Local Union No. 323

LOCAL UNION =323 Local Union No. 323, International Brotherhood of Electrical Workers and Active Enterprises. Inc. and J. F. Hoff Electric Co. Cases 12-CB-1742- I and 12-CB-1742-2 May 17. 1979 DECISION AND ORDER BY CHAIRMAN FANNING( AND MEMBERS JENKINS ANI) PENEI.I() On June 26, 1978. Administrative Law Judge Wil- liam F. Jocobs issued the attached Decision in this proceeding. Thereafter. the General Counsel and the Charging Parties filed exceptions and supporting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent Union violated Section 8(b)(2) and (I)(A) of the Act by demanding, on June 22 and August 16, 1976.1 that the Charging Parties, Active Enterprises, Inc.. and J. F. Hoff Electric Co. (herein sometimes called the Employers), terminate certain of their employees who were employed prior to June 30. However, the Administrative Law Judge dismissed allegations that Respondent further violated Section 8(b)(2) and (I)(A) of the Act to the extent that it demanded, on June 22 and August 16. that employees hired after June 30 by the Employers be obtained under an ex- clusive referral arrangement: that Respondent vio- lated Section 8(b)(3) of the Act by demanding on those same dates the merger of two historically sepa- rate bargaining units over the objections of the Em- ployers; and that Respondent violated Section 8(b)(3), (2) and (I)(A) of the Act, by filing charges under a collective-bargaining agreement with the Em- ployer in an effort to apply the terms of that contract. including an exclusive referral provision, to employ- ees of the Employer allegedly not covered by the agreement. We find merit in the exceptions of the General Counsel and the Charging Parties to the Ad- ministrative Law Judge's failure to find the additional violations alleged. I All dates referred to herein are in 1976. unless olherwlse indicated The Facts Prior to 1973. Active and Hoff had signed letters of assent, agreeing to be bound by collective-bargaining contracts negotiated by the Florida East Coast Chap- ter of the National Electrical Contractors Association (herein called NECA) with Respondent Union.2 Dur- ing the period prior to July 1. 1973, the basic contract between NECA and Respondent, known as the In- side Wireman Working Agreement, covered employ- ees performing both commercial and residential elec- trical work. The most recent inside agreement to which Active and Hoff were parties was effective from September 1. 1974, through September 30, 1076. On July 1, 1973, Respondent and NECA, on behalf of the employers represented by it. including Active and Hoff which had signed letters of assent to be bound by this agreement as well, executed a separate contract covering employees performing residential electrical work only, and creating new job classifica- tions of "residential wireman" and "residential wire- man trainee." The apparent purpose of the agreement was to permit unionized contractors to compete more successfully against their nonunion counterparts in the industry. Thus, the Residential Wiring agreement provided for generally lower wage rates and fringe benefits than the inside agreement, and also allowed employers to hire residential wiremen form any source rather than through an exclusive referral sys- tem as prescribed in the inside agreement) The last residential agreement to which Active and Hoff were parties ran from Jul> 1. 1975, through June 30, 1976. In January 1976. Active and Hoff each informed NECA and Respondent that they no longer desired to be represented by NECA for collective-bargaining purposes. and that the) were terminating the residen- tial agreement upon its expiration on June 30. Subse- quently, in April, the Employers similarly notified NECA and the Union that they were withdrawing authority from NECA to bind them in future negotia- tions, and that they were terminating the inside agree- ment upon its expiration on September 30. On June 22. Respondent acknowledged receipt of Active and Hoffs notices of termination of the resi- dential agreement, thus consenting to the termination of that contract. However. Respondent called the at- 2 NECA is a nonprofit organization which, among other things. represents its members. electrical contractors and subcontractors in the construction industrs in collectise-hargaining negotiations with arious laxr unlons. and also represents nonmember emplosers in uch negotiatiurns 'ihere those em- plovers have signed letters of assent indicating intent to he bound bh NE(CA- negotiated contracts. 3 The residential agreement also contained clauses recognizing the Lnion as the exclusive representative of employees pertorming residental work. defining the particular type of work covered by the contract. and erecting a separate grievance-arbitration procedure to adjust differences under the con- tract It also contalined a clause referring tI "this hargaeiing unit." 242 NLRB No. 41 305 I)I0 CISIONS OF NAFIONAI I.ABOR RELATIONS BOARD tention of the Employers to the recognition clause of the inside agreement, which contract did not expire until September 30. The clause read: The Employer recognizes the Union as the exclu- sive representative of all its employees perftorm- ing work within the jurisdiction of the Union tor the purpose of collective bargaining in respect to the rates of pay, wages, hours of employment and other conditions of work. Any and all such employees shall receive at least the minimum wages and work under the conditions of this Agreement. Respondent then stated in the letter to each Em- ployer that it was required to terminate its "residen- tial employees" by June 30 (the date of expiration of the residential agreement), and that it was expected that each Employer would thereafter use only em- ployees "acquired through the referral procedure of the Inside Wiring Agreement" to perform all electri- cal work. On June 30, Respondent wrote Active and Hoff agreeing to negotiate a successor Inside Agree- ment with each of them on a single-employer basis, and enclosing proposed changes in the current inside agreement for their consideration. By letters dated July 30 and 31, Active and Hoff, respectively, informed the Union that, in their opin- ion, it was unlawful for Respondent to seek to impose the terms of the inside agreement upon work done by residential employees while, at the same time, refus- ing to bargain individually with the Employers for a new residential agreement, and further that Respon- dent's demand for the termination of their current residential employees was unlawful and would not be honored. The letters also stated that the Employers were willing to bargain with Respondent over the terms of a new residential agreement. On August I , Active wrote Respondent repeating its request for ne- gotiations for a new residential agreement, and, on August 12, Active requested that Respondent begin negotiations for a new inside agreement. Thereafter, on August 16, Respondent informed Active and Hoff in separate letters that it did not desire to negotiate a successor residential agreement with either of them;4 that Respondent had previously notified the Employers that all electrical work after June 30 was expected to be performed under the terms of the inside agreement, including the exclusive referral provision; that Respondent was of the opin- ion that the Employers were in breach of the inside 'On July 10, Respondent entered into a new residential agreement with NECA for a I-year penod. The contract, like the previous residential agree- ment, provided for lower wages and fringe benefits than the inside agree- ment, but, unlike the old residential agreement and like the inside agreement, included an exclusive referral provision. The residential agreement was not renewed after it expired in 1977, and thereafter both commercial and resi- dential work was performed under the terms of the inside agreement. agreement: and, finally, that Respondent had written the Employers on June 30 stating its intention to ne- gotiate new inside agreements and was awaiting a re- sponse. Active, on August 25, wrote Respondent repeating its request for negotiations for a new residential agreement. as well as its refusal to extend the terms of the present inside agreement to residential work. Ac- tive also stated in its letter that it was anxious to ne- gotiate a new inside agreement covering commerical work only, and enclosed proposed changes in the in- side agreement then in force. On September 21 and 22, respectively, Active and Hoff reiterated in letters to Respondent their requests for bargaining on a new inside agreement, and Hoff enclosed proposed changes in the inside agreement with its letter.5 In letters dated September 21 and 22. respectively, Hoff and Active informed Respondent that they were plac- ing in effect their own economic packages covering employees performing residential work, inasmuch as Respondent had refused to bargain with them for a new residential agreement. On September 29, Active and Hoff notified Respondent that they were putting into effect their proposed changes in the inside agree- ment as the Union had not responded to their re- quests to negotiate a new inside agreement. 