Expert Electric, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 347 NLRB No. 2 18 Expert Electric, Inc. and Local Union No. 3, Interna- tional Brotherhood of Electrical Workers, AFL– CIO. United Electrical Contractors Association a/k/a United Construction Contractors Association and its Individual-Employer Members (See Ap- pendix A) and Local Union No. 3, International Brotherhood of Electrical Workers, AFL–CIO. Cases 29–CA–21967 and 29–CA–22399 May 15, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On September 6, 2001, Administrative Law Judge Ste- ven Davis issued the attached decision. Respondents United Electrical Contractors Association (UECA) to- gether with various employers and Respondent Expert Electric, Inc. (Expert) each filed exceptions and support- ing briefs, and the General Counsel filed an answering brief. The General Counsel filed exceptions and a sup- porting brief, and UECA together with various employ- ers filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified herein and to adopt the recommended Order as modified and set forth in full below.2 1 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge’s finding that UECA violated Sec. 8(a)(5) by refusing to bargain with and withdrawing recognition from the Union, we find it unnecessary to rely on the judge’s suggestion, in sec. II,B,3,a of his decision, that “bad faith bargaining may, in certain circum- stances, excuse an employer’s refusal to bargain” because, for the rea- sons stated by the judge, we agree with his finding that the Union did not bargain in bad faith. 2 We have modified the judge’s recommended Order (1) to provide that UECA shall post required notices at its most recent location in Holbrook, New York; (2) to provide, consistent with Cascade Employ- ers Assn., Inc., 126 NLRB 1014, 1020 (1960), that UECA shall utilize all its powers to ensure the cooperation of its employer-members in effectuating the Order; (3) to delete provisions in the recommended Order requiring UECA to reinstate Expert as a UECA member and requiring Expert to request such reinstatement; and (4) to require that UECA, in bargaining with the Union on a multiemployer basis, shall do so as the representative of its employer-members and of any former employer-members that have caused their own expulsion from UECA. With regard to the latter two modifications, we observe that Expert, 1. We affirm the judge’s finding that Section 10(b) time-bars the complaint in Case 29–CA–22399 against the individual employer-members of UECA named in Appendix A. In so doing, however, we find it unneces- sary to rely on Sewanee Coal Operators Assn., 167 NLRB 172 (1967), which the judge cited for the proposi- tion that participation in a multiemployer bargaining unit does not render one participant the agent of another for the purpose of accepting service of process. Preliminar- ily, we observe that Sewanee Coal does not address the issue of whether a multiemployer association, as opposed to a participating employer-member of that association, might be an agent of its employer-members for the pur- pose of accepting service. We need not address that is- sue here, however, because the charge served on UECA in Case 29–CA–22399 named only UECA as the charged party. Because the charge did not name the employer- members of UECA as charged parties, there were no parties on whose behalf UECA could be found to have accepted service of the charge. Our decision in the re- lated case United Electrical Contractors Assn., 347 NLRB 1 (2006) (UECA), which we also issue today, is distinguishable. Although in UECA, as here, a complaint naming various employer-members of UECA was issued based on a charge served on UECA alone, the charge served in UECA named UECA’s employer-members. For the reasons explained in that decision, we found ser- vice of the charge on UECA to constitute service on its employer-members.3 But the factual predicate of that finding was that the charge named UECA’s employer- having caused its own expulsion from UECA, remains obligated, not- withstanding its loss of membership in UECA, to bargain with the Union on a multiemployer basis and is required by the Order herein to bargain on that basis. See Roberts Electric Co., 227 NLRB 1312, 1317 (1977). Accordingly, any other former employer-member of UECA that also caused its own expulsion therefrom would also remain obli- gated to bargain with the Union on a multiemployer basis regardless of its current nonmembership in UECA. Thus, it is unnecessary to modify the recommended Order, as requested by the General Counsel, to re- quire UECA to reinstate 25 other employers. Finally, we have modi- fied the judge’s recommended Order to conform to our decision in Excel Container, Inc., 325 NLRB 17 (1997). With regard to the notices, the General Counsel has requested that each notice include an appendix to its unit description, listing all of the employers of unit employees. We find merit in the General Counsel’s request. Thus, we have substituted new notices to comport with this request, with the foregoing modifications of the recommended Order, and with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). 