondent's failure to adequately explain its failure to produce its clerical to deny Murray's alleged message is dispositive. On resolution of this credibility issue, I have taken in to account Respondent's argument (Resp. Br., p. 46) that the General Counsel's witnesses (Broghton and Baron) testimony shows that Murray was still meeting with them at the Union's office on the morning of May 31 when Murray alleged that he was in Norwalk talking with Freedman. Whatever the accuracy of their testimony on the question of time, often notori- ously unreliable, I conclude that this element in favor of Respondent's argument that Murray did not speak with Freedman on the morning of May 31, as he testified, is overbalanced by Respondent's failure to produce the S. FREEDMAN ELECTRIC, INC. 441 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical and by the above-circumstantial evidence demonstrating reasons whereby Respondent desired to rid itself of employees because of their affiliation and ac- customed wages and conditions of employment. I therefore conclude that the above four employees were unlawfully discharged on May 31 even if Freedman is credited and that Murray repeatedly told him that the Union would not permit the employees to work for Re- spondent without a union contract. Instead of permitting the inside electricians, other than the five who had al- ready been constructively discharged in their "quits," to quit (which might have occurred), Respondent terminat- ed them. There is no showing that these employees com- municated an intent to quit to Respondent or that Re- spondent inquired of these employees if they desired to remain regardless of any Union sentiments and unhappi- ness. Respondent may have assumed that these employ- ees would no longer work and placed its advertisement in the Hartford newspaper anticipating their quitting. The employees had no opportunity to quit. I conclude that at the very least Respondent was obliged to inquire of these employees, notwithstanding the Union's state- ments and sentiments, whether the employees themselves intended to quit. Failing that, as here, Respondent could not lawfully terminate them speculating-perhaps reason- ably-that the employees would not work without a union contract. Indeed, if Respondent hired nonunion employees through the newspaper advertisement and terminated these four union-member employees only because it be- lieved that they, like their brethren who had already "quit," would not work under illegally (i.e., unilaterally) imposed nonunion conditions, the discharges would still be unlawful. Further, as Respondent concedes, there is not a scintil- la of evidence that, whatever the Union told Respond- ent, it told these four employees, or any other employees that they could not work for Respondent (regardless of a reason) or that they would suffer reprisals if they did so.' In the absence of any evidence to the contrary, I credit Flynn, Leech, and Murray that the Union made no such statements. Finally, in spite of Respondent's testimony and other suggestions (Resp. Exh. 12, rejected) that the Union caused it to terminate the nine electricians on May 31 by failing to give assurances to Respondent that the employ- ees would continue to work for Respondent; or that they quit, and that Respondent, at all times, desired to keep these employees in employment, yet even after the issu- ance of complaint on July 20, 1979, alleging unlawful termination of these nine employees, Respondent, on this On cross-examination, none of the employees suggested that the Union said they could not work for Respondent. Respondent. neither on serving the separation slips on the nine employees, nor at any other time, told the employees that Respondent was terminating them on the Union's demand. Rather, the circumstances lead to the conclusion that the re- sponse to Respondent's May 27 newspaper advertisement was sufficiently positive so as to permit Respondent to successfully continue its business operations without union employees and without the Union. Respond- ent's suggestion (br., p 26) that Ingersoll "understood" he would be pe- nalized is irrelevent to any act by the Union. As the transcript shows, there was no union action to support that understanding record, failed to offer any of the alleged discriminatees reinstatement. I therefore conclude that the above four employees were unlawfully terminated and discharged in violation of Section 8(a)(3) and (1) of the Act on May 31, 1979. D. The Unilateral Changes Commencing June 1, 1979 The complaint alleges that commencing June 1, 1979, Respondent violated Section 8(a)(5) and (1) of the Act by making unilateral changes in the terms and conditions of employment without having afforded the Union