6 How- ever, Active and Hoff stated again that they were willing to bargain with the Union about these changes. In the meantime, on August 20, Respondent filed charges against the Employers with the labor man- agement committee of NECA, alleging that Active and Hoff had failed to pay wage rates and fringe benefits as required under the inside agreement, and also had employed employees not referred through the contractual hiring system.7 Representatives of NECA, Active, Hoff, and Respondent met to discuss the charges on August 31. The Employers contended at the meeting that NECA no longer had any author- ity to represent them, but indicated that they were interested in negotiating a new residential agreement individually with Respondent. They also took the po- sition that Respondent was illegally seeking to impose I The Administrative Law Judge inadvertently referred to the changes pro- posed by Hoff in the inside agreement as having been mailed on September 8. Actually, although dated September 8, the) were sent to Respondent with Hoff's letter of September 22. 6 Also by apparent inadvertence. the Administrative Law Judge stated that Active and Hoffs letters of September 29 repeated their previously stated intention to put into effect their own economic packages covering residential employees only. However, as stated. the letters of September 29 informed Respondent that Active and Hoff were putting in force changes they had sought in the inside agreement. presumably covering only employ- ees performing commercial work. On July I Active employed one person for residential work who had not been hired through the referral system, and three persons performing com- mercial work who had been so referred. On the same date. Hoff had three employees doing residential work. none of whom had been referred by the Union. and had four union-referred employees engaged in commercial work. 306 lOCA. . I NI(N =323 the terms of the inside agreement on work done by residential employees. According to the Union, how- ever, the inside agreement applied to residential work after June 30, and the charges related to violations of that contract. Later the same day, the labor management com- mittee of NECA convened formally to hear the charges. The Employers and Respondent essentially restated their positions, and the correspondence re- ferred to above was reviewed. Respondent asserted that Active and Hoff had breached the inside agree- ment by not meeting the economic terms of that con- tract in connection with the performance of residen- tial work, and by not using only employees acquired through the referral system established under the in- side agreement. The Employers continued to insist that the inside agreement did not apply to residential work, and that NECA no longer had authority over them in this regard. Although the Union did not spe- cifically demand the discharge of any current employ- ees of the Employers, as noted, violations of the refer- ral system were alleged. Finally. on September 10, Active and Hoff were notified that they had been found guilty of the charges, hut without any indica- tion as to the precise bases of the violations or as to any remedy for them. The Administrative Law Judge's Decision The Administrative Law Judge dismissed the key allegation of the complaint that Respondent violated Section 8(b)(3) of the Act by insisting, over the objec- tions of the Employers, on the merger of two histori- cally separate bargaining units. He rejected Respon- dent's argument that separate units of electricians engaged in commerical and residential work were in- appropriate, noting that the Board has decided that such units may be appropriate if agreed upon by the parties.' He further found that Respondent and NECA had "voluntarily and mutually" created a separate, appropriate unit composed of residential employees, as evidenced by lower wages and fringe benefits and different working conditions specified for employees working under the residential as opposed to the inside agreement. However, the Administrative Law Judge also found that (I) upon expiration of the residential agreement on June 30, Respondent was under no obligation to negotiate a successor residen- tial contract with the Employers. (2) there was no historical bargaining relationship, on an individual employer basis, between Respondent and Hoff and Active concerning residential employees, and (3) the residential agreement was merely supplementary" to I nternational rotherha d ltr l orl 'r. A : ( 0 ( L) ( i d ofl Lcal nion o 58 (Steinnmet. Eectrial ( ntrruiitrs 4 oh ifton, In a) 234 NLRB 633 (1978) the inside agreement. so that upon expiration of the residential agreement, the inside agreement automati- cally became applicable to residential work. From these premises, the Administrative Law Judge con- cluded that Respondent lawkfully demanded that Ac- tive and oft respect the terms of the inside agree- ment as regards residential work after June 30. both in its letters to the Employers both on June 22 and on August 16. and that it lawfullx sought to ent;rce its demands bh filing charges under the inside agree- ment. Nonetheless, the Administrative l.aw Judge did find that Respondent violated Section 8(b)(2) and (I)(A) of the Act to the extent its letters of June 22 and August 16 demanded that residential employees hired before June 30 be discharged for not having been referred through the Union. In the opinion of the Administrative Law Judge, this constituted an at- tempt to impose retroactively an otherwise lawful ex- clusive referral system and thus was illegal. However, he found no violation to the degree that the letters represented a demand that employees hired after June 30 (and before October I) be obtained through the referral system., inasmuch as this would be a law- ful effort to insure compliance with the inside agree- ment. The Administrative Law Judge found no viola- tion of Section 8(b)(2) and (I )(A) of the Act in Respondent's charge that the Employers had violated the exclusive referral provision of the inside agree- ment, because the evidence did not clearly show that this amounted to an effort to secure the discharges of employees hired before June 30. Narrative Conclusions The Administrative Law Judge's erroneous refusal to find the additional violations alleged by the Gen- eral Counsel results largely from application of incor- rect legal principles to the facts he found. Thus, he properly found that NECA and Respondent "volun- tarily and mutually" created distinct units of com- mercial and residential electricians by the execution of the residential agreement in 1973,9 and that such units were appropriate. Contrary to the Administra- tive Law Judge, however. Respondent could not law- fully insist that the residential and commercial units In delermining lihat separate unirs Consisting of residential and cornier cial electricians had been established. the Administrative Law Judge stressed the different wages and fringe benefits provided for employees working un- der the residential agreement. This conclusion is also supported b these factors: The residential agreement recognized the Union as the exclusive representative of the residential electricians: specified the precise type of work covered by the contract: stated that it applied to work performed exclusively under the contract: erected a separate grievance and arbitration structure to resolve disputes arising under the contract: created job classifica- tions which did not exist under the inside agreement: permitted the Emplos- ers to hire electricians "off the street" rather than through an exclusive refer- ral arrangements: and contained a clause referring to "this bargaining unit" 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be combined, without the consent of the Employers, under the terms and conditions of the inside agree- ment. For the Board has stated that: . . it is well established that the integrity of a bargaining unit, whether established by certifica- tion or by voluntary agreement of the parties, cannot ... be unilaterally attacked. The conduct of negotiations on a basis broader than the estab- lished bargaining unit is nonmandatory, and the Respondents' insistence that the Charging Party engage in such bargaining was violative of the Act. 0 In the instant circumstances, Respondent demanded in its letters of June 22 and August 16 not merely that negotiations be conducted on a broader basis than the established units, but insisted that the terms and con- ditions of employment governing employees in one unit immediately be applied to electricians working in the other unit. By this conduct, Respondent violated Section 8(b)(3) of the Act. Respondent also violated that section of the Act by seeking to enforce the terms of the inside agreement against work done in the res- idential unit through the means of the grievance and arbitration machinery of that contract." Respon- dent's letters of June 22 and August 16 also explicitly demanded that the Employers obtain employees only through the exclusive referral system of the inside agreement, and the June 22 letters informed the Em- ployers that their current residential employees should be dismissed by June 30. Respondent further sought to force the Employers to obtain employees only through the union referral system by alleging violations of the referral provision of the inside agree- ment in the charges it filed on August 20 pursuant to that agreement. By these actions, Respondent vio- lated Section 8(b)(2) and ()(A) of the Act, inasmuch as they were attempts to cause the Employers to dis- criminate against employees in violation of Section 8(a)(3) of the Act, which had the effect of restraining and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. The Administrative Law Judge's reasoning in reaching different conclusions may be treated briefly. First, his observation that Respondent did not have a legal obligation to bargain with Active and Hoff on behalf of their residential employees, if it did not de- sire to represent them, is correct as a statement of law, though irrelevant, and contains a faulty premise. Respondent clearly, at all times, sought to represent 10 G. B. Curry, President; International Union of Operating Engineers, Local No. 428, et al., 184 NLRB 976. 