Interstate Construction Co.

INTERSTATE CONSTRUCTION CO. Interstate Construction Company and Local Union No. 226, International Brotherhood of Electrical Workers. Case 17-CA-6905 April 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On November 9, 1976, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Charging Party filed an answer to the Respondent's exceptions and cross-exceptions and a supporting brief. 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that the Respondent had delegated authority to National Electrical Contractors Association, hereinafter re- ferred to as NECA, to act as collective-bargaining representative; the Respondent did not revoke such authority; the Respondent is bound by the resulting collective-bargaining agreement; the Respondent did not effectuate a valid withdrawal from the multiem- ployer bargaining unit; and the Respondent's failure and refusal to sign and pay certain fringe benefits specified under the new agreement constituted a violation of Section 8(a)(1) and (5) of the Act. While we agree with the Administrative Law Judge's findings that the Respondent failed and refused to pay certain fringe benefits specified under the new agreement in violation of Section 8(a)(1) and (5), since it did not effectuate a valid withdrawal from NECA, we also find merit in the Charging Party's cross-exception contending that the Administrative Law Judge's further finding that the Respondent unlawfully failed and refused to sign the new agreement is inconsistent with the complaint and not supported by the record. Accordingly, the Conclu- sions of Law have been revised and amended to reflect the above findings. I In adopting the Administrative Law Judge's Decision, we note the following inadvertent error which does not affect our agreement with his conclusions herein: the testimony referred to in sec. B should be that of 229 NLRB No. 37 AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 4 and 5, and substitute therefor the following: "4. By failing and refusing, subsequent to July 1, 1975, to pay certain fringe benefits specified under the new collective-bargaining agreement effective September 1, 1975, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. "5. By failing and refusing, subsequent to July 1, 1975, to pay certain fringe benefits specified under the collective-bargaining agreement effective Sep- tember 1, 1975, the Respondent is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act." AMENDED REMEDY The Administrative Law Judge recommended that the Respondent sign the agreed-upon contract and pay the several fringe benefits specified thereunder, if NECA and the Union so request, and if no such request is made the Respondent shall, upon request, bargain with NECA and the Union as a member of NECA and, if an understanding is reached, embody such understanding in a signed agreement. We find merit in the General Counsel and the Charging Party's contentions that the Administrative Law Judge has erroneously concluded that the Union is a member of NECA, the employer bargaining associa- tion and not a party herein; that NECA must, in addition to the Union, request that the Respondent sign the collective-bargaining agreement and initiate the appropriate payments; and that the requirement that the Respondent sign the contract, or any agreement reached, is inconsistent with the Adminis- trative Law Judge's finding that the Respondent is already bound by the contract between the Union and NECA, which it authorized as its bargaining representative. As neither the complaint nor the record supports the Administrative Law Judge's recommended Order in these respects, we shall modify his recommenda- tions accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as Coleman Moms and not Paul LaForge; and the termination date of the collective-bargaining agreement also referred to in sec. B should be June 30. 1975. rather than July 30. 1975. 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified below and hereby orders that the Respon- dent, Interstate Construction Company, Parsons, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as herein modified: i. Substitute the following for paragraph !(a): "(a) Refusing to bargain collectively in good faith with Local Union No. 226, International Brother- hood of Electrical Workers, by refusing to pay the contributions on the fringe benefits specified in the new collective-bargaining agreement which resulted from the collective-bargaining sessions in which the Respondent fully participated." 2. Substitute the following for paragraph 2(a), delete paragraphs 2(a) and 2(c), and reletter the remaining paragraphs accordingly. "(a) Pay the contributions required by the fringe benefit provisions specified in the new collective- bargaining agreement effective September 1, 1975, and comply with the agreement that resulted from the negotiations in which Respondent was an active participant." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local Union No. 226, International Brotherhood of Electrical Workers, by refusing to pay the contributions to fringe benefits specified in the contract which we, as a member of National Electrical Contractors Association, Parsons' Divi- sion (Section), Kansas (Topeka) Chapter, negoti- ated and executed on September 1, 1975. WE WILL NOT in any like or related manner interfere with the efforts of Local Union No. 226, International Brotherhood of Electrical Workers, to bargain collectively on behalf of the employees in the appropriate unit. WE WILL pay the contributions to fringe benefits as required by the contract which we, as a member of National Electrical Contractors Association, Parsons' Division (Section), Kansas (Topeka) Chapter, negotiated and executed with Local No. 226, International Brotherhood of Electrical Workers, on September 1, 1975. WE WILL comply with the contract we, as a member of National Electrical Contractors Asso- ciation, Parsons' Division (Section), Kansas (Topeka) Chapter, had agreed upon with Local Union No. 226, International Brotherhood of Electrical Workers, in August 1975, the aforesaid contract to be effective from September 1, 1975, to the next renewal date as provided therein, and bargain with respect to bargainable issues within the scope of the bargaining authority of the representative parties. WE WILL bargain collectively, as a member of National Electrical Contractors Association, Par- sons' Division (Section), Kansas (Topeka) Chap- ter, with Local Union No. 226, International Brotherhood of Electrical Workers. INTERSTATE CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon an original and an amended charge filed on December 31, 1975, and February 11, 1976, respectively, by Local Union No. 226, International Brotherhood of Electrical Workers, herein called the Charging Party, against Interstate Construction Company, herein called the Respondent, a complaint was issued by the General Counsel of the National Labor Relations Board on February 26, 1976. The complaint alleged that by denying it is bound by the collective-bargaining agreement and by refusing to pay certain fringe benefits pursuant thereto, the Respondent has violated Section 8(aXl) and (5) of the Act. The Respondent filed an answer on March 12, 1976, denying that it has engaged in any unfair labor practices in violation of the Act. The hearing in the above matter was held before me at Parsons, Kansas, on April 29, 1976. Briefs have been received from counsel for the General Counsel, counsel for the Charging Party, and counsel for the Respondent, respectively, which have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FnNDrNos OF FACT 1. JURISDICTION Respondent is now, and has been at all times material herein, a corporation engaged in the business of electrical contracting from its place of business located at Parsons, Kansas. In the course and conduct of its business operations from Parsons, Kansas, the Respondent annually purchases goods and/or services valued in excess of $50,000 directly from sources located outside the State of Kansas. The complaint alleges, the Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that Local Union No. 226, International Brotherhood of 272 INTERSTATE CONSTRUCTION CO. Electrical Workers, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The complaint alleges, the answer admits, and I find that the Parsons Division, Kansas (Topeka) Chapter, National Electrical Contractors Association, Inc., hereinafter re- ferred to as NECA, is an association of multiemployer business enterprises engaged in the business of electrical contracting; and that NECA has existed, and continues to exist, for the purpose, in whole or in part, of representing in collective bargaining with the Union, those employers who have authorized NECA to represent them. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a corporation with a facility in Parsons, Kansas, where it is engaged in the business of electrical contracting. About January 1973 the Respondent, in a letter of assent authorized NECA to represent it for purposes of collective bargaining with the Union concerning its employees in the unit described as follows: All journeymen and apprentice electricians, all journey- men and apprentice wire men, and journeymen technicians, employed by members of the Parsons Division, Kansas (Topeka) Chapter, National Electri- cal Contractors Association, Inc., but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees, constitute the unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Originally, the Respondent was organized to engage in several kinds of construction work. However, it was not until December 13, 1972, that it became engaged in electrical contracting work. It met with Local 718 of the IBEW and later contacted the International Brotherhood of Electrical Workers (IBEW) relative to hiring union employees in April 1973. The Union told Respondent (Mr. Paul E. LaForge) that it would have to sign a letter of assent and join NECA. Respondent thereupon signed a letter of assent (Joint Exh. 1) in which it assented to be bound by and comply with the agreement between the Kansas chapter, NECA, Inc., and Local Union No. 718, which was dated the first day of July 1972 and effective December 8, 1972. Respondent also authorized said chapter of NECA to be its collective-bargaining represen- tative for all matters contained in the agreement, with the understanding that it shall remain in