an opportunity to negotiate and bargain in the following four respects: (a) in failing to pay contributions into the employees' benefit funds; (b) in failing to contribute to the medical benefit fund; (c) in failing to contribute to the pension fund; and (d) in failing to reimburse employ- ees for travel money between jobs. The background to this allegation must include Re- spondent's December 22, 1978, withdrawal from NECA and repudiation of the Union as the unit employees' stat- utory representative; Chambrello's January 18, 1979, dec- laration to unit employees with regard to their loss of benefits and Respondent going "nonunion"; Freedman's and Chambrello's statements in the period January-May 1979, to the Union that Respondent was going "non- union" or "open shop"; and meetings between Respond- ent and the Union in the aforesaid period. At the hear- ing, Seymour Freedman admitted that commencing June 1, 1979, without giving the Union notice and an opportu- nity to bargain, Respondent, notwithstanding the terms of the contract which had expired on May 31, 1979: (a) instituted a 40-hour workweek whereas the expired con- tract had a 36-hour workweek; (b) instituted a rule of paying straight time for the difference between 36 and 40 hours of work rather than a premium rate as required by Section 2(c) of the expired collective-bargaining agree- ment, and, as demonstrated by Respondent's records (G.C. Exh. 7), (c) changed the hourly wage rates of em- ployees after June 1, 1979; (d) failed to pay the employ- ees a mileage allowance; (c) discontinued the paid travel time; (f) changed the ratio of apprentices to journeymen under article IV, section 6 of the collective-bargaining agreement; and (g) failed to pay into the union pension fund, hospital and medical benefits fund, and apprentice fund. Freedman further testified that these items were re- peatedly mentioned in formal meetings with the Union prior to June 1, 1979, wherein the Union desired to have Respondent return to the NECA contract. Respondent asserts that these meetings constituted "bargaining" on these matters, and, sub silentio, a re-recognition of the Union by Respondent. As above noted, Murray testified that, while these items were indeed mentioned, they were not conditions under which Respondent would "return to the fold," but were merely the elements that made Respondent noncompetitive and caused it to be "nonunion." I have above concluded that, inter alia, even after May 31, Respondent mentioned these items to sup- port its decision to go "nonunion." In context of Respondent's particular unfair labor practices, these conversations between the parties, both before and after May 31, could hardly be called bargain- S. FREEDMAN ELECTRIC, INC. 443 ing, much less good-faith bargaining, especially in view of Chambrello's January 18 speech and Respondent's De- cember 22, 1978, notice of future repudiation of any obli- gation to recognize or bargain with the Union. In agreeing with the Board, the court of appeals in N.L.R.B. v. Haberman Construction Company, supra at 302-303, notes that at: . . . contract expiration, an employer may not uni- laterally alter, without bargaining to impasse, a con- tractual term that is a mandatory subject of bargain- ing. This result obtains because such a term "by op- eration of statute continues even after the contract embodying it has terminated." . . . Examples of contractual terms which survive contract expiration include a schedule of wages and fringe benefits ... employee seniority rights . . . and grievance proce- dures. .... Since [these] benefits are contractual terms that continue by operation of the Act, re- spondent would not have been free to cancel those benefits, even though the contract expired, without first bargaining to impasse. The court of appeals adds the observation that con- tractual terms which are solely a product of the contract itself form an exception to the general rule and that these nonsurviving terms of the contract include the arbitra- tion and union-security provisions in the contract. N.L.R.B. v. Haberman Construction Co., cases cited in fn. 16, at 302. Accord: Ortiz Funeral Home Corp., 250 NLRB 730 (1980).9 In short, contract provisions govern- ing the employer-employee, rather than employer-union, relationship survive. Gordon L. Rayner d/b/a Bay Area Sealers, 251 NLRB 823 (1980). A word might be added here in regard to Chambrel- lo's testimony that, relating to pensions, he offered (in his statement to employees on or about January 19, 1979) to pay the pension contributions either directly to the em- ployees or, if he could persuade the Union, into the union pension funds. I have not credited this Chambrello testimony. Instead, consistent with Respondent's