3 Member Schaumber agrees with his colleagues that service was not effected on the employer-members of the multiemployer bargaining association, UECA, in this case. However, as stated in UECA, supra at fn. 8 Member Schaumber found it unnecessary to pass on whether service on a multiemployer bargaining association constitutes service on its employer-members, as service was otherwise effected on the respondent employer-members in that case. EXPERT ELECTRIC, INC. 19 members as charged parties. That predicate is absent here. Consequently, we cannot find in this case, as we did in UECA, that the employer-members were effec- tively served with the charge, as required by Section 10(b), by virtue of service on their bargaining agent. 2. UECA argued before the judge, and argues to us, that if the complaint in Case 29–CA–22399 is dismissed as against its employer-members, it must be dismissed in its entirety—i.e., as against UECA as well—for failure to join “necessary parties.” UECA cites no authority to support its view that its employer-members are necessary parties in this proceeding, nor does it indicate by what criteria a party is deemed “necessary.” The judge re- jected this argument, and so do we. The Supreme Court has stated that in Board unfair la- bor practice proceedings, which are “narrowly restricted to the protection and enforcement of public rights, there is little scope or need for the traditional rules governing the joinder of parties in litigation determining private rights.” National Licorice Co. v. NLRB, 309 U.S. 350, 363 (1940). Even assuming, however, that the Board were to apply the “traditional” rule governing necessary and indispensable parties—Rule 19 of the Federal Rules of Civil Procedure—that rule would not support a finding that the employer-members here are necessary and indis- pensable to this case. Under Rule 19(a), a party is necessary if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or other- wise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a). If a party is found necessary under Rule 19(a) but cannot be joined, it then must be determined under Rule 19(b) whether the necessary party is also indispensa- ble. If the party that cannot be joined is both necessary and indispensable, the case must be dismissed. Our inquiry here is limited to whether Rule 19(a)(1) applies to the individual employer-members. UECA does not contend that the employer-members claim an interest requiring their joinder so as to protect either their interest (Rule 19(a)(2)(i)) or the interests of UECA or another party (Rule 19(a)(2)(ii)). We find that the em- ployer-members are not necessary parties under Rule 19(a)(1) because the Board can accord full relief to the parties without the joinder of each employer-member. Our Order requires UECA to bargain with the Union. That remedy is unaffected by the employer-members’ presence or absence as parties in this case. Even if the employer-members were named parties, had been found to have violated Section 8(a)(5), and were subject to the bargaining order, UECA would, as their agent, carry out the bargaining with the Union on the employer- members’ behalf. UECA predicts that its employer- members will refuse to cooperate with it with respect to the collective-bargaining process. We reject this argu- ment as speculative and as irrelevant to UECA’s duty to bargain with the Union. Moreover, the Association’s fulfillment of its duty to bargain will bind the employer- members. In this regard, the Board has not made find- ings, either in this case or in its companion, United Elec- trical Contractors Assn., supra, that the facts here present the kind of “unusual circumstances” that would release the employer-members from their obligation to honor a collective-bargaining agreement that UECA negotiates with the Union. See Resort Nursing Home v. NLRB, 389 F.3d 1262, 1267 (D.C. Cir. 2004) (noting