977 (1970), enforcement denied on other grounds 459 F.2d 374 (3d Cir. 1972), petition for modification of opinion granted 470 F.2d 722 (3d Cir. 1972). II See Retail Clerks Local 588, Retail Clerks Internarional Association, AFL-CIO (Raley's), 224 NLRB 1638 (1976), enforcement denied 565 F.2d 769 (D.C. Cir. 1977). residential electricians employed by the Employers. The violation of Section 8(b)(3) of the Act consists in Respondent's unlawful efforts to enlarge the unit of commercial electricians, covered by the inside agree- ment, to include the distinct unit of residential em- ployees. Respondent was, of course, free at any time to disclaim interest in representing the employees, but it was not privileged to demand their inclusion in an- other unit. The Administrative Law Judge's factually correct statement that there was no bargaining relationship, on a single-employer basis, between Active and Re- spondent and Hoff and Respondent for a unit com- posed exclusively of residential electricians is without legal significance. It is not disputed that Respondent consented to the Employer's timely withdrawal from NECA of its authority to bargain for them concern- ing their residential electricians. In this circum- stances, the following well-settled principle applies: "A unit limited to employees of the employer be- comes appropriate if the employer unequivocally manifests its intention to withdraw from multiem- ployer bargaining and to pursue an individual course of action after proper notice at an appropriate time." 2 Finally, the Administrative Law Judge's character- ization of the inside agreement as a "primary" agree- ment which became applicable on June 30 to residen- tial employees upon the expiration of the "supplemental" residential agreement is contrary to his own factual findings. The residential agreement plainly established separate terms and conditions of employment for residential electricians in a separate unit appropriate for purposes of collective bargaining, and the Administrative Law Judge so found. From this the Administrative Law Judge should have con- cluded, for the reasons we have already indicated, that Respondent unlawfully attempted to compel the Employers to merge the two units. The Administrative Law Judge, as noted, did find violations of Section 8(b)(2) and (1)(A) of the Act to the extent that Respondent in its letters of June 22 and August 16 demanded the termination of the Em- ployer's residential employees hired prior to June 30. He concluded that this was an unlawful effort to ap- ply, retroactively, the exclusive referral provision of the inside agreement to residential work, because the inside agreement did not cover residential work until July 1. However, as we have found that Respondent was not privileged to insist that the terms of the inside agreement be applied to residential work at any time, Respondent also violated Section 8(b)(2) and ()(A) of the Act to the degree that its letters of June 22 and 12 Tulsa Sheet Metal Works, Inc., 149 NLRB 1487. 1498-99 (1964), enfd. 359 F.2d 62 (3d Cir. 1966). 308 LOCAL UNION =323 August 16 represented demands that residential em- ployees, either before or after June 30, be hired only through the exclusive referral arrangement of the in- side agreement and that employees not so obtained be discharged. The Administrative Law Judge also found no vio- lation of Section 8(b)(2) and (1)(A) of the Act in Re- spondent's attempt to enforce the exclusive referral provision of the inside agreement against residential work by filing charges under the grievance and arbi- tration clause of that contract. In his judgment, there was no specific indication that the charges were based on the Employer's failure to terminate employees not hired through that system. But the record clearly shows that the charges were prompted by the Em- ployer's refusal to apply the exclusive referral provi- sion of the inside agreement, as well as other terms, to employees performing residential work. Again, hav- ing found that Respondent could not lawfully de- mand that the Employers observe the terms of the inside agreement as regards residential employees, it was a violation of Section 8(b)(2) and (1)(A) of the Act for Respondent to seek to enforce the exclusive referral arrangement of the inside agreement against the Employer's residential employees by the dispute- settlement mechanism of that contract. In his dissenting opinion Chairman Fanning, sub silentio, takes issue with one of the Administrative Law Judge's key findings, as well as with the follow- ing chain of logic upon which our decision rests. Point one: Chairman Fanning finds that a separate "contractual unit" as opposed to a separate bargain- ing unit was established covering residential work by Respondent and NECA in 1973. Notwithstanding his statement that "[t]here is an obvious distinction be- tween contractual units and bargaining units," we are aware of no authority drawing such a distinction, and he calls our attention to none. Traditionally, a collec- tive-bargaining agreement defines the scope of the recognized bargaining unit. In this case, as pointed out at footnote 9, supra, and accompanying text, the evidence fully supports the Administrative Law Judge's finding that a separate unit encompassing em- ployees performing residential work was created when NECA and Respondent executed the original residential agreement.' Indeed, it is difficult to see how our dissenting colleague can disagree when the 1 Our dissenting colleague observes that the recognition clause of the in- side agreement. purporting to cover all electrical work, was not altered when the separate residential agreement was concluded. However, the recognition clause of the residential agreement, recognizing Respondent as the represent- alive of employees performing residential work, was clearly in derogation of the recognition clause of the inside agreement. and the terms and conditions of employment described in the residential agreement were totally inconsis- tent with those contained in the inside agreement. See fn. 9. rupra. and accompanying text. We therefore see no significance in the failure of the parties to amend the recognition clause of the inside agreement. parties to the residential agreement themselves re- ferred to "this bargaining unit" in the contract.'4 Point two.: A separate bargaining unit for employ- ees performing residential work having been estab- lished on a multiemployer basis, it is settled law, as previously noted, that a bargaining unit limited to employees of a single employer within the group be- comes appropriate upon the timely withdrawal of that employer from the association. There is no ques- tion that Active and Hoff each timely withdrew from multiemployer bargaining concerning both their com- mercial and their residential employees." Point three: The legal conclusion now follows logi- cally from the two preceding points. Because separate units confined to the residential and commercial em- ployees, respectively, of Active and Hoff were appro- priate, longstanding precedent holds that Respondent could not lawfully demand the merger of the com- mercial and residential units of each employer in the absence of their consent. For this reason, Respondent violated Section 8(b)(3) of the Act in attempting to secure such a merger without the agreement of Active or Hoff, and, in circumstances already described, fur- ther violated Section 8(b)(2) and (I)(A) of the Act. Accordingly. we shall amend the Administrative Law Judge's Conclusions of Law and enter an Order against Respondent consistent with those conclusions. AMENDED CONCLUSIONS OF LAwN i. Active Enterprises, Inc., and J. F. Hoff Electric Co. are employers within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and has been at all times mate- rial herein, a labor organization within the meaning of Section 2(5) of the Act. 3. Units limited to employees of Active performing commercial electrical work and residential electrical work, respectively, are appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Units limited to employees of Hoff performing commercial electrical work and residential electrical work, respectively, are appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein, Respondent has represented a majority of the employees in each of the 14 The dissent is correct in stating that Respondent and NECA signed the residential agreement to permit the unionized members of NECA to compete more successfully with nonunion contractors. But this fact properly refers only to the reason for creating a separate residential unit, not to whether such a unit was in fact established. ts In light of this fact. the dissent's suggestion that Active and Hoff unlaw- fully sought to compel negotiations on a narrower basis than was appropri- ate is. in our view. without merit 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate collective-bargaining units described in Conclusions of Law 3 and 