newspa- per advertisement, I have credited the contrary testimo- ny of the General Counsel's witnesses: that Chambrello told them that their pension would not be continued if they chose to remain in Respondent's employ after May 31, 1979. However, even if Chambrello's version is ac- cepted, his statement agreeing to make the employer's contribution directly into their paychecks rather than supporting a multiemployerwide pension plan, obviously unlawful direct dealing, nevertheless would constitute, in I As will be hereinafter noted, the remedy in this case will, inter alia, require Respondent to retroactively reinstate all the terms and conditions of employment of the collective-bargaining agreement which expired on May 31 other than, for example, the union-security and arbitration de- vices. Since there was no bargaining impasse much less a good-faith im- passe. Pillowtex Corporation, 241 NLRB 40 (1979), the employees hired by Respondent on and after June 1, 1979, as well as those unlawfully terni- nated on or before May 31, 1979, may well receive the benefits of conl- tract coverage. It is irrelevant, for 8(aH5) purposes, that Respondent's unilateral changes may have been based on compelling economic consid- erations. Here, there were no compelling economic considerations shown In any event, its motives, under Sec. 8(a)(5), for these unlawful changes, are irrelevant. NL.R.B. v. Laredo Coca Cola Botling Co., 625 F.2d 593 (5th Cir. 1980). addition, a violation of Section 8(a)(1) of the Act and, as Respondent's further conduct demonstrated after June 1, 1979, a violation of Section 8(a)(5) in the actual unilateral changes. Thus, certainly after Respondent's repudiation of the Union as collective-bargaining representative, even if Respondent would pay the amount of the pension funds directly into the employees' pockets, such a device would nevertheless constitute a serious infringement of employee collective-bargaining rights and part of an "in- tolerable" change in their wages and conditions of em- ployment, as above noted. For it has long been recog- nized that pension and welfare benefits, being in the nature of compensation, are among the more important subjects of bargaining, Brockway Motor Trucks v. N.L.R.B., 582 F. 2d 720 (3d Cir. 1978); and employees have a substantial interest in obtaining these benefits from a multiemployer fund, both because of the obvious advantages of broader-based funds which can take ad- vantage of economies in administrative costs and invest- ments, and because, through industrywide funds, employ- ees can generally enjoy continuity of benefits, and accu- mulate continuous seniority towards their retirement benefits even when they change employers. Association of Plumbing Contractors v. Plumbers' Local 3, 587 F.2d 1367, 1375 (10th Cir. 1978). F. Respondent's Refusal To Bargain on an Individual Basis The amended complaint alleges that Respondent, on various dates in March, April, and May, 1979, refused to bargain in good faith with the Union on an individual basis. Respondent's answer to the original amended consoli- dated complaint, dated July 24, 1979, admits both the ap- propriateness of a unit composed of: "All inside electri- cal workers employed by the Respondent at its Hartford location," and that such unit"0 was the basis of recogni- tion contained in successive collective-bargaining agree- ments with the Union, the most recent of which was ef- fective in the term June 1, 1979, through May 31, 1980. In its further answer filed on April 21, 1980, at the open- ing of the hearing, Respondent continued in those admis- sions but denied that the Union, at all material times, continued to be the unit employees' collective-bargaining representative. In view of the fact that (1) Respondent, at all material times prior to the May 31, 1979, recognized the Union in the alleged lawful unit; that (2) such recognition, em- bodied in an otherwise valid collective-bargaining agree- ment, raised a presumption of continuing majority status; and (3) that Respondent would rebut that resumption only by showing that it unlawfully dissipated that major- ity by its own unlawful acts, I find and conclude that all material times, both before and after May 31, 1979, the Union was, and continued to be, the statutory collective- bargaining representative of Respondent's employees in in Under the General Counsel's alternate pleading, if Respondenti failed to lawfully ithdra from NECA, then the appropriate unit would have been the NECA-wide unit If the withdrawal as lawful, as I hase held. the appropriale bargaining unit would bh that of Respondcnt's own em- ployees S. FREEDMAN ELECTRIC, INC. 443 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the above-described unit of "All inside electricians em- ployed at Respondent's Hartford location." With regard to Respondent's failure to bargain collec- tively on an individual basis (an obligation arising on and after May 31, 1979), the following elements are uncontra- dicted: (1) on December 22, 1978, Respondent, by its written communications to NECA and the Union, stated that, effective on and after the termination of the con- tract on May 31, 1979, Respondent would withdraw rec- ognition of the Union as the statutory representative of the unit employees; (2) on or about January 18, 1979, Re- spondent advised the unit employees that it would go "nonunion" and would, after the May 31, 1979, expira- tion of the contract, unilaterally change their working conditions; and (3) on or about January 18, 1979, told a group of its unit employees that, if they wished to con- tinue to work for Respondent, they could do so only on its terms which, as above noted, were unlawfully im- posed unilateral conditions. The evidence further dis- closes that on various dates in March, April, May, No- vember, and December, 1979, and on January 2 and 9, 1980, Respondent met with the Union, T' at the Union's request, to see if there were some way that Respondent could lawfully execute its obligations to bargain with the Union and, indeed, to execute the associationwide NECA contract. As above noted, Respondent in sub- stance stated that it needed various economic relief, re- lating to the five unilateral changes it was to implement on June 1979. Respondent contends that, in these meet- ings with the Union, it outlined the conditions and eco- nomic concessions under which it would again recognize the Union, bargain through NECA, and execute the NECA agreement. Contradicting Respondent, as above noted, the Union's witnesses contend that the five condi- tions of economic concessions which Respondent men- tioned, were the reasons Respondent mentioned only for going "nonunion" rather than forming the basis on which it would execute the agreement. While I have resolved the above contradictory testi- mony and found that the statements were made for both purposes, it is clear that these meetings failed to consti- tute good-faith bargaining commencing December 22, 1978. Respondent never altered from its December 22, 1978, declared course of withdrawing recognition from and repudiating its legal obligation to bargain with the Union after May 31. Whatever might be the case with regard to minor unfair labor practices, Respondent, com- mencing December 22, 1978, here cannot be said to have l The General Counsel and the Union argue that all meetings after issuance of complaint on July 2(1, 1979, are not evidence of individual bargaining but merely of "settlement discussions," the subject matter of which should be excluded from "bargaining." Whether this was individu- al bargaining is not crucial but whether it was individual bargaining in good faith is dispositixe. I find, as above noted in the text, that it was not. In any event, these meetings were not mere settlement discussions merely because they followed issuance of coniplaint. Moreover, with regard to the meetings of the parties on January 2 and 9, 1980, the General Counsel and the nioi vult suppress the nature of those discussions on the ad- ditional ground that the Unioll had entered into such discussions only after execution of agreements with Respondent reserving the participants' right to claim that no individual bargaining occurred and that Respond- ent had unsuccessfully and unlawfully withdrawn from multiemployer bargaining (C.P. Exhs I and 2). Such agreements, however, do not cover prior, postcomplaint discussions in November and December bargained in good faith with the Union since its unfair labor practices were so serious as to obliterate its statu- tory obligations to the Union. Where, as here, Respond- ent has repudiated the Union, terminated its employee members, unilaterally changed 30 working conditions, hired replacements for the unlawfully discharged em- ployees, and then advised the Union, inter alia, that if the Union did not accede to its demands with regard to the five enumerated economic concessions, it would not only not execute collective-bargaining agreement, but would continue in its withdrawal of recognition and remain nonunion, concurrent meetings with the Union do not constitute good-faith bargaining. Freedman's repeated statements that Respondent's withdrawal of union recog- nition was not a stance embedded in concrete supports the conclusion that he was using recognition as a bar- gaining device as does his repeated statement that Re- spondent would try out its nonunion status for a year and then decide whether it would re-recognize the Union and bargain