effect until terminated by written notice to the parties 30 days prior to the notification date provided for therein. Respondent there- upon signed the assent letter in the name of Interstate Electrical Construction Co.,' Respondent joined NECA in April 1973, paid the $50 membership fee and proceeded to hire union employees through the Union. There is no dispute in the record that Interstate Electrical Construction Co. and Interstate Construction Co. has been and are now one and the same Respondent herein. NECA is a national employer's organization with 133 chapters and headquarters in Washington, D.C. In 1972 it had a statewide chapter in Kansas that included divisions in Wichita, Topeka, Parsons, and Salima, Kansas. As a result of some dissension amongst the electrical contrac- tors, the chapter was divided into two chapters, one by the Wichita group and one by the Topeka group, which became known as the Kansas-Wichita chapter, and the Kansas-Sunflower chapter, respectively. Early in 1975 there was an amalgamation or merger of Local 718 with Local 226. Pursuant to national policy of NECA to determine chapter jurisdiction based on Local Union (IBEW) jurisdiction, the Parsons' division was assigned to the Topeka chapter. The Kansas-Sunflower chapter (unof- ficially) and the Kansas-Topeka chapter are one and the same chapter. The collective-bargaining agreement was then amended by a successor amendment which recited the merger of Local Union 718 IBEW into Local Union 226, IBEW, effective March 1, 1975; and it declared that the Parsons' section of the Kansas State chapter of NECA recognizes Local Union 226, IBEW, as the successor to the aforementioned agreement. The amended agreement was executed February 28, 1975 (Joint Exh. 4). The heretofore mentioned amended collective-bargaining agreement by which Respondent assented to be bound, was effective from July 1, 1972, until July 30, 1975.2 B. Respondent's Transaction With the Union and NECA Subsequent to the Merger of Union Local 718 Into Local 226 Article 1, section 2, of the collective-bargaining agree- ment by which Respondent assented to be bound provides as follows: Either party desiring to change or terminate this agreement must notify the other in writing at least 60 days prior to June 30 of any year. When notice for changes only is given, the nature of the changes desired must be specified in the notice, and until satisfactory conclusion is reached in the matter of such changes the original provisions shall remain in full force and effect. (Joint Exhibit No. 3) The credible testimony of record established that Mr. Coleman Morris, business manager of Local 226 of the IBEW, had mailed letters to members of the Union and NECA scheduling negotiation sessions for a new contract, since the current contract was to expire June 30, 1975. Subsequently, Mr. Dick Holt, assistant business manager for Local Union 226 of the IBEW received a letter from Respondent (Paul E. LaForge) dated April 30, 1975, in which Respondent advised that it would be unable to be a party to the present agreement from and after June 30, 1975. It further advised that it would be glad to enter into negotiations with the Union concerning a new contract. The Union (Dick Holt) sent a letter to Respondent acknowledging receipt of Respondent's letter of April 30, 1975, and advising that as of May 1, 1975, the Union was 2 The facts set forth above are undisputed and are not in conflict in the record. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD open for negotiations and that all parties concerned had been notified and will be further notified as to the date and place of the first meeting. Shortly thereafter Respondent Paul LaForge, Jr., placed a telephone call to Dick Holt during which he advised that Respondent has sent the letter because it was dissatisfied with some aspects of the current contract, such as travel time, etc. Mr. Holt understood Respondent was trying to give notice of termination of its being a party to the agreement within the 60-day provision. However, he did not indicate that he wanted to terminate Respondent's relationship with Local 226 but, rather said he hoped Respondent and the Union could have successful negotiations and continue to work together. Thereafter, Respondent through Mr. Paul E. LaForge and Mr. Paul LaForge attended and actively participated in some six or so negotiation sessions which commenced in May 1975. Upon the expiration of the agreement on June 30, 1975, Respondent discontinued paying the fringe benefits under the contract. The parties, including Respon- dent, nevertheless continued to negotiate and an agreement was reached which became effective September 1, 1975. According to the credited testimony of Coleman Morris, business manager of Local 226, the Respondent, through its representatives (Paul E. LaForge and Paul LaForge), participated fully in negotiation sessions and at no time did either of them indicate that they were not negotiating on behalf of NECA, but rather, on behalf of Respondent alone. Nor did Respondent ever ask for a separate negotiation session to bargain on its own behalf. Mr. Morris' testimony was essentially corroborated by manager William E. Farrill, of the Kansas (Topeka) chapter of NECA, Dick Holt, assistant business manager of Local 226, and Gerald W. Bowman, an electrical contractor and member of NECA. Although the Respondent did not ever indicate to any of the members in negotiation sessions or otherwise, that it was withdrawing from NECA, or that its presence in the bargaining sessions was on its own behalf instead of NECA's, Respondent now testifies that it first became dissatisfied with the arrangement in NECA in April of 1975, when Local 718 merged with Local 226; that it was concerned about what Local 226 demands would be, how the merger would affect the negotiations and its own ability to enter into a contract, and therefore, it did not want to be bound by the old contract on a holdover basis. Respondent contends that it therefore thought that it was notifying the Union in its letter of April 30, 1975 (Joint Exh. 3), that it desired to terminate the old agreement. Subsequent to July i, 1975, Mr. Coleman Morris noted that several of the contractor members were delinquent in making contributions to their fringe benefit provisions of the new agreement which became effective on September 1, 1975. He thereupon sent the delinquent members, includ- ing the Respondent, a letter calling a meeting scheduled for December 18, 1975. During that meeting Mr. Morris said he learned for the first time from Mr. Paul LaForge, that the reason Respondent terminated the contribution pay- ments to fringe benefits was because it did not believe it was bound by the new collective-bargaining agreement. Respondent said it was not signatory to the agreement and therefore did not want to convey the impression, by making such contributions, that Respondent was bound by the agreement. Respondent said it advised the Union that if the Union would accept the contributions without considering it bound by the agreement, Respondent would then readily submit the contributions. It further advised that Respon- dent changed and paid the new wage scale rate called for by the new contract after September 1, 1975, but it did not pay the travel time or other fringe benefits. It said it changed the wage scale because it wanted to keep its employees who might have left its employ to work with other NECA employers. It did not change the wage scale to comply with the new contract because it did not want to be bound by the old contract on holdover. Mr. LaForge continued to testify as follows: A. But that he didn't want to be a party to the agreement for the reasons of if a picket went up our members would recognize the picket and therefore he couldn't man the job. If he did sign it, possibly he might have to form a new corporation to manage those types of jobs with open shop or non-union member in order to complete his job. I assured him of his desire to not be a party to the agreement but if he would pay the funds that we would sign a mutual letter to terminate the agreement upon receipt of those funds. In a conversation he indicated that he would think about it over the weekend and determine whether he was going to pay the funds or not. He said he probably would but he would let me know the first of the week. I never received any notification from him whether he accepted, no re- sponse. Subsequently, Dick Holt called Mr. Morris and advised him that Respondent had informed him that Paul LaForge Jr., had told him that Respondent did not consider itself bound by the new agreement. Mr. Paul E. LaForge, president of Respondent, testi- fied that the purpose of his letter of April 30, 1975 (Joint Exh. 5) was sent at that time because the agreement provided that a party desiring to terminate further negotiations was obligated to advise the Union of such fact 60 days prior to expiration of the agreement, unless it shall be presumed bound to negotiate as it had in the past. He also thought that this letter would cancel any further contractual obligations with the Union. Respondent intended to negotiate with the Union on behalf of Respondent because it felt it could benefit from the Union on a one-to-one contract, and it wanted to advise the Union that NECA was no longer Respondent's bargaining representative. Mr. LaForge further testified that he interpreted Mr. Holt's letter advising that the Union was opened to negotiations, as an invitation to let him know that he was welcome to negotiate in NECA on behalf of Respondent alone. Mr. Paul E. LaForge said he talked with Mr. Holt on a subsequent occasion during which time he explained that he wrote the letter because he understood if Respondent did not agree with the new negotiations, Respondent could withdraw from the binding effect of any agreement reached. However, he acknowledged in this proceeding 274 INTERSTATE CONSTRUCTION CO. that he attended the NECA sessions and admitted that he did not state therein that Respondent was not negotiating on behalf of NECA, but rather, on behalf of Respondent alone. On the contrary, Mr. Paul E. LaForge said he did state on several occasions that if the agreement reached by NECA did not accord with Respondent's views, Respon- dent would not sign it; that just because NECA came to an agreement did not mean that Respondent was going to sign it; and that such statements