Phoenix Air Conditioning

PHOENIX AIR CONDITIONING Phoenix Air Conditioning, Inc. and Sheet Metal Workers International Association, Local Union No. 359. Case 28-CA-3741 August 12, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 19, 1977, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceeding. Thereafter, the Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. On April 7, 1975,' Respondent signed a memoran- dum agreement with Local 359 of the Sheet Metal Workers International Association wherein it agreed to recognize the local Union as the exclusive collective-bargaining representative of its employees and be bound by the terms of a certain collective- bargaining agreement between the local and the Air Conditioning Contractors of Arizona, a multiem- ployer association. The memorandum agreement also bound Respondent to all succeeding collective- bargaining agreements negotiated between the Union and the contractors association, provided Respondent failed to give a written notice of termination 30 days prior to the expiration of the current agreement, which was effective from July I, 1973, to July 1, 1975. The current contract also provided that employers were to furnish a performance bond (to insure that wages were paid) in a minimum amount of $5,000. Failure to provide said bond would constitute grounds for the Union to withdraw all employees referred to an employer through the hiring hall provisions of the contract, or to refuse to permit an employer from further utilizing the hiring hall procedure. Beginning in May, the Union repeatedly requested that Respondent post the performance bond. Due to financial difficulties, Respondent could not acquire such a bond from various insurance All dates are in 1975 unless otherwise provided. 2 Retail Associates, Inc., 120 NLRB 388, 395 (1958). :' See cases cited in the Administrative Law Judge's Decision, as well as Goodvell & Vocke. Inc.. 223 NI.RB 60. 65 66 (1976): Siebler Heating & Air 231 NLRB No. 60 agencies which it had contacted nor could it furnish the $5,000 itself. Also in May, the association entered into negotia- tions with the Union for a collective-bargaining agreement to succeed the one due to expire on July 1. An agreement was finalized on July 28 and made retroactive to July 1. The bonding requirements were substantially similar to the previous contract. Meanwhile, on July 20, the Union decided to withdraw the employees which it had referred to Respondent since Respondent had failed to post the necessary bond. Thereafter, on July 24, Respondent sent the Union a letter which included a "30-day notice for termination of any union agreement according to [the memorandum] agreement." How- ever, according to the provisions of that agreement, the notice was clearly untimely. Thereafter, the Union filed a charge leading to the instant proceed- ing. The Administrative Law Judge framed the issue in this case in terms of the withdrawal of an employer from a multiemployer group after negotiation for a new contract had commenced. Accordingly, the Administrative Law Judge analyzed the facts in this case in light of the rule enunciated by the Board in Retail Associates.2 That case provided that, absent "unusual circumstances" (or mutual consent), an employer violates Section 8(a)(5) of the Act by withdrawing from a multiemployer unit and refusing to bargain collectively after actual contract negotia- tions have commenced. The Administrative Law Judge determined that the cases construing Retail Associates require a showing by an employer of "dire and disastrous economic circumstances" in order to demonstrate the requisite "unusual circumstances" permitting an employer to avoid a possible 8(a)(5) violation. Finding that Respondent asserted mere economic hardship of a nature not equivalent to "dire and disastrous economic circumstances," the Administrative Law Judge concluded that Respon- dent violated Section 8(a)(5) of the Act by withdraw- ing from the multiemployer unit after negotiations had commenced and thereafter repudiating the existing collective-bargaining agreement. While we agree with the ultimate conclusion of the Administrative Law Judge that Respondent violated Section 8(aX5) of the Act, we do not rely on the analysis which he employed in reaching that conclu- sion. Retail Associates and its progeny3 involve employers who were members of a multiemployer group. However, in the instant case, Respondent merely adopted an area agreement in the negotiation Conditioning, Inc., 219 NLRB 1124. 1130 (1975): Serv-All Company. Inc., 199 NLRB 1131, 1141 (1972); Unelko Corporation, 195 NLRB 236. 239 (1972); Community Market., Inc.. 179 NLRB 4, 6 (1969). 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which it did not participate. This action, without more, falls short of making Respondent a part of the multiemployer bargaining unit.4 Accordingly, the rule expressed in Retail Associates regarding with- drawal from multiemployer associations is inapplica- ble to this case. As mentioned above, Respondent attempted to terminate its agreements with the Union by letter sent on July 24. The Union's business agent, William Miller, received the letter on July 28 and called Bob Brooks, an officer of Respondent, on the same day. Miller stated to Brooks that his notice was untimely and that the Union and Respondent still had a valid agreement between them. Brooks replied that the notice was effective and, therefore, all agreements were terminated. In these circumstances, where the notice was clearly untimely, Respondent violated Section 8(a)(5) of the Act by its conduct of attempting to terminate the memorandum and collective-bargaining agreements and thereafter re- pudiating and refusing to honor said agreement following the Union's demand for continued compli- ance therewith. 