through the Association. Thus, at best, what Respondent succeeded in doing at these var- ious discussion sessions with the Union, in 1979 and 1980, was to bring the Union to the "bargaining" table, not in economic confrontation as the collective-bargain- ing representative of its employees, but as an unlawfully estranged supplicant. With Respondent's December 22, 1978, notice of future withdrawal of recognition already established and outstanding, together with the anticipated unilateral changes already made known to its employees in January (which Respondent was to require as a condi- tion of their further employment), Respondent cannot come to the bargaining table prior to contract expiration urging that it was willing to, and in fact did, bargain on an individual basis in good faith with the Union. After the May 31 contract expiration, with the unlawful dis- charges and withdrawal of recognition, and unforsaken unilateral changes in place after unlawful direct bargain- ing with the employees, Respondent, a fortiori, cannot be heard to say that its meetings with the Union constituted good-faith bargaining on an individual basis. Nor can such 1979 and 1980 meetings permit the conclusion that Respondent, bargaining on an individual basis, impliedly abandoned its unlawful December 1978 notice of repudi- ation of the Union as statutory representative of unit em- ployees. At all times in possession of the unlawful advan- tages of such repudiation (unilateral changes, direct deal- ing, unlawful discharges, Respondent cannot cloak its dealings with the Union under the protective description of "good faith bargaining." 2 If negotiations against a background of unremedied unfair labor practices consti- tute "an exercise in futility" where an employer merely repudiates a collective-bargaining agreement in midterm, Gordon L. Rayner d/b/a Bay Area Sealers, 251 NLRB 823, fn. 5 (1980), then here such negotiations, a fortiori, are futile since Respondent repudiated the Union. 2 It is futile to suggest that any "impasse" occurred after the January 9, 1980, meeting where the Union apparently refused thereafter to meet with Respondent to resolve their continued outstanding differences which resolution would permit Respondent to again recognize the Union and rejoin NECA. Any such "impasse," would not have been the result of good-faith bargaining and therefore no good-faith "impasse" can be held to have occurred Pillo'wtex Corporation, 241 NLRB 40 (1979). S. FREEDMAN ELECTRIC, INC. 445 Thus, while the lawfulness of Respondent's withdraw- al from multiemployer bargaining has been resolved, yet, Respondent by its negotiating with the aid of serious, un- remedied unfair labor practices was at no time after De- cember 22, 1978, negotiating in good faith with the Union. By such acts and by each of them as alleged in the complaint, Respondent, commencing December 22, 1978, refused to bargain collectively on an individual basis in good faith with the Union in the above-described single employer unit and has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. The Walmac Co., 106 NLRB 1355 (1953), cited by Respond- ent, is distinguishable. CONCLUSIONS OF LAW 1. Respondent S. Freedman Electric, Co., Inc., is now and has been at all material times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, International Brotherhood of Electrical Workers, AFL-CIO, Local 35, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All inside electrical workers employed by S. Freed- man Electric Co., Inc., at its Hartford location, ex- cluding guards and supervisors within the meaning of Section 2(11) of the Act. 4. At all material times, the Union has been and is the exclusive bargaining representative of all the employees within the above-described appropriate unit for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. Respondent, by repudiating on December 22, 1978, its obligation to recognize and bargain with the Union in the above unit commencing May 31, 1979, violated Sec- tion 8(a)(5) and (1) of the Act. 6. By announcing to employees, on or about January 18, 1979, that Respondent was going "open shop" or "nonunion" and that the employees could either work for Respondent after May 31, 1979, under terms and con- ditions of employment then to be unilaterally imposed or could cease being employed, threatened employees with constructive discharge and told its employees it was re- jecting its obligation to recognize and bargain with their statutory representative thereby independently violating Section 8(a)(l) of the Act. 7. By unilaterally changing, on or about June 1, 1979, the existing wage rates and other terms and conditions of employment of its employees included in the above-de- scribed bargaining unit and by modifying