4, above, and has been the representative of all employees in each unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(b)(3) of the Act by insisting, over the objections of Active and Hoff, on the merger of the separate units composed of com- mercial and residential electricians of each Employer, and by seeking to enforce its demands that the units be merged by filing charges against the Employer un- der the grievance and arbitration provision of a col- lective-bargaining agreement covering only employ- ees performing commercial work. 7. By attempting to cause the Employers herein to discriminate against their residential employees in violation of Section 8(a)(3) of the Act, as found above, the Union has engaged in unfair labor prac- tices within the meaning of Section 8(b)(2) of the Act. 8. By restraining and coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(l)(A) of the Act. 9. The aforesaid violations are unfair labor prac- tices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Local Union No. 323, International Brotherhood of Electri- cal Workers, West Palm Beach, Florida, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Demanding, over the objections of Active En- terprises, Inc., and J. F. Hoff Electric Co., that sepa- rate, appropriate collective-bargaining units limited to the employees of each Employer performing com- mercial and residential electrical work, respectively, be merged, and seeking to enforce any such demand by filing charges against the Employers under the grievances and arbitration provision of a collective- bargaining agreement covering only employees per- forming commercial work. (b) Attempting to cause Active Enterprises, Inc., and J. F. Hoff Electric Co. to discharge, or otherwise deny employment to, any employee, by demanding that the exclusive referral provision of a collective- bargaining agreement covering only employees per- forming commercial electrical work be applied to em- ployees performing residential work. (c) In any other manner restraining or coercing employees of Active Enterprises, Inc., and J. F. Hoff Electric Co. in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify Active Enterprises, Inc., and J. F. Hoff Electric Co., in writing, with copies to affected em- ployees, that it has no objection to the continued em- ployment of residential electricians not hired through an exclusive referral arrangement contained in a col- lective-bargaining contract governing only the terms and conditions of employment of commercial electri- cians employed by the Employers. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."'6 Copies of said notice, on forms provided by the Re- gional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and return to said Regional Director suffi- cient copies of the attached notice marked "Appen- dix" for posting by Active Enterprises, Inc., and J. F. Hoff Electric Co., if willing, in conspicuous places, including all places where notices to employees are customarily posted. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. CHAIRMAN FANNING, dissenting in part: It is indeed "well established that the integrity of a bargaining unit, whether established by certification or by voluntary agreement of the parties, cannot ... be unilaterally attacked." But that hardly seems perti- nent to this case. There has never been a bargaining unit covering only the Charging Parties' residential employees. It is also well established that "the conduct of ne- gotiations on a basis broader than the established bargaining unit is nonmandatory." But the same ap- plies to negotiations on a basis narrower than the es- tablished unit. That is precisely what Active and Hoff sought to do here. They, and other employers, were parties to a collec- tive-bargaining agreement with Respondent. The agreement covered both commercial and residential It 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 b order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an order of the Na- tional Labor Relations Board." 310 LOCAL UNION =323 work. The agreement did not cover "residential" em- ployees or, tbr that matter, "commercial" employees. It covered employees, any employees, all employees who performed electrical wiring. Because there was one agreement setting forth conditions of employ- ment equally applicable to commercial and/or resi- dential work the employers subject to the agree- ment considered themselves disadvantaged with respect to securing residential contracts or subcon- tracts. They appealed to the Respondent, or, as it aptly puts the matter, they "asked for a break." The "break" they sought was a separate agreement cover- ing residential work, an agreement which would set forth employment conditions different than those found in the existing agreement and likely to improve the covered employers' bidding capacity. No doubt because the logic behind the expectation was persuasive, and, in that, Respondent could expect more work and more members, it gave those employ- ers the "break" they asked for. The "break" did not take the form of individual contracts with those em- ployers in the multiemplover group. It was a mul- tiemployer contract covering only residential work, only residential employees, and, of course, Active and Hoff. Within 3 years, Active and Hoff indicated, in timely fashion, their intention to withdraw from the multiemployer group. Nonetheless, they demanded continuing application of the "break": that is, each asserted its "right" to negotiate a single-employer contract covering commercial work and a single-em- ployer contract covering residential work, and the ba- sis for the assertion was the "historically separate bar- gaining units" Respondent had permitted them, and the rest of the group, to have. I do not think the "break" outlived participation in the multiemployer group. Quite apart from the likeli- hood that the breadth of the group was a driving force behind the "break" in the first instance,' I do not believe an appreciation for the historical origins of the "break" justifies the conclusion that separate and distinct units for bargaining emerged from Re- spondent's attempt to accommodate the wishes of the multiemployer group. The inside, or so-called com- mercial, agreement sets out a recognition clause clearly broader than commercial work, encompassing all electricians within the employ of all signatory and assenting employers. In point of fact, the word "com- mercial" does not even appear in the inside agree- ment. If the residential unit was mutually intended to constitute a separate bargaining unit, one would an- " If we assume, as we fairly may, that additional work and additional members were the quid pro quo for the "break," it follows that how much work and how many members were a consideration. Negotiating one con- tract covering 20 employers and generating x additional work and y addi- tional members requires substantially less of a union than does negotiating 20 contracts generating work and membership of the same proportions. ticipate that its creation would result in some alter- ations of the existing inside agreement. But that is not the case. On the basis of the terms of the inside agree- ment, the labor management committee of the mul- tiemployer group, apparently without dissent, con- cluded that both Active and Hoff were in breach of the agreement by not applying the agreement to the performance of residential work in the absence of a continuing residential agreement. There is an obvious distinction between contractual units and bargaining units.' 8 Under circumstances such as found here, and with due regard for the entire history of the bargaining relationship. I see little justi- fication for the conclusion that the "break" vas mu- tuall intended to create separate bargaining, as op- posed to contractual, units. Like the Administrative l.aw Judge, I would treat the residential contract as no more than a supplement to the broader inside agreement and not as establishing a separate unit for bargaining outside the multiemployer group. I there- fore dissent not only from the majority's 8(b)(3) find- ings but from the additional 8(b)(2) and (I )(A) find- ings which flow from them. Accordingly. I would adopt the Administrative Law Judge's Decision in its entirety. 