that “‘unusual circumstances’ that would justify withdrawal [from a multi-employer bargaining association] after the com- mencement of bargaining normally would be found only when an employer is subject to extreme financial pres- sures or when a bargaining unit is substantially frag- mented,” and that the Board has interpreted such circum- stances narrowly), citing Charles D. Bonnanno Linen Service v. NLRB, 454 U.S. 404, 411 fn. 6 (1982). Thus, any internal disharmonies that UECA may face do not affect our ability to accord relief for the 8(a)(5) violations alleged and found by ordering UECA to recognize and resume bargaining with the Union on the employer- members’ behalf. Based on the foregoing, we find that UECA’s em- ployer-members are not necessary parties. Because a finding of necessity is prerequisite to indispensability under Rule 19, it follows that the employer-members cannot be indispensable. Thus, we affirm the judge’s finding that dismissal of the complaint against UECA in Case 29–CA–22399 is not warranted by the employer- members’ absence. 3. The General Counsel has requested, inter alia, that we order mailing of the notice to all of the unit employ- ees. The General Counsel maintains that posting of the notice at UECA’s office is not a sufficient remedy given that UECA does not employ any of the unit employees and few, if any, of the employees have occasion to visit UECA’s office. UECA opposes the General Counsel’s notice-mailing request, arguing that such a remedy would impose an unreasonable burden on UECA. We agree with UECA. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 Board remedies must be “adapted to the situation which calls for redress.” NLRB v. McKay Radio & Tele- phone Co., 304 U.S. 333, 348 (1938). Thus, Board remedies should take into account practical considera- tions relating to the parties involved. Here, a notice- mailing requirement would require UECA to gather the names and addresses of all former unit employees em- ployed by its numerous employer-members at any time since the date of the first unfair labor practice in this case, which is more than 7 years ago. Under the unusual circumstances of this case, we find a notice-mailing re- quirement to be unduly burdensome. Therefore, we shall provide for the traditional notice-posting remedy. We also note that nothing precludes the Union from posting copies of the attached notices at the union hall.4 ORDER A. The National Labor Relations Board orders that the Respondent, United Electrical Contractors Association a/k/a United Construction Contractors Association (UECA), Holbrook, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Local 3, In- ternational Brotherhood of Electrical Workers, AFL–CIO (the Union), by withdrawing recognition from the Union and refusing thereafter to bargain with it as the represen- tative of its individual employer-members and of any former employer-members that have caused their own expulsion from UECA. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and resume bargaining with the Union, on behalf of the individual employer- members of UECA and of any former employer- members that have caused their own expulsion from UECA, as the exclusive representative of the employees in the following appropriate collective-bargaining unit, concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: 4 Member Walsh would modify the judge’s recommended Order as requested by the General Counsel. In his view, the General Counsel’s notice-mailing request is based on the realistic assessment that the unit employees are not likely to see posted notices given that they work in the construction industry. The practical difficulties the majority cites can be worked out between UECA and the Region or addressed, if need be, at a compliance proceeding. That the Union may, if it wishes, post copies of the notices at its hiring hall is not an equitable alternative. UECA is the wrongdoer here, not the Union. All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the elec- trical field employed by employer-members of Re- spondent [United Electrical Contractors Association a/k/a United Construction Contractors Association], but excluding all office clerical employees, guards and su- pervisors as defined in the Act. (b) Utilize all powers UECA possesses by virtue of its relationship to its employer-members to ensure their co- operation in the effectuation of the objective of the Or- der. (c) Within 14 days after service by the Region, post at its Holbrook, New York facility, copies of the attached notice marked “Appendix B.”5 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 11, 1998. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. B. The National Labor Relations Board orders that the Respondent, Expert Electric, Inc., Astoria, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Improperly withdrawing from the multiemployer bargaining unit and withdrawing recognition from Local 3, International Brotherhood of Electrical Workers, AFL–CIO (the Union). (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” EXPERT ELECTRIC, INC. 21 (a) Recognize the Union as the exclusive representa- tive of its employees in the following appropriate mul- tiemployer bargaining unit, and bargain with the Union through UECA as its representative: All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the elec- trical field employed by employer-members of Re- spondent [United Electrical Contractors Association a/k/a United Construction Contractors Association], but excluding all office clerical employees, guards and su- pervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its Astoria, New York facility, copies of the attached notice marked “Appendix D.”6 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 21, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX A Action Electrical Contracting Corp. Alco Electric Co. Atlas Electrical Contractors, Inc. Bisantz Electric Co., Inc. Blake Electrical Contracting, Inc. Bran Electric Corp. C. B. Electrical C & L Electric, Inc. Chapman Electrical Contracting Co. Con Tech Electric Service Co., Inc. Cotroneo & Marino’s United Electric Co., Inc. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” County Wide Electric DeCeck & Leonard, Inc. DiFrancia Electric, Inc. Eaton Electric, Inc. Eugene Iovine, Inc. Expert Electric, Inc. Falcone Electric Corp. Farica Electric Contracting Corp. Feola Electric, Inc. Ferrara Electrical Controls G & R Electrical Contracting, Inc. Gilston Electrical Contracting Corp. Global Electrical Contracting Granna Electric Heller Electric Co., Inc. Interphase Electrical Corp. J. K. Electric Corp. Kew Electric Co. Lesil Reliable Electric Co., Inc. Lipco Electric Co. Lisa Electric, Inc. a/k/a YNR Electric, Inc. Lobello Electrical Installation M.P.E. Electrical Contracting Corp. d/b/a Star Electric Corp. M & W Electric Corp. Maximum Electrical Contracting Corp. Milad Contracting Corp. Mondl Electric Co., Inc. Norlin Electrical Contracting Co. Northern Electrical Contracting Ozone Electric Corp. Pantel Contracting Corp. Paul Mock, Inc. Point Electrical Ltd. Positive Electric Association, Inc. Raymour Electrical Company Schneider Electric Company, Inc. Square Electric Co., Inc. Star Brite Electric Corp. T. Reilly Electrical Corp. f/k/a Modica & Reilly Elec- tric Corp. T & A Electrical Contracting T & J Electrical Contracting Tap Electrical Contractors Service, Inc. Tri-Town Electric Corp. V & R Electrical Contractors, Inc. Vintage Electric Corp. W.T. Hickey Corp. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with Local 3, International Brotherhood of Electrical Workers, AFL–CIO (the “Union”), by withdrawing recognition from the Union and refusing thereafter to bargain with it as the representative of the unit employees employed by the individual employer-members of the United Electri- cal Contractors Association a/k/a United Construction Contractors Association (“UECA”) and any former em- ployer-members that have caused their own expulsion from UECA. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, on request, recognize and resume bargaining with the Union, on behalf of the individual employer- members of UECA and of any former employer- members that have caused their own expulsion from UECA, as the exclusive representative of the employees in the following appropriate collective-bargaining unit, concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the elec- trical field employed by employer-members∗of Re- spondent [United Electrical Contractors Association a/k/a United Construction Contractors Association], but excluding all office clerical employees, guards and su- pervisors as defined in the Act. ∗This notice shall be posted along with the attached document (marked here as Appendix C) listing the 91 employers that constituted the certified multiemployer unit. WE WILL use all our powers to ensure that our em- ployer-members cooperate in our efforts to meet the commitments we have made above. UNITED ELECTRICAL CONTRACTORS ASSOCIATION A/K/A UNITED CONSTRUCTION