the terms and conditions of employement then enjoyed by said unit em- ployees pursuant to the collective agreement which ex- pired on May 31, 1979, all without notifying the Union of its intention of doing so or affording the Union an op- portunity to bargain on such changes, Respondent re- fused to bargain collectively with the Union in the above unit of employees and thereby violated Section 8(a)(5) and (I) of the Act. 8. By attempting, on and after around January 18, 1979, to bargain directly with its employees regarding wages, hours, and other terms and conditions of employ- ment notwithstanding the Union's status as the collec- tive-bargaining representative of said employees in the above-described unit, Respondent refused to bargain col- lectively with the Union as the collective-bargaining rep- resentative of the employees in the said unit above de- scribed and thereby violated Section 8(a)(5) and (1) of the Act. 9. By on or about May 31, 1979, constructively dis- charging employees Stanley Ingersoll, Edward Baron, William Broughton, Anthony (Antonio) Silva, and Donald Martorelli, Respondent violated Section 8(a)(1) and (3) of the Act. 10. By on or about May 31, 1979, unlawfully discharg- ing employees Andrew Sikorowicz, Louis Stosato, Fran- cis Coleman, and Henry Robidoux, Respondent violated Section 8(a)(1) and (3) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(2), (6). and (7) of the Act. THE REMEDY In view of Respondent's commission of unfair labor practices, I will require it, in accordance with Gordon L. Rayner d/hb/a Bay Area Sealers, supra, to cease and desist from further violations, to recognize and bargain in good faith, on request, with the Union, to revoke, on the Union's request, any or all of its unilateral changes com- mencing June 1, 1979, in the terms and conditions of em- ployment of its unit employees, Kal-Equip Company, 237 NLRB 1234 (1975), to make contributions into the pen- sion and other funds, Vin James Plastering Company, 226 NLRB 125 (1976); Win. Chalson & Co., Inc.. 252 NLRB 25 (1981), and to otherwise retroactively to June 1, 1979, continue in full force and effect all the terms and condi- tions of the contract (except union-security and checkoff provisions), Peerless Roofing Co., Ltd., 247 NLRB 300 (1980); Trico Products Corp., 238 NLRB 1306 (1978), which expired on May 31, 1979, until such time that it reaches agreement or bargains to good-faith impasse with the Union or the Union refuses to bargain on such mat- ters. If an understanding is reached, it shall be embodied in a signed agreement. I shall also order that the nine dis- charged and constructively discharged employees be of- fered reinstatement to their former positions of employ- ment, discharging, if necessary, other employees who may have been hired in their places; and that they be made whole because of the discrimination against them for any loss of pay and other employment benefits in- cludable as net backpay. Furthermore, I shall order that unit employees hired on and after June 1, 1979, be made whole as a result of Respondent failing to apply to them the terms and conditions of the contract which expired May 31. 1979. Ogle Protection Service, Inc., 183 NLRB 682 (1970). Interest, except with regard to amounts to be contributed to the several Union funds, as noted below, shall be paid in accordance with Florida Steel Corp.. 231 S. FREEDMAN ELECTRIC. INC. 445 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 651 (1977). Thus, the terms of the expired con- tract will be applied in futuro until such time as Re- spondent performs its above-bargaining obligations. See, generally, Gordon L. Rayner, et al., d/b/a Bay Area Sealers, supra. The question of interest and other addi- tional amounts payable into the several union trust funds as part of this "make whole" remedy will be left to the compliance stage of this proceeding. Merryweather Opti- cal Co., 240 NLRB 1213 (1979). Backpay, if any, to the discharged employees will be computed in accordance with F: W. Woolworth Company, 90 NLRB 289 (1950), with interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). The make whole remedy to the dis- charged employees shall not only include Respondent's transmissions of defaulted and continuing contributions to the Union's health and welfare, pension, apprentice- ship, and other funds under the expired contract, but also the reimbursement of employee contributions or losses otherwise covered by the contractual funds and policies. Kraft Plumbing and Heating, Inc., 252 NLRB 891 (1981). Upon the foregoing findings of fact, conclusions of law, and pursuant to Section 10(c) of the Act, I issue the following: ORDER' 3 The Respondent, S. Freedman