1, If there were not, the majority could not conclude that the inside agree- ment covers only commercial employees, because, as its recognition clause makes clear. the inside agreement covers all electricians. But, based on its assessment of surrounding facts, the majority concludes that the contractual unit. i e. the unit set forth in the inside agreement. is not really the bargain- ing unit in this case tloweser clear the distinction is, it is certainly clearer than why the majority would to to such lengths to dispute a principle t is embracing. APPENDIX NOir(T rTo MEMBERS P()SIED BY ORDER OF THE NATIONAl. LABOR REI.ATIONS BOARD An Agency of the United States Government WE Wl.l. NOT demand, over the objections of the Active Enterprises, Inc., and J. F. Hoff Elec- tric Co., that separate, appropriate collective- bargaining units limited to the employees of each Employer performing commercial and residen- tial electrical work, respectively, be merged, and seek to enforce any such demand by filing charges against Active and Hoff under the griev- ance and arbitration provision of a collective- bargaining agreement covering only employees performing commercial work. WE WILI. NOT attempt to cause Active Enter- prises, Inc., and J. F. Hoff Electric Co. to dis- charge, or otherwise deny employment to, any employee. by demanding that the exclusive refer- ral provision of a collective-bargaining agree- ment covering only employees performing com- 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mercial electrical work be applied to employees performing residential work. WE WILL NOT in any other manner restrain or coerce employees of Active Enterprises, Inc., and J. F. Hoff Electric Co. in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL notify Active Enterprises, Inc., and J. F. Hoff Electric Co., in writing, with copies to affected employees, that we have no objection to the continued employment of residential electri- cians not hired through an exclusive referral ar- rangement contained in a collective-bargaining contract governing only the terms and conditions of employment of commercial electricians em- ployed by Active and Hoff. LOCAL UNION No. 323, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge: This case was heard before me on August 25, 1977 at Coral Gables, Florida. The charge in Case 12-CB-1742-1 was filed on September 2, 1976, by Active Enterprises, Inc., and the charge in Case 12-CB-1742-2 was filed on the same date by J. F. Hoff Electric Co., herein called Active and Hoff respectively, and the Employers, collectively. The con- solidated complaint' issued April 29, 1977 alleging that Lo- cal Union No. 323, International Brotherhood Electrical Workers, herein called the Union, violated Section 8(b)(3), (2), and ()(A) of the National Labor Relations Act, herein the Act, by insisting, over the Employer's protests, on the merger of two historically separate bargaining units, by de- manding the termination of all of the Employer's residential wiring employees, and by resorting to the arbitral machin- ery as a means of forcing the Employer's acquiescence to the merger of the said two historically separate bargaining units, and to the termination of all of the Employer's resi- dential wiring employees. The Union, in its answer denied the commission of any unfair labor practices. Representatives of all parties were present and were given full opportunity to participate in the hearing and sub- sequently filed briefs. Based upon the entire record, includ- ing my observation of the witnesses, and after due consider- ation of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Active Enterprises, Inc., is engaged in the construction industry as an electrical contractor with its principal office and place of business located at Lake Worth, Florida. Dur- ing the 12 month period September 26, 1975, through Sep- ' Motions to amend the complaint in certain technical aspects were granted during the hearing. tember 25, 1976, Active purchased and received materials at its Lake Worth, Florida, place of business valued in ex- cess of $50,000 from suppliers within the State of Florida, who themselves received these materials directly from points located outside the State of Florida. J. F. Hoff Electric Co., is engaged in the construction industry as an electrical contractor with its principal office and place of business located at Tequesta, Florida. During the 12 month period October 1, 1975, through September 30. 1976, Hoff purchased and received materials at its Tequesta, Florida place of business valued in excess of $50,000 from suppliers within the State of Florida, who themselves received these materials directly from points lo- cated outside the State of Florida. I find that Active Enter- prises, Inc., and J. F. Hoff Electric Co. are and at all times material herein, have been, employers engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Facts The Florida East Coast Chapter, National Electrical Contractors Association, herein called the Association, is a nonprofit corporation comprised of business firms engaged as electrical contractors and subcontractors in the construc- tion industry which, among other things, represents its em- ployer members, as well as other contractors who have signed letters of assent, for purposes of collective bargaining with various labor organizations, including the respondent union. For a number of years the Association and the Union were parties to a series of collective-bargaining agreements (Inside Wireman Working Agreements) which covered the employees of the participating employers en- gaged in the electricians trade, both in commercial and in the residential phases of the industry. Among other things, these Inside Wireman Working Agreements required em- ployers bound by the agreements to utilize the Union's hir- ing hall for purposes of obtaining employees engaged in the electricians trade. On September I, 1973, Active,2 by virtue of a letter of assent, became a party to and bound by the Inside Wire- man Working Agreement previously negotiated. Similarly, on October 22. 1974, Hoff also became a party to and bound by the Inside Wireman Working Agreement. The last such Inside Wireman Working Agreement to which both Active and Hoff were parties and by which they' were bound was effective September 1, 1974. through September 30, 1976. While there was, at the time, an Inside Wireman Work- ing Agreement still in effect, the Association and the Union 2 Active had previously been bound by the 1971 Inside Wireman Working Agreement and had applied its provisions to all work-residential and com- mercial. 312 LOCAL UINION =323 negotiated and executed, effective July 1. 1973. a separate collective bargaining agreement covering residential em- plovees employed by employer members. This residential agreement was subsequently extended in 1974 for an addi- tional I year period to June 30. 1976. The purpose of the new Residential Wiring Agreement was to permit the em- ployer members to become more competitive with non- union contractors b permitting them to pay their employ- ees employed on residential jobs a lower wage and less costly fringe benefits than those employed on commercial jobs. It also permitted them to obtain employees from any source, unlike the referral requirements provided in the In- side Wireman Working Agreement. In 1973 both Active and Hoff. by virtue of letters of assent. became parties to and bound by the Residential Wiring Agreement. There- after, if these Employers assigned a residential job to an employee hired outside the Union hall and employed under the Residential Wiring Agreement. he was paid the lesser wage and worked under conditions provided by that con- tract. If they assigned a residential job to an employee re- ferred through the Union hall and employed under the con- currently extant Inside Wireman Working Agreement, he was paid the greater wage and worked under conditions provided by the latter contract. In January 1976. Active and Hoff gave both the Associ- ation and the Union unequivocal notice that they no longer wished to be represented by the Association for purposes of collective bargaining and were terminating the existing Res- idential Wiring Agreement upon its expiration date of June 30, 1976.1 They thereby withdrew authority to be bound by the Association in any subsequent bargaining concerning the employees working under the Residential Working Agreement. In April. 1976. Active and Hoff gave similar notice to both the Association and the Union with regard to the In- side Wireman Working Agreement and thereby withdrew authority to be bound by the Association in any subsequent bargaining concerning the employees working under the In- side Wireman Working Agreement. By letter dated June 22, 1976, the Union acknowledged receipt of the January letters from Active and Hoff. The termination of the Residential Wiring Agreements men- tioned therein were consented to,' effective June 30. but the Employers were reminded of the still extant Inside Wire- man Working Agreement. Article II, Section 2.03 which was to remain in effect until September 30. 1976: The Employer recognizes the Union as the exclusive representative of all its employees performing work within the jurisdiction of the Union for the purpose of collective bargaining in respect to the rates of pay. wages, hours of employment and other conditions of employ ment. Any and all such employees shall receive at least the minimum wage and work under the condi- tions of this Agreement. This will serve as notice, that no later than midnight. June 30. 1976, you are expected to terminate your "res- idential employees." You will be required to perform all your electrical work with employees acquired Neither Active nor Hoff gave notice to the mediation services. 4Meanwhile on July 10, 1976, the Union and Association entered into a new Residential Wiring Agreement through the referral procedure of the Inside Wiring Agreement ... Neither Active nor Hoff made immediate reply to the Union's June 22 letter. On June 30. the Union sent to Ac- tive and Hoff proposed changes in the Inside Wireman Working Agreement which, since they were no longer to be represented by the Association. the Union proposed to ne- gotiate with them separately. On July 30 and 31. Active and Hoff. respectively. finally replied to the Union's June 22 letter. objecting to and char- acterizing as unlawful, the Union's attempt to impose upon them. the provisions of the Inside Wireman Working Agreement while neglecting to negotiate over the terms and conditions of a successor agreement to the Residential Wir- ing Agreement which had terminated on June 30. 