should have been understood by the NECA group that Respondent was negotiating on its own behalf. Mr. LaForge further testified that he did not receive a letter indicating the substance of the agreement and he had difficulty learning what it was. About 2 months later, he received a copy of the agreement with which he did not agree. He also received a new letter of assent (Joint Exh. 9) from the Union which he elected not to sign. Thereafter he discussed the possibility and the feasibility of separate negotiations for Respondent with the Union (Dick Holt and Coleman Morris). According to his testimony, their conversations were as follows: A. I discussed it with both Dick Holt and Coleman Morris. Q. Approximately what time? A. Towards the end of negotiations. Whether it be exactly after all the meetings or at the beginning, or what- Q. (Interrupting) What were you told by them in regard to separate negotiations? A. I was told that their union couldn't do it, that there was no way that they could enter into negotia- tions with anybody but NECA. And, at that point, I said, "Fine, I guess we just can't get together then because we are not going to sign our corporation over to NECA." Q. Can you tell me approximately-you say this was after August? A. This would have been, it would have to have been after all of the meetings. At that time when things were going to council and probably afterwards also. In fact I know it would have been afterwards. Q. Would this have been prior to December 18? A. Prior to December 18, 1 would say both before and after, yes. It was brought up several times. Q. So, prior to December 18, this Mr. Morris and Mr. Holt both knew that you were operating for Interstate Construction Company, Incorporated and not for NECA, negotiating I should say? A. They had been told, let's put it that way. I can't say whether they knew. Q. You told them? A. They had been told. Q. Then did there come a time when you were asked to come to a meeting on December 18, 1975, with the labor management committee? A. Yes. Q. What took place at that meeting? A. At that meeting, we were more or less, or we were being told that we were in violation of the contract agreement and that we had not been paying benefits. And so, it was just-the Labor Relations Board went into discussions on the matter. Q. Were you there while they discussed it? A. Yes. Q. What did you tell them your position was in this regard? A. My position was that they could assess that I had not been paying these dues- Mr. Paul E. LaForge testified that he did not authorize payment of other fringe benefits because (I) they were inflationary and (2) he felt paying such benefits might be construed as Respondent's consent to the agreement, thereby binding Respondent to the current agreement. He acknowledged that he was aware that parties to the prior agreement had to give notice of any changes 60 days prior to the expiration to the said agreement. On cross-examina- tion he admitted his letter of April 30, 1975 (Joint Exh. 5) did not notify the Union that NECA was not its bargaining agent. He continued to testify as follows: Q. Why didn't you ever tell any representatives of NECA that you no longer wanted them to represent you as your bargaining agent? A. Why didn't we tell them that? Q. Yes. A. I had thought that we had. Q. Who did you tell it to? A. Well, in the meeting with-number one, we were not aware that NECA was our bargaining agent to begin with. We just didn't know that they were in this to begin with. I mean he came in and tried to do it in this one meeting where he told me let him do the talking. I told him, "Back off, I will talk for our own corporation Analysis and Conclusion In evaluating Respondent's (Mr. Paul E. LaForge, Jr., president, and Mr. Paul F. LaForge, Sr.) testimony with respect to having given the Union and/or NECA oral notice of withdrawal from collective bargaining on behalf of NECA, I find the record wanting for proof of such fact. Not only does Respondent (Mr. Paul E. LaForge or Mr. Paul LaForge) admit that they did not give the parties a clear or unequivocal statement of withdrawal, but it (neither) could not advise the court, with reasonable approximation, when such conversations occurred. It's testimony in this regard was uncertain, ambiguous, and inconsistent, as partially reflected on the record, both as to substance of what was said and as to time. Under these circumstances, I conclude and find that Respondent did not give the Union or NECA such oral notice. To the extent to which Respondent suggests it gave oral notice, it was equivocal, and even so, thereafter revoked by Respon- dent's subsequent conduct in actively participating in the collective-bargaining sessions. The crucial questions raised by the pleadings, the evidence, and arguments in the instant proceeding are as follows: 275 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Did the Respondent ever properly and effectively revoke or terminate its authorization of NECA as its collective-bargaining representative? 2. Did Respondent ever properly and effectively notify the parties (NECA and the Union, Local 226, IBEW) to the collective-bargaining agreement of its withdrawal from collective bargaining? 