Electric, Inc., Hartford, Connecticut, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employment with Interna- tional Brotherhood of Electrical Workers, AFI,-CIO, Local 35, herein called the Union, as the exclusive bar- gaining representative for employees in the following ap- propriate unit: All inside electrical workers employed by S. Freed- man Electric, Inc., at its Hartford, Connecticut lo- cation but excluding guards and supervisors within the meaning of Section 2(11) of the Act. (b) Discouraging membership in, activity on behalf of, or support for, the Union by discharging or constructive- ly discharging employees, or otherwise discriminating in any manner with respect to their wages, hours, tenure of employment, or any other term or condition of employ- ment. (c) Announcing to employees covered by a collective- bargaining agreement that it is going "nonunion" or "open shop" or informing employees, prior to good-faith impasse with the Union, that they can either work under Respondent's unilaterally imposed conditions of employ- ment or they can cease working for Respondent. ':' In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulatils of the National Labor Relations Board the findings, cotclusions, anId recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted hy the Hoard and become its findings. conclusiolns anld Order, and all objections thereto shall be deelmed waived for all purposes (d) Failing or refusing to make payments to the Union's health, welfare and pension, and other trust funds as required by the collective-bargaining agreement which expired on or about May 31, 1979. (e) Unilaterally altering for unit employees any of the terms and conditions of employment which are specified in the collective-bargaining agreement which expired on May 31, 1979, covering such employees. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain with the above-named labor organization as the exclusive repre- sentative of all the employees in the above appropriate unit with the respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Upon the Union's request, revoke any or all unilat- eral changes made effective by Respondent on and after June 1, 1979, with regard to the wages, hours, and terms and conditions of employment of all employees in the ap- propriate unit described above. (c) Give retroactive effect, commencing June 1, 1979, to all the terms and conditions of the collective-bargain- ing agreement which expired May 31, 1979, until such time that Respondent and the Union reach good-faith im- passe, execute a collective-bargaining agreement, or the Union refuses to bargain in good faith with respect to such matters. (d) Offer to employees Stanley Ingersoll, Edward Baron, William Broughton, Anthony (Antonio) Silva, Donald Martorelli, Andrew Sikorowicz, Louis Stosato, Francis Coleman, and Henry Robidoux immediate and full reinstatement to their respective former positions of employment, without loss of seniority or privileges, dis- charging, if necessary, other employees who may have been hired or assigned to perform their functions; or, if their former respective positions do not exist, to substan- tially equivalent positions without prejudice to their se- niority or other rights and privileges. (e) Make whole the employees specified in paragraph 2(d), above, and all unit employees hired on or after June 1, 1979, for any losses of pay each may have suffered, respectively, either as a result of the discrimination against each of them or because of Respondent's failure to apply to them the terms of the collective-bargaining agreement which expired on May 31, 1979, in the manner set forth above in the section entitled "The Remedy." No part of the Order herein shall be construed as forcing or requiring Respondent to subtract or with- draw any benefit or benefits heretofore granted to unit employees commencing June 1, 1979. (f) Pay to the appropriate trust funds the contributions required by the agreement which expired May 31, 1979, to the extent that such contributions have not been made or that the employees have not otherwise been made whole for their ensuing medical and other expenses, and continue such payments until Respondent negotiates in S. FREEDMAN ELECTRIC, INC. 447 good faith with the Union to an agreement, or to good- faith impasse or until the Union refuses to bargain. (g) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, work schedules, production reports and data, social security payment records, timecards, person- nel records and reports and all other records and entries necessary to determine Respondent's compliance with this Order and the amount of backpay and other sums and benefits due under the terms of this Order. (h) Post at its place of business in Hartford, Connecti- cut, copies