1976. These letters contained offers to meet and negotiate new residential agreements as well as refusals to discharge resi- dential electricians on grounds that such discharges would be unlawful. On July 31. Hoff also replied to the Union's June 30 letter offering to meet with it for the purpose of negotiating changes in the Inside Wireman Working Agree- ment. On August II and 12. Active once again sent letters to the Union requesting that negotiations for new residential and inside wiring contracts be undertaken. On August 16 the Union advised both Active and Hoff that it did not desire to negotiate a residential agreement with them' and reminded them that the Inside Wireman Working Agree- ments was still in effect. would remain in effect until Octo- ber I and demanded compliance with its provisions includ- ing the requirement that all electrician employees be hired through the union hiring hall referral system.' On August 25 Active. by letter, once again asked the Union to bargain a new Residential Wiring Agreement and offered to negotiate a new Inside Wireman Working Agree- ment as well, the latter to be applied only to commercial work. Proposed changes to the Inside Wireman Working Agreement were also sent. On September 8, Hoff likewise sent proposed changes to the Inside Wireman Working agreement. On September 21 and 22 Active and Hoff again renewed their requests for bargaining on a new Inside Wire- man Working Agreement while on the same date, by sepa- rate communications, they advised the Union that in view of its position, they were putting into effect their own eco- nomic packages covering their residential employees. These intentions were reiterated through letters dated September 29. Neither Active nor Hoff received any response from the Union with regard to their repeatedly stated desire to nego- tiate a new residential agreement. On October I Hoff's in- side wiremen failed to report for work and thereafter never returned as employees of Hoff. Though the Union refused to negotiate a separate resi- dential agreement with Active and Hoff it did negotiate a new residential agreement with the association which re- mained in effect from July 1976 through July 10, 1977 after sOn July 10. the Union and the Association had negotiated a new Resi- dential Wiring Agreement which provided for loer wages than the Inside Wireman Working Agreement but also provided. unlike the previous resi- dential agreements. for referral of all electrician employees through the union hall. I Upon receipt of this letter both Active and Hoff ceased paying fringe benefits due under the residential agreement 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it was not renewed. Thereafter, the Inside Wireman Working Agreement between the Union and the Associ- ation covered both commercial and residential work just as it had prior to 1973. Meanwhile, as of July 1, Active had on its payroll one employee doing residential work who had not been referred through the union hall and three employees doing commer- cial work who had been referred in accordance with the Inside Wireman Working Agreement. Hoff at this time had three employees doing residential work who were not re- ferred through the union and four employees who had been referred through the hall. On or about July 4, Active terminated two of the three employees doing commercial work and did not hire any replacements to do commercial work covered by the Inside Wireman Working Agreement before the September expi- ration date of that agreement. Four new employees were hired "off the street" in July and August to do residential work and although Active paid fringe benefits into the Union's funds in July, it discontinued doing so thereafter, After July 1., Hoff too, hired new employees to do residen- tial work who were not referred through the union hall. On August 20, the Union filed charges against Active and Hoff with the Labor Management Committee of the N.E.C.A. under the Inside Wireman Working Agreement for failing to pay wages and fringe benefits as provided therein, and for hiring employees outside the referral sys- tem as required by the agreement. Subsequently. both Ac- tive and Hoff were advised of the charges and notified to appear before the Labor Management Committee on Au- gust 31 to answer the charges of alleged violations of the Local Union Inside Wireman Working Agreement. On August 31, at about 1:30 p.m., a meeting was held, attended by representatives of the Association, the Union, Active, and Hoff to discuss the charges filed by the Union against the two Employers. The Union took the position that since the Residential Wiring Agreement had expired, only the Inside Wireman Working Agreement remained in effect and the charges concerned violations of that agree- ment. Active and Hoff took the position that they still wanted to negotiate a new Residential Wiring Agreement but denied that the Association should represent them since both Active and Hoff had withdrawn authority from the Association to represent them in bargaining the previous January. The Union refused to negotiate a new Residential Wiring Agreement under any circumstances even if the Employers first agreed to negotiate a new Inside Wireman Working Agreement. The Employers countered that the Union acted unlawfully when it attempted to apply the terms of the Inside Wireman Working Agreement to the residential work. Nothing was apparently achieved during this meeting, and at 3:30 p.m. that afternoon the Labor Management Committee convened to consider the charges. During that hearing the correspondence as described above was reviewed. The parties reiterated their positions and Hoff once again asked the Union if it would negotiate the Inside Wireman Working Agreement with Hoff and Active to which the Union replied that it did not have to negotiate the inside agreement with any individual firm, only with the association. With regard to the charges themselves, the Union charged that Hoff and Active violated the Inside Wireman Working Agreement by paying less money in wages and by not hiring their employees through the hiring hall. The Employers took the position that whatever diffi- culties existed were a result of problems involving residen- tial work and since the Residential Wiring Agreement had expired and they had withdrawn authority from the Associ- ation to represent them, the Association had no jurisdiction over the problem. There is no evidence that the Union actu- ally demanded termination of Active's or Hoffs residential employees either during the first or the second meeting held on this date, although since failure to obtain employees through referral was charged, demand for termination of non-referred employees could possibly, though not neces- sarily, be inferred. By letter dated September 10, Active and Hoff were ad- vised that they had been found guilty of the charges as alleged. Inasmuch as the allegations refer to certain Article and Section numbers as do the findings whereby the Em- ployers are found to have violated the numbered Articles and Sections, but there appears nothing in the record to indicate precisely what the Employers did that amounted to a violation, there is no way of determining what actions taken by the Employers were considered violative. No rem- edy for the violations was suggested nor is there any indica- tion from the record as to whether or not there was compli- ance with any proposed remedy if, in fact, one was proposed. Position of the Parties Conclusion and Analysis General Counsel and the Charging Parties take the posi- tion that the Union violated Section 8(b)(3) of the Act by insisting, over the Employer's protests, on the merger of two historically separate bargaining units. General Counsel ar- gues that inasmuch as the Union and the Association since 1973 bargained separate agreements for separate units of residential and commercial electricians, there was and is an obligation for the Union to bargain similar contracts with Active and Hoff after their withdrawal from the Associ- ation, and it was an unfair labor practice for the Union to refuse to negotiate individual successor agreements and at- tempt to extend the Inside Wireman Working Agreement to cover all of the electricians employed by Active and Hoff for the remainder of the life of the inside agreement because the Union's action amounted to a merger of the historically separate bargaining units. The Union takes the position that there was only one unit of electricians represented by the Union, not two as alleged by the General Counsel, and that the Residential Wiring Agreement was terminated at the Employer's re- quests on July 1, 1976, leaving the Union with no obligation or duty to subsequently renegotiate a new agreement for residential work. With regard to the question of whether there were two units or one, the Union argues convincingly in its brief that "the sole purpose behind the execution of the residential agreement in 1973 was to enable the Employers to obtain residential work at a lower labor cost to themselves" and "to give the Employers a break." The Union points out that 314 LOCAL UNION 323 at the time it negotiated the residential agreement, there was no obligation for it to do so, since there was already in existence the Inside Wireman Working Agreement which covered all of the electricians employed by the participating employers, and therefore it should be apparent that it was never intended to create a separate unit of electricians in 1973. The Union