3. Did Respondent, by participating in the negotiation sessions with full knowledge of NECA's function, as contrasted with an employer's own bargaining goals and without ever notifying NECA or any of the parties in the negotiation sessions of its withdrawal from bargaining, become bound by the collective-bargaining agreement negotiated by NECA and effectuated on September 1, 1975? With respect to question No. 1, it is readily observed that the Letter of Assent (Joint Exh. 1) which Respondent signed in late 1972 or early 1973 provided, in pertinent part, as follows: This is to certify that the undersigned firm has examined a copy of the labor agreement between the Parson's Section Kansas Chapter, NECA, Inc., and Local Union No. 718, IBEW, dated the first day of July, 1972: and effective the 8th day of December, 1972 In signing this Letter of Assent the undersigned firm does hereby authorize the Parson's Section Kansas Chapter, NECA, as its collective-bargaining represen- tative for all matters contained in this agreement or pertaining to this agreement. This authorization to the Parson's Section Kansas Chapter, NECA, shall remain in effect until terminated by written notice to the parties of the aforementioned agreement thirty (30) days prior to the notification dateprovidedfor therein. Further, a successor amendment to the aforedescribed agreement provided as follows: This agreement between the Parson's Section of Kansas State Chapter of the National Electrical Contractors Association, and Local Union 718, of the International Brotherhood of Electrical Workers dated July 1, 1974. Is hereby amended as follows: Effective March 1, 1975, Local Union 718 IBEW was merged into Local Union 226 IBEW. The Parson's Section of the Kansas Chapter of NECA recognizes Local Union 226, IBEW as the successor to the aforementioned agreement. Executed this 28th day of February 1975 (Joint Exhibit No. 4). Joint Exhibits I and 2 are items of evidence of Respondent's cashed check to NECA further established to have been paid for membership dues. The above-described documentary evidence establishes beyond question that Respondent properly authorized and designated NECA as its collective-bargaining representa- tive, and thereafter paid its membership dues to NECA in the amount of $50 on April 17, 1973. The record is barren of any evidence showing that Respondent ever orally or in writing revoked NECA's authorization to bargain on the joint behalf of Respondent and other member electrical contractors (NECA). The record does show, however, that in a letter addressed to Local Union No. 718 dated April 30, 1975, the Respondent advised as follows: This letter is to inform you that we will be unable to be a party to the present agreement from and after June 30, 1975. We will be glad to enter into negotiations with you concerning a new contract. It is this letter that Respondent contends was designed and transmitted to notify NECA and the Union that it intended to withdraw from collective bargaining and terminate its obligations under any future agreement reached by NECA. In reading this letter, with the most reasonable interpretive latitude, I cannot arrive at the construction placed upon its language urged by the Respondent. At most, it is clear that the language of the above-described letter advises the Union that it does not intend to be bound by the provisions of the current contract on holdover after its expiration on June 30, 1975. I interpret this statement as a mere recitation of what the contract already provides, except that it makes clear Respondent's intention not to be bound on holdover. Additionally, Respondent expressed its willingness to enter into negotiations with the Union concerning a new contract. This latter statement, following Respondent's prior statement in the letter, reasonably conveys the impression that Respondent was dissatisfied with the prior contract and indicated its hopes of achieving an agreement more satisfactory to itself once negotiations were undertak- en. The Union's reply letter (Joint Exh. 6) to Respondent's letter of April 30, 1975, is consistent with the above interpretation. That is, the Union simply acknowledged the receipt of Respondent's letter and advised it that the Union was open for negotiations and that all parties had been so notified, and would be further advised of the date and place of the first meeting. Although counsel for the Respondent contends that Respondent's letter connoted its intention to withdraw from collective bargaining on behalf of NECA, such connotation, if it exists at all, is so vague and ambiguous that at most, could raise an inference of such contention. However, assuming that such an inference can be drawn from the language of Respondent's letter, such would be undoubtedly insufficient to satisfy the law that a notice of withdrawal from collective bargaining must be unequivocal and exercised within the appropriate time provided for by agreement. With respect to question No. 2, the credited and undisputed testimony of record shows that at no time prior to June 30, 1975 (date current contract expired), on September 1, 1975 (the date the parties reached a new agreement), did the Respondent ever notify the other employer members of NECA of its withdrawal from collective bargaining, as provided in the last paragraph of its Letter of Assent (Joint Exh. 1). In view of this omission by Respondent, it is clear from the evidence that although the first and current contract expired on June 30, 1975, NECA's capacity as the collective-bargaining representa- tive for the Respondent was not terminated but continued. 