of the attached notice marked "Appendix."'4 Copies on forms provided by the Officer-in-Charge of Subregion 39, shall, after being duly signed by Respond- ent's representative, be posted by it immediately upon re- ceipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (i) Notify the Officer-in-Charge of Subregion 39, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 14 In the event that this Order is enforced by a Judgment o 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 the National Labor Relations Board" APPENDIX NOTICE TO EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that S. Freedman Electric, Inc., has violated the National Labor Relations Act and has or- dered us to post this notice. We therefore notify you that: WE WILL NOT refuse to recognize and bargain collectively, upon request, concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with International Brotherhood of Elec- trical Workers, AFL-CIO, Local 35, herein called the Union, as the exclusive bargaining representa- tive for our employees in the following appropriate unit: All inside workers employed by us at our Hart- ford, Connecticut location, but excluding guards and supervisors within the meaning of Section 2(11) of the Act. WE WILL NOT discourage membership in, activity on behalf of, or support for, the Union by discharg- ing or constructively discharging employees, or oth- erwise discriminating in any manner with the re- spect to their wages, hours, tenure of employment or any other terms and conditions of employment. WE WILL NOT announce to our employees cov- ered by a collective-bargaining agreement that we are going "nonunion" or "open shop" or inform employees, prior to good-faith impasse with the Union, that they can either work under Respond- ent's unilaterally imposed conditions of employment or they can cease working for Respondent. WE WILL NOT fail or refuse to make payments to the Union's health, welfare and pension and other trust funds as required by the collective-bargaining agreement which expired on or about May 31, 1979. WE WILL NOT unilaterally alter for our unit em- ployees any of the terms and conditions of employ- ment which are specified in the collective-bargain- ing agreement which expired on May 31, 1979, cov- ering such employees. WE WILI. NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL recognize and, upon request, bargain with the above-named labor organization as the ex- clusive representative of all the employees in the above appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL. upon the Union's request, revoke any or all unilateral changes made effective by us on and after June 1, 1979, with regard to the wages, hours, and terms and conditions of employment of all employees in the above-described unit. WE WILl give retroactive effect, commencing June 1, 1979, to all the terms and conditions of the collective-bargaining agreement which expired May 31, 1979, until such time that we and the Union ex- ecute a signed contract or reach good-faith impasse or the Union refuses to bargain in good faith. WE WII.L offer to our employees Stanley Inger- soll, Edward Baron, William Broughton, Anthony Silva, Donald Martorelli, Andrew Sikorowicz, Louis Stosato, Francis Coleman, and Henry Robi- doux immediate and full reinstatement to their re- spective former positions of employment without loss of seniority or privileges, discharging if neces- sary other employees who may have been hired or assigned to perform their functions; or, if their former respective positions do not exist, to substan- tially equivalent positions without prejudice to their seniority or other rights and privileges. WEI WILl make whole the employees specified in the above paragraph and all unit employees hired on or after June 1, 1979, for any losses of pay each may have suffered, respectively, either as a result of the discrimination against them or because of our failure to apply to them the terms of the collective- bargaining agreement which expired on May 31, 1979. No part of the Board's order herein shall be construed as forcing or requiring us to subtract or S. FREEDMAN ELECTRIC, INC. 447 _, _ 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdraw any benefit of benefits heretofore granted to unit employees commencing June 1, 1979. WE WILL pay to the appropriate union trust funds the contributions required by the agreement that expired May 31, 1979, to the extent that such contributions have not been made or that the em- ployees had not otherwise been made whole for their ensuing medical and other expenses, and con- tinue such payments until we negotiate in good faith with the Union to an agreement or to good-faith impasse or until the Union refuses to bargain. S. FREEDMAN ELECTRIC, INC.