argues, further, that the employees em- ployed by the Employers are by application of the classical indicia a single craft unit of electrical workers who are "re- quired to exercise the usual and recognized skills peculiar to craft electricians everywhere," and who have long been rep- resented by the I.B.E.W. The Union's brief concludes that electricians performing residential work cannot, as the Gen- eral Counsel suggests, constitute an appropriate bargaining unit and that the electricians who work on residences are merely one segment of the historical craft unit of electri- cians. The allowance of a separate bargaining unit of work- ers performing residential work and Union argues, would produce a segmentation of the type which the Board has found to be undesireable, and the creation of a unit consist- ing of the segment of electricians who perform residential work would therefore be inappropriate. Convincing as the Union's argument sounds, neverthe- less, the Board has found that although in the electrical contracting industry a combined residential and commer- cial unit has been found to be appropriate, so may they be separate units where the parties have voluntarily and by mutual consent agreed upon separate units. This is so, the Board has determined, even where a number of employees in the separate commercial and residential units are capable of doing either commercial or residential work; where some employers use such employees interchangeably: and where the same apprenticeship and licensing requirements apply to both residential and commercial employees. 7 The Board has concluded that a voluntarily and mutually agreed upon unit of residential employees is not obviously improper and may constitute an appropriate unit by itself. In light, in the instant case, of the bargaining history since 1973 for sepa- rate residential and commercial units of employees covered by separate labor agreements, I find that the voluntarily and mutually agreed upon separate units of residential and commercial electrical employees are appropriate.' This con- clusion is also supported by indications in the record that the employees in the residential unit under the Residential Wiring Agreements, in the instant case, have historically received different wages and fringe benefits and have been employed under different working conditions than were the employees working under the Inside Wireman Working Agreement. Therefore, in accordance with the arguments proffered by General Counsel and Charging Parties, I find the Residential Unit a separate and appropriate unit. With regard to the argument proffered by General Coun- sel that inasmuch as the Union and the Association since 1973 bargained separate agreements for separate units of residential and commercial electricians, there is an obliga- tion on the part of the Union to bargain similar contracts with Active and Hoff, I find, contrary to that view, that no such obligation exists. Both Active and Hoff were members of the Florida East 'International Brotherhood of Electrical Workers, AFL-CIO-CLC, and its Local Union No. 58, 234 NLRB 633 (1978). 'Id. Coast Chapter, N.E.C.A., and were bound by both the Res- idential Wiring Agreement and the Inside Wireman Work- ing Agreements negotiated on their behalf by the Associ- ation from the effective dates of those agreements up to the dates of their expiration. When both Active and Hoff in January 1976 unequivocally and in timely fashion stated that they no longer wished to be represented by the Associ- ation in collective bargaining for purposes of negotiating a new Residential Wiring Agreement and were terminating the existing agreement as of its expiration date, June 30, 1976, they effectively withdrew from multi-emploNer bar- gaining, and whether their intention was to terminate the agreement completely or merelv to open up the way for negotiating changes in the previously existing agreement. their decision to withdraw from the multi-employer bar- gaining unit and institute individual bargaining, was, in ef- fect, a timely demand for a change in the existing bargain- ing unit insofar as the employees of Active and Hoff were concerned. Whereas there was historical precedent for bar- gaining for a mulit-employer unit of residential employees, which unit had been mutually agreed upon, there is no such historically founded basis upon which the Employers can demand or require the Union to represent its residential employees alone. No bargaining relationship having previ- ously existed on an individual basis between Active and Hoff on the one hand and the Union on the other, there was no obligation on the part of the Union to bargain. The Board cannot compel a union to represent employees it does not, or no longer desires to, represent, and a refusal to bargain over such employees does not violate Section 8(b)(3) of the Act.9 II General Counsel and Charging Parties contend that the Union violated Section 8(b)(3) by insisting on merging the residential unit with the inside wireman's or commercial unit. I do not find, however, that the facts support this argu- ment. Rather, it appears that prior to 1973 the Inside Wire- man Working Agreement was the only agreement in exis- tence and it covered all electricians whether they did residential or commercial work, or both. In 1973, the Resi- dential Wiring Agreement was signed, supplementing the Inside Wireman Working Agreement, permitting those em- ployers signatory thereto to apply to the newly created unit, terms and conditions of employment separate and distinct from the terms and conditions of employment applicable to the inside wiremen or commercial electricians. With the timely notice of withdrawal of Active and Hoff from the Association in January and the expiration of the Residen- tial Wiring Agreement on June 30, there was still left in effect the Inside Wireman Working Agreement which was still applicable to all electricians employed by those em- ployers including the Charging Parties herein, who were parties to that agreement by virtue of their membership in the Association or by their agreement to be bound by the terms of the contract which the Association negotiated with the Union. This agreement remained in effect after June 30 9 Local 44 and Washington State Association f' the UInited Association o/' Journeymen and Apprentices of the Plumbing and Pipefitting Industr9' of the Unied States and Canada. A FL CIO. 195 NLRB 225 ( 1972). 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until September 30 and Charging Parties, still being bound by the terms of that agreement were required to observe its provisions. The Union was within its rights in demanding that the Charging Parties abide by its provisions including the wage and fringe benefits provided therein and the hiring hall referral provisions. Far from a merger taking place, there was merely the expiration of a supplemental agree- ment which left in effect the primary agreement negotiated lawfully and in good faith, the provisions of which auto- matically became applicable as of July 1.0 III Inasmuch as the expiration of the Residential Wiring Agreement occurred on June 30 and the Inside Wireman Working Agreement still remained in effect until September 30, all of the provisions of the Inside Wireman Working Agreement including wages, fringe benefits, and hiring hall referrals, became effective as of July 1, and it was incum- bent upon the Charging Parties who were still parties to that agreement to abide by its terms. When they failed to do so, by paying their electricians wages below those re- quired by the extant agreement and by refusing to abide by the hiring hall referral provisions, the Union notified them of the necessity of compliance. The Union's insistence on compliance with the wages and other working conditions during the period July I through September 30 was fully justified inasmuch as the Inside Wireman Working Agree- ment was in effect at the time. However, the Union's letter of June 22, 1976 also contained the following demand: This will serve as notice, that no later than midnight, June 30, 1976, you are expected to terminate your "res- idential employees." You will be required to perform all your electrical work with employees acquired through the referral procedure of the Inside Wiring Agreement. To the extent that this letter contains a demand that em- ployees already hired by the Employers under the Residen- tial Wiring Agreement be terminated as of June 30, 1 find such a demand to be violative of Section 8(b)(2) and 8(b)(lXa) as it is clearly an attempt on the part of the Union to give retroactive effect to the Inside Wireman Working Agreement which was not scheduled to take effect until June 30. Thus, it has been held that the discharge of an employee at the insistence of a union or the demand for such discharge by a union because the employee had not been referred by the Union hiring hall is the plainest kind of discrimination," and although it is true that certain forms of discrimination may be legally permissible, as where an employer and a union have agreed that hiring shall be done through a non-discriminatory union-operated hiring hall," such a lawful hiring hall clause cannot be ap- plied retroactively, that is, to justify the discharge of an employee who was hired before the hiring hall clause be- 10Cases cited in the General Counsel's and Charging Parties' are clearly distinguishable on the facts. " Austin & Wolfe Refrigeration, Air Conditioning and Heating, Inc., 202 NLRB 135 (1973). 