CONTRACTORS ASSOCIATION APPENDIX C Abiele Contracting, Inc. Able Electrical Contracting Action Electrical Contracting Alco Electric Co. All Phase Electric Accurate Electric Alpha Maintenance & Electrical Corp. Aly-Cine Electric Corp. Atlas Electric Contractors, Inc. Wm. Beeferman, Inc. Bernard Pasquale, Inc. P. Barry Contractors, Inc. Bisantz Electric Co., Inc. Blake Electric Contracting Co., Inc. Boys Electric Bran Electric Ralph Borelli Electric C. B. Electric C & L Electric, Inc. Chapman Contracting Co. Colony Electric Company Con Tech Electric Service Co., Inc. Cotroneo & Marino’s United Electric Co., Inc. County Wide Electric Cunardi Electrical Contracting Contracting, Inc. Dececk & Leonard, Inc. DiFrancia Electric, Inc. Eaton Electric, Inc. Eugene Iovine, Inc. Expert Electric, Inc. Falcone Electric Corporation Feola Electric, Inc. Ferguson Electric, Inc. Ferrara Electric, Inc. G & R Electrical Contracting, Inc. Gateway Electrical Contracting Corp. George F. Kolsch, Inc. Gilston Electric Contracting Corp. Global Electrical Contractors, Inc. Granna Electric, Inc. Heller Electric Contractors Hunts Point Electric Corp. Interphase Electrical Contractors Corp. J. K. Electric EXPERT ELECTRIC, INC. 23 Jade Electric Kew Electric Co. L & H Power, Inc. La Rene Electrical Co., Inc. Lesil Reliable Electric Co., Inc. Lipco Electric Co. Lisa Electrical Inc. Lobello Electric M.P.E. Electrical Contracting Corp. d/b/a Star Electric Maximum Electrical Contracting Corp. Milad Contracting Corp. Mondl Electric Co., Inc. Neon Images Norlin Electric M. Ostroff Electric, Inc. Taglifaferro & Sons Electrical Co. d/b/a Northern Electric North American Neon d/b/a North American Mainte- nance Ozone Electric P.T.R. Electric Corp. Pantel Contracting Corp. Paul Mock, Inc. Petri Electric Corp. Point Electric Ltd. Positive Electrical Associates, Inc. Preferred Contracting, Inc. Raymour Electric Company Robert E. Burden Electrical Contractors Schneider Electric Company Seymour Electric Service, Inc. Solar Electrical Company Square Electric Co., Inc. Standard Maintenance, Inc. Star Brite Electric Corp. Suriano Electric T. Reilly Electrical Corp. f/k/a Modica & Reilly Elec- tric Corp. T & A Electrical Contractors T & J Electrical Contractors Tap Electrical Contractors Service Tocs Electrical Contracting Corp. Tri-Town Electric Corp. Triac Electric Corp. V & R Electrical Contractors, Inc. Valquest Contracting Co., Inc. Vintage Electric Corp. W.P.C. Electric W. T. Hickey Corp. Willmont Electric Corp. APPENDIX D NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT improperly withdraw from the multiem- ployer bargaining unit represented for purposes of collec- tive bargaining with Local 3, International Brotherhood of Electrical Workers, AFL–CIO (the “Union”) by United Electrical Contractors Association a/k/a United Construction Contractors Association (“UECA”), and we will not withdraw recognition from the Union, which represents our employees in the multiemployer bargain- ing unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL recognize the Union as the exclusive repre- sentative of our employees in the following appropriate multiemployer bargaining unit and bargain with the Un- ion through UECA as our representative: All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the elec- trical field employed by employer-members∗of Re- spondent [United Electrical Contractors Association a/k/a United Construction Contractors Association], but excluding all office clerical employees, guards and su- pervisors as defined in the Act. EXPERT ELECTRIC, INC. APPENDIX E ∗This notice shall be posted along with the attached document (marked here as Appendix E) listing the 91 employers that constituted the certified multiemployer unit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 Abiele Contracting, Inc. Able Electrical Contracting Action Electrical Contracting Alco Electric Co. All Phase Electric Accurate Electric Alpha Maintenance & Electrical Corp. Aly-Cine Electric Corp. Atlas Electric Contractors, Inc. Wm. Beeferman, Inc. Bernard Pasquale, Inc. P. Barry Contractors, Inc. Bisantz Electric Co., Inc. Blake Electric Contracting Co., Inc. Boys Electric Bran Electric Ralph Borelli Electric C. B. Electric C & L Electric, Inc. Chapman Contracting Co. Colony Electric Company Con Tech Electric Service Co., Inc. Cotroneo & Marino’s United Electric Co., Inc. County Wide Electric Cunardi Electrical Contracting Contracting, Inc. Dececk & Leonard, Inc. DiFrancia Electric, Inc. Eaton Electric, Inc. Eugene