276 INTERSTATE CONSTRUCTION CO. Subsequent to its letter of April 30, 1975, Respondent did not properly and effectively notify the parties of the first collective-bargaining agreement of withdrawalfrom collective- bargaining. With respect to question No. 3, the evidence of record is essentially free of conflict that the Respondent, in the persons of Mr. Paul F. LaForge, Sr., and/or Mr. Paul E. LaForge, Jr., president, fully participated in all of the NECA negotiation sessions without ever stating or reason- ably intimating: that it was not negotiating on behalf of NECA; that it was negotiating only on its own behalf; that it had revoked its authorization for NECA to bargain collectively for it; or that it had withdrawn from collective bargaining as a member of NECA. In the absence of evidence of such notice to the parties (NECA members and the Union) I cannot conclude and find that Respondent clearly and unequivocally communicated a notice of its withdrawal from the collective-bargaining process. On the contrary, I conclude and find that since Respondent attended and fully participated in every collective-bargain- ing session held by the parties between May and Septem- ber 1, 1975, the parties were justified in assuming and relying upon Respondent's continued participatory mem- bership in the bargaining sessions. Nor does the evidence of record show that any of the employee-members of NECA had any actual or implied knowledge of Respon- dent's intent or effort to withdraw from the bargaining process. If it can be construed at all that the Union had inferential knowledge of Respondent's intent and effort to withdraw from collective bargaining, such inferential knowledge does not constitute unequivocal and timely notice of withdrawal. Hence, the Board's decision in Retail Associates, Inc., 120 NLRB 338 (1958), appropriately cited by counsel for the General Counsel, is controlling on the facts of the Respondent's letter of April 30, 1975, and any prior and subsequent conversations it contends it held with the parties. Even if such conversations occurred they did not relieve Respondent of its contractual obligation to give written and timely notice. Counsel for the Respondent's argument of notice upon the theory of agency is ineffective since Respondent's letter of April 30, 1975, was not unequivocal, and therefore not timely. If Respondent's letter was unequivocal in fact, I would have no difficulty finding it was transmitted to the Union in compliance with the collective-bargaining agree- ment 60-days provision. However, it does not appear to be timely in accordance with Respondent's letter of assent and the collective-bargaining agreement. Not having given timely and unequivocal notice of with- drawal, Respondent's full participation in the bargaining sessions of NECA bound it to the agreement reached by the members thereof As counsel for the General Counsel points out, once a mutliemployer bargaining unit has been established as in the case herein, the employer-members are subject to the rule enunciated by the Board in Retail Associates, supra. That is, the withdrawal must occur before the commence- ment of negotiations or, if attempted after negotiations have begun, be based upon (1) unusual circumstances or (2) the acquiescence of the Union. Hi-Way Billboards, Inc., 206 NLRB 22 (1973). In the instant case Respondent- Employer fully participated in the negotiations and did not make a subsequent attempt to withdraw from collective bargaining. It did not submit any unusual circumstances to justify withdrawal, and the Union nor the other members of NECA did not at any time acquiesce in any withdrawal effort by the Respondent. Moreover, as further pointed out by counsel for the General Counsel, a member's decision and effort to withdraw from multiemployer collective bargaining must contemplate its sincere abandonment, with relative per- manency of the multiemployer unit and the embracement of the different course of bargaining on an individual basis. Here the Respondent did not at any time abandon its active participation in the collective-bargaining sessions, but through its own testimony, stated that it participated with some anticipation that the bargaining parties would reach an agreement also acceptable to the Respondent. In fact the Respondent testified that it could not agree with the agreement reached because it was inflationary but that it would have accepted and signed the agreement had it been more financially satisfactory. Beyond that explana- tion, the Respondent introduced no evidence which indicated it was confronted with a financial crisis which threatened its existence as a viable business entity. Although the Respondent contended it requested the Union to bargain with it individually, if in fact it could, this contention was not significant