12 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America [Los Angeles-Seattle Motor Express v. N.L.R.B., 365 U.S. 667 (1961). came operative." In the instant case the Union unlawfully demanded the termination of employees who had been hired "off the street" during the period that the Residential Wiring Agreement, which permitted such hiring, was ex- tant, termination to take effect as of the time the Inside Wireman Working Agreement was due, once again, to be reinstated. On the basis of the cases cited, I find that the Union, by issuing such a demand, was in violation of the Act. To the extent that the June 22 letter required, though only implicity, that all employees hired subsequent to June 30 (and before October I) be acquired through the referral procedure of the Inside Wireman Working Agreement, I find no violation, for this request amounts only to a demand that the Employers abide by the Inside Wireman Working Agreement during the period that it was to be in effect. Similarly, with regard to the August 16 letters, which must be read in the context of the entire congeries of events, to the extent that they may be interpreted as a demand that the employees hired "off the street" during the period that the Residential Wiring Agreement was in effect, should be deprived of the opportunity to do work "to be performed under the terms and conditions of the Inside Agreement" because they were not "workmen properly obtained through the referral procedure." Such demand is also viola- tive since, if it is a violation, as found herein, for the Union to demand their termination, it is likewise a violation for the Union to demand that they not be permitted to be as- signed duties and to be remunerated in return therefor. To the extent, however, that these letters merely once again demand that the Employers abide by the conditions of the Inside Wireman Working Agreement without interfering with the Section 7 rights of those employees hired prior to June 30 under the Residential Wiring Agreement, I find them innocuous. IV On August 20, when the Union filed charges against the Employers under the Inside Wireman Working Agreement it was perfectly within its rights to do so inasmuch as that agreement was in effect at the time. The charges, brought under article I, section 1.10, were not explicit as to the pre- cise nature of the violations but alleged, broadly, breaches of article II, section 2.03 having to do with the Union's status as the exclusive representative of the Employers' em- ployees and the requirement that all such employees receive the minimum wages and work under the conditions of the Inside Wireman Working Agreement. The precise nature of the alleged violations cannot be determined from a reading of the August 20 letter but since the Employers were paying below scale, it may safely be assumed that this was the basis for the charge as it concerns Section 2.03. Without deciding the merits of the charge therein, I see no reason why the Union could not legitimately file such a charge if it felt that the Employers were violating the agreement in this respect. The charges further allege a violation of article II, section 3.02, concerning referrals. Once again, since under the con- I1 Austin d Wolfe Refrigeration, supra,. Teamsters Local Union No. 676. affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, (Tellepsen Petro-Chemical Company), 172 NLRB 948. affd. 419 F.2d 1274 (3d Cir. 1969). 316 I.OCAL. INION =323 tract the Utnion was to he "the sole and exclusive source of referrals of applicants for employment" and the Employers were bound h) this agreement. et nevertheless hired new employees off the street during the period July I to Septem- her 30. 1976. the Union was within its rights in bringing charges against the Employers for breaching the agreement in this respect. If. in fact the nion brought charges of violation of Section 3.02 against the Emploers because the. failed to terminate emploees properli hired off the street prior to July 1 as permitted by the Residential Wiring Agreement. the bringing of such charges ma\ well have been a violation of Section 8(h)(21 and (I)(A) as I have alreads found with regard to the Union's letters of June 22 and August 16. But the record is not clear as to precisel what the basis of the Union's charge was insofar as it con- cerned alleged violations of section 3.02 of the agreement. Moreover. although General Counsel called as its witnesses. Jack F. Iloff. onald Fuchs. Sr.. and Walter Bost. all of whom were present during the .abhor-Management hearing. none of them were questioned about what was said during the hearing and meeting of August 31 as to an possible demand for termination of Active's or Hoffs residential emploees. I must assume that if the charges filed b the Union with the l.abor-Management Committee of the As- sociation against Active and Hoff were based upon the Em- plovers' failure to terminate the residential employees. then that subject would have been discussed at the August 31 hearing and ift discussed. would have been the subject of testimony elicited from Hoff and Fuchs during the unfair labor practice hearing before me. No such testimony p- pears in the record. Theret'fore. inasmuch as neither the alle- gations brought against Acti e and Hoff b' the nion. nor the decision rendered bh the Labor-Management Commit- tee follo% ing their hearing. nor the testimony otf General Counsel's witnesses during the instant proceedilgs. in an, way. specifically entions the failure of the Emploers to terminate their residential employees being as the bhsis for the charges brought against them b tile nion. I am un- willing to conclude that said charges had that objecti e. particularly in light of the fact that there were other legiti- mate and law tful blses upon which thile allegations could be found to rest. Consequentll . I find that the General CouLn- sel h;as failed to support with a preponderance of the cei- dence. the allegation in the complaint that the Union filed charg;es agitnst Active and Hoff, as an exlension of its de- nmand that all emploees of Actise and Ilotf perftoriingl residential ork who were not hired through the Union's hiring hall. be terminated. The allegations of violations of article V\. sections 6.01. 6.02. 6.03. and 6.04 having to do with the ailure of Active and Hlotf to pa,; into the Health and W elfare. I.A. .C.. Vocation and Pension Funds. and article VII. section 7.01 ha\ving to do with the Emplosers' ailure to pay the w ages pro ided for under the then extant Inside Wiremaln Work- ing Agreement. were clearl b legitimate subjects of tile Union's charge. Without. of course. determinin the merits of said charges. I find that the bringing of these charges were based upon considerations not in conflict with the Na- tional Labor Relations Act. In summar. I find that Local Union No. 323. Interna- tional Brotherhood of Electrical Workers. Respondent herein. has violated Section 8(b)(2) and 8(b)(I)(A) of the Act bh notifing Active and Hoff on June 22. and August 16. 1976. that after the termination of the Residential Wir- ing Agreement on June 30. 1976. these employers would have to terminate their residential employees. Said activity. on the part of the L nion. was clearl an attempt to dis- criminate against these emploees in regard to their tenure of emplo\ ment in violation of Section 8(a)(3) ot' the Act and was therefore in violation of Section 8(b)(21. Inasmuch as said acti ity had a tendency to restrain and coerce the em- ploiees of Active and Hoff in the exercise of the rights guaranteed to them in Section 7 of the National Labor Re- lations Act. the Union has engaged in, and is engaging in. unfair labor practices within the meaning of Section 8(b)( I )(A) oft the Act. In all other respects it is recommended that the charges against the Union he dismissed. CON( t SONS Lx 1. Active Enterprises Inc.. and J. F. Hof Electric Co. are employers within the meaning of Section 2(2) of the Act and are engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The lnion is. and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. B attempting to cause the Emploers herein to dis- criminate against their residential emploees in violation of Section 8(a (3) of the Act. as tfound aboe. the l:nion has engaged in unfair labor pr-;ctices within the meaning of' Section 8(b)(2) of the Act. 4. B restrllilning1 ad coercinlg eclplo~ ees in the exercise of rights gual;llinteed Ihe111 bh Section 7 of the Act, as foulnd ahove. the niin hlas en!;led in unfair labor practices withill the meliannilel ot Section (hb)( I (A) of the Act. 5. he oresaid ilitioln ire untair labor practices at- tecting commerce tilhin he meaninint of Section 2(6) and (7)of the Act. I it R su-m) Ia ig tfound that the nion has engaged in unfair labor prictlices in iolation of Section 8(b)(2) and 8(b)( )(A) of the Act. I shall recoimmend that it cease and desist there- troil ai nd take certain afirmative action designed to effectu- ate the policies otf the Act. Ilas ig tund that the Union attempted to cause Active E-nterprises. Inc.. and J. F. Hoff Electric Co. to discrimlina- toril 5 termillate certain of their emnployees in iolation of Section 8(b). (I (A). and (21 of the Act. I shall recommend that the Union ad\ ise both employers that it has no objec- tion to the cointinied emnlployment ot'said emploees and to pst an aIpproprilllte notice. JRecommllelided Order omittec trolm publication.J 317