Iovine, Inc. Expert Electric, Inc. Falcone Electric Corporation Feola Electric, Inc. Ferguson Electric, Inc. Ferrara Electric, Inc. G & R Electrical Contracting, Inc. Gateway Electrical Contracting Corp. George F. Kolsch, Inc. Gilston Electric Contracting Corp. Global Electrical Contractors, Inc. Granna Electric, Inc. Heller Electric Contractors Hunts Point Electric Corp. Interphase Electrical Contractors Corp. J. K. Electric Jade Electric Kew Electric Co. L & H Power, Inc. La Rene Electrical Co., Inc. Lesil Reliable Electric Co., Inc. Lipco Electric Co. Lisa Electrical Inc. Lobello Electric M.P.E. Electrical Contracting Corp. d/b/a Star Electric Maximum Electrical Contracting Corp. Milad Contracting Corp. Mondl Electric Co., Inc. Neon Images Norlin Electric M. Ostroff Electric, Inc. Taglifaferro & Sons Electrical Co. d/b/a Northern Electric North American Neon d/b/a North American Mainte- nance Ozone Electric P.T.R. Electric Corp. Pantel Contracting Corp. Paul Mock, Inc. Petri Electric Corp. Point Electric Ltd. Positive Electrical Associates, Inc. Preferred Contracting, Inc. Raymour Electric Company Robert E. Burden Electrical Contractors Schneider Electric Company Seymour Electric Service, Inc. Solar Electrical Company Square Electric Co., Inc. Standard Maintenance, Inc. Star Brite Electric Corp. Suriano Electric T. Reilly Electrical Corp. f/k/a Modica & Reilly Elec- tric Corp. T & A Electrical Contractors T & J Electrical Contractors Tap Electrical Contractors Service Tocs Electrical Contracting Corp. Tri-Town Electric Corp. Triac Electric Corp. V & R Electrical Contractors, Inc. Valquest Contracting Co., Inc. Vintage Electric Corp. W.P.C. Electric W. T. Hickey Corp. Willmont Electric Corp. Elias Feuer, Esq., for the General Counsel. James Frank and David Prager, Esqs. (Phillips Nizer Benjamin Krim & Ballon, LLP), for Respondent Expert Electric. Steven Goodman and Bonnie Parente, Esqs. (Jackson, Lewis, Schnitzler & Krupman, Esqs.), of Woodbury, New York, for Respondent United Electrical Contractors Association and certain Individual-employer members of the Associa- tion. Richard Brook and Patricia Palmeri, Esqs., of Mineola, New York, for Local 3. EXPERT ELECTRIC, INC. 25 DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. On February 23, 1993, Local 3, International Brotherhood of Electrical Work- ers, AFL–CIO (Local 3) was certified by the Board following an election in which Local 3 received more votes than Local 363, Teamsters, which had represented the United Electrical Contractors Association (UECA’s) employees for approxi- mately 20 years. The certified unit is as follows: All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field em- ployed by employer-members of Respondent [United Electri- cal Contractors Association a/k/a United Construction Con- tractors Association], but excluding all office clerical employ- ees, guards and supervisors as defined in the Act. UECA refused to bargain in order to test the certification and on October 29, 1993, the Board granted the General Counsel’s motion for summary judgment and directed that UECA bargain with Local 3. UECA, 312 NLRB 1118 (1993). On September 2, 1994, the Second Circuit Court of Appeals enforced the Board’s bargaining order. Based upon a charge filed on April 23, 1998 by Local 3, a complaint was issued on July 16, 1998 in Case No. 29–CA– 21967 against Expert Electric, Inc. (Expert), which alleged that on about April 21, 1998, Expert withdrew its recognition of Local 3, thereby refusing to bargain with Local 3 as the exclu- sive collective-bargaining representative of its employees who were included in the unit set forth above. The complaint further alleged that Expert withdrew recognition from Local 3 notwith- standing that it has been an employer-member of UECA and that Local 3 has represented and continues to represent Expert’s employees in the multiemployer unit set forth above. Expert denied the material allegations of the complaint and asserted certain affirmative defenses which will be discussed below. On November 10, 1998, a charge was filed by Local 3 in Case 29–CA–22339 against UECA. The charge alleged that since about September 23, 1998, UECA failed and refused to negotiate with Local 3 because UECA has refused and refuses to negotiate “as a group” as required by the decision of the Board and the Second Circuit Court of Appeals. On April 28, 2000, a complaint was issued against “United Electrical Con- tractors Association a/k/a United Construction Contractors Association (UECA) and its