5 Respondent asserted as a defense its inability to secure the performance bond required by the contract. However, the Board has consistently held that financial hardship is no justification for repudia- tion or modification of a collective-bargaining agreement or a term thereof.6 CONCLUSIONS OF LAW I. Respondent, Phoenix Air Conditioning, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Sheet Metal Workers International Association, Local Union No. 359, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is, and has been at all material times, the exclusive bargaining representative of the employees of Respondent in the following appropri- ate unit: All journeymen and apprentice sheet metal workers employed by the Employer in Arizona, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. 4 See Earl Gordon d/b/a Gordon Electric Company, 123 NLRB 862, 863 (1959). Cf. Marble Polishers, Machine Operators and Helpers Local No. 121, AFL-CIO, (Miami Marble & Title Company), 132 NLRB 844, 845, fn. 1 (1961); United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Gilbert Kroeler, d/b/a Kroeter Construction Company), 160 NLRB 1, 3 (1966). 5 See Platt Electric Supply, Inc., 224 NLRB 1477, 1482 (1976). See also 4. By a memorandum agreement entered into by Respondent and Union dated April 7, 1975, Respon- dent adopted and was therefore bound by all the terms and conditions of the collective-bargaining agreement effective from July 1, 1973, to July I, 1975, and the succeeding collective-bargaining agree- ment effective from July 1, 1975, to July 1, 1978, which were entered into by the Union and the Air Conditioner Contractors of Arizona. 5. By attempting to terminate in untimely fashion the memorandum and collective-bargaining agree- ments entered into between Respondent and the Union, and its subsequent repudiation and failure to honor said agreements following the Union's de- mand for continued compliance therewith, Respon- dent engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in the unfair labor practice described above, we shall order it to cease and desist therefrom, honor and abide by the memorandum and existing collective-bargaining agreements (giving retroactive effect thereto from their respective effective dates in 1975), and make whole Respondent's employees represented by the Union for any loss of pay or employment benefits as a result of its unilateral action in repudiating and refusing to honor the said agreements. Payments to said employees shall be made in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Phoenix Air Conditioning, Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Sheet Metal Workers International Association, Local Union No. 359, as the exclusive bargaining represen- The Anaconda Company, 224 NLRB 1041, 1052 (1976); Laramee's Transit, Inc., 224 NLRB 56, 65 (1976); Stockton Door Co., Inc., 218 NLRB 1053, 1055 (1975). 6 See Oak Cliff-Golman Baking Company, 207 NLRB 1063, 1064 (1973). See also Sun Harbor Manor, 228 NLRB 945 (1977); Nassau County Health Facilities Association, Inc., 227 NLRB 1680 (1977); Stone & Thomas, 221 NLRB 573, 576 (1975). 342 PHOENIX AIR CONDITIONING tative of its employees in the appropriate unit described above. (b) Attempting to terminate, unless done in timely and appropriate fashion, the memorandum and existing collective-bargaining agreements between Respondent and the Union, and repudiating or refusing to honor the terms of said agreements following demand by the Union for continued compliance therewith. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the National Labor Relations Act, as amended. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Honor and abide by the memorandum and existing collective-bargaining agreements, giving retroactive effect thereto from their respective effec- tive dates in 1975. (b) Make whole its employees in the appropriate unit described above, in the manner set forth in the Board's Decision entitled "The Remedy," for any loss of pay or employment benefits as a result of its repudiating and refusing to honor the aforesaid agreements. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay, if any, due under the terms of this Order. (d) Post at its facilities in Phoenix, Arizona, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading, "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL NOT refuse to bargain collectively with Local Union No. 359 of the Sheet Metal Workers International Association by attempting to termi- nate in an untimely manner, repudiating, or refusing to honor our contracts with the Union with respect to the following bargaining unit: All journeymen and apprentice sheet metal workers employed by the Employer in Arizona, excluding all other employees, office clerical employees, guards and super- visors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL honor and abide by the contracts we entered into with the Union and give retroactive effect thereto from the effective dates in 1975. WE WILL make whole our employees in the bargaining unit for any loss of pay or other employment benefits they may have suffered by reason of our refusal to honor and abide by the aforesaid contracts between the Union and us. PHOENIX AIR CONDITIONING, INC. 