to the issues in this case since the Respondent did not effectuate a valid withdrawal from the multiemployer bargaining unit. On the contrary, since the Respondent had delegated authority to NECA as its collective-bargaining representative, which authority it did not revoke, it is bound by the resulting collective- bargaining agreement. Consequently, Respondent's failure and refusal to sign and pay certain fringe benefits specified under the new agreement constituted an interference with, restraint upon, and coercion against unit employees in the exercise of Section 7 rights, in violation of Section 8(aX I), of the Act. Such failure or refusal on the part of Respondent also constitutes a refusal to bargain in violation of Section 8(aX)(5) of the Act. See H. J. Heinz Company v. N.LR.B., 311 U.S. 514 (1941). IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting remedial Order, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that Respondent has unlawfully failed and refused to sign and pay certain fringe benefits specified under the new collective-bargaining agreement negotiated by its duly designated multiemployer bargain- ing representative, because Respondent deems said agree- ment inflationary, the recommended order will provide that Respondent sign the agreed upon contract and pay the several fringe benfits specified thereunder, if NECA and the Union so request, and if no such request is made, the Respondent shall, upon request, bargain collectively with NECA and the Union as a member of NECA, its exclusive bargaining representative, and the Union, the representa- tive of Respondent employees and members of Local 226, and, if an understanding is reached, embody such under- standing in a signed agreement. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Interstate Construction Co., the Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 226, International Brotherhood of Electrical Workers, the Union herein, is a labor organiza- tion within the meaning of the Act. 3. The Parson's Division, (Section), Kansas (Topeka) Chapter, National Electrical Contractors Association, Inc., herein referred to as NECA, is an association of multiem- ployer business interprises engaged in the business of electrical contracting, and exists for the purpose of representing in collective bargaining with the Union, those employers who have authorized NECA to represent them. 4. By failing and refusing, subsequent to July 1, 1975, to pay certain fringe benefits specified under the new collective-bargaining agreement effective September I, 1975, and by failing and refusing to sign said agreement, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(aX)1) of the Act. 5. By failing and refusing, subsequent to July 1, 1975, to pay certain fringe benefits specified under the collective- bargaining agreement affective September 1, 1975, and by refusing to sign said agreement, Respondent has refused, and is refusing, to bargain collectively, and has withdrawn from the negotiations with Local 226, International Brotherhood of Electrical Workers, and NECA, and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices effecting commerce within the meaning of Section 2(6) and (7) of the Act. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Upon the foregoing findings of facts, conclusions of Law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 The Respondent, Interstate Construction Co., Parsons, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Local Union No. 226, International Brotherhood of Electrical Workers and National Association of Electrical Contractors (NECA), by refusing upon request, to pay the contributions on the fringe benefits specified in the new collective-bargaining agreement, and to sign said agree- ment which resulted from the collective-bargaining sessions in which the Respondent fully participated. (b) Interfering with, restraining, and coercing its employ- ees in the exercise of rights guaranteed in Section 7 of the Act. (c) In any like or related manner interfering with the efforts of Local No. 226, International Brotherhood of Electrical Workers, to bargain collectively on behalf of employees in the appropriate unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, pay the contributions to the fringe benefits specified in the new collective-bargaining agree- ment effective September 1, 1975, the negotiations for which Respondent was an active participant. (b) Upon request, sign the collective-bargaining agree- ment effective September 1, 1975, the negotiations for which the Respondent was an active participant. (c) If no request is made as provided in paragraphs 2(a) and (b) hereof, upon request, bargain collectively with Local 226, International Brotherhood of Electrical Work- ers, as a member of National Electrical Contractors Association (NECA), Parson's Division (Section), Kansas (Topeka) Chapter, to negotiate a collective-bargaining agreement, and embody any understanding which may be reached in a signed agreement. (d) Post at Respondent's plant at Parsons, Kansas, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event the Board's Order is enforced by a Judgment of the 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." 278