individual—employer members (see Appendix)” which alleged that on about June 11, 1998, UECA verbally withdrew recognition from Local 3 as the ex- clusive collective-bargaining representative of its employees in the unit set forth above, and since that date Respondents have refused to meet and bargain with Local 3 on a multiemployer basis as the exclusive collective-bargaining representative of the unit employees. UECA filed an answer and a second amended answer to the complaint. Its first answer admitted service of the charge upon it, but its second amended answer denied knowledge of the service of the charge upon it and upon any of the individual employers set forth in the appendix. The answer denied the material allegations of the complaint and asserted certain affirmative defenses which will be dis- cussed below. A motion to dismiss and a motion for summary judgment re- garding Case 29–CA–22399 were filed with the Board. They relate to matters alleged in the affirmative defenses asserted by UECA and Expert. On September 5, 2000, the Board denied the motions on the ground that they raise genuine issues of mate- rial fact which would better be resolved after a hearing before an administrative law judge. The matters raised in the motions are discussed herein. On eight days in October, 2000, a hearing was held before me in New York, New York.1 Upon the evidence presented in this proceeding, and my ob- servation of the demeanor of the witnesses and after considera- tion of the briefs filed by counsel for the General Counsel, Lo- cal 3, UECA, Expert, and Square Electric Co. Inc., I make the following FINDINGS OF FACT I. JURISDICTION The complaints allege and I find based upon the testimony of UECA director Patrick Bellantoni that UECA has been an or- ganization composed of various employers engaged as electri- cal contractors in New York State, one purpose of which is to represent its employer-members in negotiating and administer- ing collective-bargaining agreements with various labor organi- zations including Local 3. The complaints also allege and UECA admits that at all times material it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. UECA’s second amended answer admits that all the employers set forth in the appendix are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Expert admits that it is a New York corporation engaged in electrical contracting services, and that during the past year it has performed services valued in excess of $50,000 for various enterprises located in New York State, each of which enter- prises is directly engaged in interstate commerce and meets a Board standard for the assertion of jurisdiction, exclusive of indirect inflow or indirect outflow. UECA and Expert admit that Local 3 is a labor organization within the meaning of Section 2(5) of the Act. II. CASE 29–CA–22399 A. Procedural Issues Due Process and Laches The charge was served only upon UECA and not upon its in- dividual-employer members. The complaint, which was issued 1–1/2 years after the charge was filed, was served upon UECA and the individual-employer members of UECA. 1 General Counsel made a motion to consolidate these cases with Case 29–CA–18784 and 29–CA–21456. I rejected the motion. Ex- tended discussion on the record sets forth my reasons. Moreover, in view of my decision herein that the extended certification year cannot be used to provide jurisdiction over the individual-employer members of UECA which is General Counsel’s main reason for the motion, the motion therefore is rendered moot. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 General Counsel correctly argues that UECA was charged with representing its members in the underlying refusal to bar- gain litigation before the Board and the Second Circuit Court of Appeals, and that it has acted in behalf of its individual- employer members in representing them during negotiations. However, those facts cannot cure a fundamental procedural defect in this case. Section 10(b) of the Act provides that “no complaint shall is- sue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . .” Here, the alleged unfair labor practice occurred on Septem- ber 23, 1998, the charge was filed on November 10, 1998, and the complaint was issued 1–1/2 years later on April 28, 2000. In Sewanee Coal Operators Assn., 167 NLRB 172, fn. 4, and at 177 (1967), the Board held that it has “regularly refused to hold that participation in a multiemployer bargaining unit or in a multiemployer contract constitutes one participant the agent