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE' HENRY S. SAHM, Administrative Law Judge: This proceeding, involving an alleged violation of Section 8(a)(5) of the Act, was heard at Phoenix, Arizona, on June 29, 1976, pursuant to a charge filed January 5, 1976, by Sheet Metal Workers International Association, Local Union No. 359, hereinafter referred to as the Union. The complaint issued on February 25, 1976. The primary question presented is whether Respondent, also called the Company, effectively withdrew from a statewide multiem- ployer collective-bargaining group, the Air Conditioning Contractors of Arizona, which bargained on behalf of its members with Sheet Metal Workers International Associa- tion, Local Union No. 359.2 The Union required a $5,000 performance bond which Respondent was unable to obtain from various insurance companies because of insufficient financial assets. Due to Respondent's inability to obtain a performance bond, the Union withdrew three of its members who were then employed by Respondent and refused it further use of its hiring hall facilities. Upon the entire record in this proceeding, the facts of which are uncontradicted, and consideration of the briefs filed by both parties, I hereby make the following: FINDINGS OF FACT The Business of Respondent and The Labor Organization Involved Respondent Phoenix Air Conditioning, Inc., is an Arizona corporation located in Phoenix where it is engaged in the installation of plumbing, heating, and air-condition- ing equipment. It annually purchases and receives goods, materials, and air-conditioning equipment valued in excess of $50,000 from sources which received such goods and materials directly from outside Arizona. Respondent admits the foregoing allegations. Accordingly, it is found Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party, Sheet Metal Workers International Association, Local Union No. 359, is a labor organization within the meaning of Section 2(5) of the Act. Undisputed Facts Respondent Company, on April 7, 1975, recognized the Union herein as the exclusive representative of its journey- men and apprentice sheet metal workers and agreed to be bound by all the terms and provisions of the collective- bargaining agreement effective from July 1, 1973, to July 1, 1975, between the Air Conditioning Contractors of Arizo- na and the Union. Respondent further agreed to be bound by the terms of any succeeding collective-bargaining agreement between the aforementioned parties, unless Respondent, Phoenix Air Conditioning, Inc., gave the Union written notice to the contrary, at least 30 days prior to the expiration or termination of the said agreement. I Except where otherwise indicated, the findings herein are based on uncontradicted facts. Although the memorandum agreement of April 7, 1975, was signed on that date, at which time Respondent was negotiating to acquire the business herein involved, it was not until April 29, 1975, that its purchase was consummat- ed. In May 1975, the multiemployer bargaining group, Air Conditioning Contractors of Arizona, entered into negotia- tions with the Charging Party Union herein, for a collective-bargaining agreement to succeed the agreement which was due to expire on July 1, 1975. A collective- bargaining agreement for the period July 1, 1975, to July 1, 1978, was executed on September 30, 1975, by the parties, retroactive to July 1, 1975. Beginning in May, the Union repeatedly requested that Respondent, in accordance with the terms of the above- mentioned collective-bargaining agreement, post a perfor- mance bond in the amount of $5,000. Due to financial difficulties, the Company was unable to acquire such a bond from various insurance agencies which it contacted.3 By letter dated July 24, 1975, Respondent Phoenix Air Conditioning, Inc., informed the Union that it was "giving our 30 day notice for termination of any union agreement as according to the union agreement sections 2 and 3. The union contract was signed in error as we were not licensed contractors as we did not have a contractors license at that time. Therefore, this agreement is no longer in effect. We also were unable to secure our $5,000 bond required." Article XIII, "Bonding," of the union agreement effec- tive July 1, 1975, to July 1, 1978 (G. C. Exh. 2(c)), provides, inter alia, in subparagraph C, that upon default of the performance bond requirement by the employer (Respon- dent herein), "the Union may withdraw from the employer all employees covered by the collective bargaining agree- ment and may take all other legal economic actions which the Union deems appropriate ... ." Respondent alleges, and it is undisputed, that when it could not obtain the required bond, Local 395 "pulled its workers" who were members of the said Union and "then went to non-union personnel to complete its contracts." Counsel for Respondent in his brief contends that, when it becomes impossible to perform a contract because of facts existing at the time the agreement is entered into, there is no contract if the parties were ignorant of the true situation and if it appears that the agreement was conditioned upon the supposed possibility of performance. Moreover, continues Respondent's argument, when it signed the memorandum of agreement with the Union on April 7, it believed there would be no problem in obtaining the required performance bond. However, its financial situation was such that it was unable to obtain the $5,000 performance bond from any of the numerous insurers which it contacted between May 1975 and January 1976. Finally, concludes Respondent's attorney: "To enforce the contract of April 7, 1975, upon the Respondent would completely destroy [Respondent Phoenix Air Condition- ing, Inc.]. It would go against the established contract law and equity to abide by a contract, it cannot perform." The General Counsel states that Respondent's inability to furnish the bond required by the above-mentioned 2 All dates herein refer to 1975 unless otherwise indicated. 3 See G. C. Exh. 4. 344 PHOENIX AIR CONDITIONING collective-bargaining agreement, as a matter of law, does not justify its repudiation of the contact as it "tacitly adopted" it and is, therefore, bound by it. The General Counsel alleges the fact that Respondent was not incorpo- rated at the time that Bob J. Brooks, an officer and shareholder of Respondent, signed the April 7 memoran- dum agreement, is immaterial. Rather, he alleges when Phoenix Air Conditioning, Inc., subsequently was incorpo- rated on April 29, the corporate entity was thereby bound by operation of law and is estopped from asserting otherwise. This is further evidenced, claims General Counsel, by Respondent corporation availing itself of the Union's hiring hall provisions of the contract whereby it obtained its sheet metal employees. Furthermore, General Counsel argues that economic necessity does not justify the repudiation of a collective-bargaining relationship. Discussion and Conclusions It is axiomatic that an employer's unilateral withdrawal from multiemployer bargaining violates the Act when it occurs after the commencement of negotiations for a new contract. The rules governing the withdrawal of an employer or a union from multiemployer bargaining are set out by the Board in Retail Associates, Inc., 120 NLRB 388, 395 (1958). The Board held in that case that an attempted withdrawal after the commencement of negotiations is impermissible "absent unusual circumstances." It is clear that the "unusual circumstances" exception has been narrowly construed by the Board and by the courts, as hereinafter explicated. Likewise, the Board has held that the requirement for timely notification of withdrawal does not apply where there is no established history of multiemployer bargaining so that an employer who withdraws under such circum- stances from an employer association prior to the start of negotiations need not give notice to the union. S & M Sheet Metal, Inc., 200 NLRB 634 (1972). In another case, the Board found that an employer's withdrawal from multiemployer bargaining was proper even though the union may not have received formal notice of the withdrawal, where the union otherwise had such timely notice. Site-Con Industries, Inc., 200 NLRB 46 (1972). The Board usually has limited the application of the "unusual circumstances" doctrine to situations involving financial hardship, so extreme as to threaten the existence of the employer as a viable entity or fragmentation or dissipation of the multiemployer unit.4 The existence of a genuine impasse in multiemployer bargaining has not been regarded as an "unusual circum- stance" that would justify an employer's unilateral with- drawal from such a bargaining arrangement. In one case, the Board stated that an impasse is "akin to a hiatus in negotiations" and that its occurrence "cannot be said to be 4 See, for example, Spun-Jee Corp and The James Textile Corp., 171 NLRB 557 (1968), enforcement denied 385 F.2d 379 (C.A. 2); Connell Typeselting Company. 212 NLRB 918 (1974); N.LR.B. v. Tulsa Sheet Metal Works, 367 F.2d 55, 58-59 (C.A. 10, 1966). ' Hi- Way, Billboards, Inc., 206 NLRB 22 (1973). See Bill Cook Buick, Inc., 224 NLRB 1094 (1976), where it was held that the existence of an impasse does not constitute "unusual circumstances." an unexpected, unforeseen, or unusual event in the process of negotiations . . . were we to hold otherwise, we would effectively negate the benefits of such bargaining to all parties and to employees, and we would allow an employer to seize upon such an occurrence and use it as a ground for withdrawal merely because it was dissatisfied with an impending agreement .... "5 However, Federal appeals courts have held to the contrary in those situations where an impasse has occurred. 6 The issue in the proceeding at bar then, is whether Respondent's uncontradicted inability to obtain a perfor- mance bond is an "unusual circumstance" within the holding of Retail Associates, supra, and thus a justification for its withdrawal from a multiemployer bargaining unit and repudiation of a collective-bargaining agreement signed by it and the multiemployer bargaining unit. The Board, however, did not attempt to define in Retail Associates what circumstances would be so unusual as to justify withdrawal. That was left to a case-by-case determi- nation. Many cases have arisen in which employers have attempted to withdraw in an untimely manner from multiemployer associations, asserting economic hardships as "unusual circumstances." No case has been found, however, in which the hardship involved was precisely that involved in the instant case; namely, an inability to obtain a performance bond. However, there seems to be little difference between this situation and other types of "financial inability" defenses. In the instant case, the Employer asserted both the inability to obtain the bond as well as being unable to meet the financial demands of the Union's contract, which would require the payment of higher wages. The Board has not accepted such defenses as "unusual circumstances." Only in cases where the econom- ic hardship involved was so dire as to cause the employer to go out of business, go into bankruptcy, or lose its employees, has the Board found the withdrawal defensible. The mere assertion of inability to pay union wages or obtain a performance bond has not been held to justify an untimely withdrawal as indicated by the following deci- sions. In Johnson Electric Company, Inc., 1% NLRB 637 (1972), the employer cited inability to pay union wages and inability to bid competitively on jobs as justification for withdrawal and refusal to abide by the contract negotiated by the multiemployer unit. The Board held this defense not to be valid. In another case, Tulsa Sheet Metal Works, 149 NLRB 1487 (1964), the employer withdrew from an association due to its purported inability to pay union wages. The Board found that the reason asserted by the employer was not legally sufficient to justify his withdrawal, stating: "While claims of economic hardship are not to be lightly considered, the concept of group bargaining would be rendered ineffectual if withdrawals at the crucial, late I N.LR.B. v. Hi-way Billboards, Inc., 500 F.2d 181 (C.A. 5, 1974); N.LR.B. v. Beck Engraving Co., Inc., 522 F.2d 475 (C.A 3, 1975), where the court held that even though the employer's withdrawal occurred following an impasse. it was justified by "unusual circumstances" as the withdrawal was obviated by the employer's good-faith doubt of the union's majority status among its employees, all of whom had resigned their membership prior to withdrawal. 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stages of negotiations are to be countenanced on the ground here advanced by respondent." 7 In those few cases, supra, where the Board has found economic hardship to be an effective defense, the economic hardship has been real and demonstrable, as opposed to what appears to be a weakly supported assertion of hardship in the case at bar. In U.S. Lingerie Corporation, 170 NLRB 750 (1968), respondent had been declared a "Debtor in Possession" under state bankruptcy laws, whereupon it had withdrawn with the intent to relocate and thus avoid a depressed economic area, and had sought help from the union which had been refused. The combination of these factors, with emphasis on Respon- dent's bankrupt situation, led the Board to conclude that unusual circumstances sufficient to excuse the untimely withdrawal existed. In Atlas Electrical Service Co., 176 NLRB 827 (1969), the employer was the only electrical contractor in an employer association comprised entirely of construction contractors in other trades. A jurisdictional dispute ensued, in which the employees of respondent informed him that they would quit unless he signed with the International Brotherhood of Electrical Workers, instead of another electricians union with which the employer's association involved was then dealing. The employer requested that the other union furnish him with replacements for his disgruntled employ- ees, but that union refused his request. In these unusual circumstances, the Board held that the employer was entitled to withdraw. Accordingly, it would seem that, absent a finding that Respondent Employer herein was shown "dire and disas- trous economic circumstances, i.e., circumstances in which the very existence of an employer as a viable business entity has ceased or is about to cease," assertions of economic hardship such as are here asserted, are not legally sufficient to justify the untimely withdrawal by Respon- dent from the multiemployer unit and repudiation of the collective-bargaining agreement with the Arizona Air Conditioning Contractors Association. It is found accordingly that when Respondent attempted to repudiate its membership in the multiemployer group that such withdrawal was untimely thereby violating Section 8(a)(5) and (1) of the Act.8 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom and to take certain T d., at 1501. Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245 (C.A. 2, 1966), cert. denied 385 U.S. 1005. affirmative action designed to effectuate the policies of the Act. Having found that Respondent, in violation of its duty under Section 8(aX5) of the Act, has repudiated the agreement reached by the Association in the multiemploy- er bargaining unit and has untimely withdrawn from that unit, it shall be recommended that Respondent be ordered to honor and abide by any collective-bargaining contract which was executed by Air Conditioning Contractors of Arizona on behalf of the employers in the multiemployer bargaining unit. In addition, it shall be recommended that Respondent be ordered to refrain from withdrawing from that multiemployer bargaining unit except upon adequate and timely written notice, or, except at such other time as it may lawfully withdraw. CONCLUSIONS OF LAW 1. The Arizona Association of Air Conditioning Con- tractors and its employer-members, including Respondent, who are part of the multiemployer bargaining unit set forth below, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All journeymen and apprentice sheet metal workers employed by members of Air Conditioning Contractors of Arizona, but excluding all other employees and supervisors as defined in the Act. 4. The Union is the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By repudiating the agreement that the Arizona Air Conditioning Contractors had made on its behalf in negotiations with the Union in said multiemployer bargain- ing unit and by untimely withdrawing from that multiem- ployer bargaining unit, Respondent has violated Section 8(aX5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 346