of another for the purpose of accepting service.” The Board found that the failure to serve certain members of a multiemployer unit with charges within the 10(b) period required dismissal of the complaint as to them.2 See George D. Auchter Co., 102 NLRB 881, 885 (1953), where the Board dismissed a complaint against an association which was not timely served with a charge alleging that an individual employer refused to employ an individual. General Counsel cites Southwestern Colorado Contractors Assn., 153 NLRB 1141, 1147 (1965), in support of his argu- ment that proper service has been made upon the individual- employer members of UECA. In that case, an appendix was attached to the charge in which the individual respondent- members of the association were named, and the Board found timely service of the charge upon the individual respondents even though the charge did not name the individual employers. Here, of course, the individual-employer members were not served with the charge and were not named in any appendix attached to the charge. They were, however, served with the complaint which named them as individual employer- respondents, but that was 1-½ years later. I accordingly cannot find that the charge was timely filed against the individual-employer members of UECA. On September 24, 1994, the Second Circuit Court of Appeals enforced the Board’s order requiring bargaining by UECA. Bargaining began on October 24, 1994. The certification year began following affirmance of the Board’s bargaining order and when bargaining in good faith began. Accordingly, the certification year began on October 24, 1994. Van Dorn Plastic Machinery Co., 300 NLRB 278, 279 (1990). General Counsel argues, in the alternative, that the certifica- tion year must be extended, and as extended, service of the 2 General Counsel’s attempt to distinguish Sewanee is unavailing. The additional facts in that case that the association was informal and had dissolved prior to the start of the 10(b) period when the violation occurred are dicta which do not modify the basic holding in the case, that charges must be served upon the charged party within the 10(b) period. complaint upon the individual-employer members was timely. In related Case 29–CA–18784 I found that the certification year should be extended because of the unfair labor practices en- gaged in by Respondents, specifically the failure to furnish information and the delay in furnishing information to Local 3. General Counsel reasons from this that since the certification year had not yet expired on April 25, 2000 when the complaint here was served upon the individual-employer members, ser- vice of the complaint upon them constituted timely service. I do not agree. First, extension of the certification year is a remedy for unfair labor practices and cannot serve as the basis for pro- viding jurisdiction over the individual-employer members of Respondent when timely service of the charge had not been initially made. Further, service of the complaint outside the 10(b) period cannot provide jurisdiction over those respondents regardless of whether the certification year has been extended. I accordingly shall order that the complaint in Case 29–CA– 22399 against all the individual-employer respondents be dis- missed for failure of timely service of the charge upon them, and the Order in this case shall apply to UECA only.3 With respect to the defense that the complaint is barred by the failure to obtain jurisdiction over and join all necessary parties, General Counsel stated that the complaint was served upon only 58 employers who he determined were still in busi- ness. The other employers who comprised the 91 original indi- vidual-employer members of UECA were not served because they were no longer in business. General Counsel further stated that the 91 UECA members were covered by the multiemployer certification, and not all of them are necessarily bound to bar- gain with Local 3, particularly since they are no longer viable as they are out of business. I do not believe that this case must fail because all of the 91 original individual-employer members of UECA were not joined in this case, particularly in view of my holding that the complaint as to all of them must be dismissed for failure to timely serve the charge upon them. B. The Facts 1. The bargaining As set forth above, in September, 1994, the Second Circuit Court of Appeals ordered UECA to bargain with Local 3. Bar- gaining began on October 24, 1994 and continued through June 11, 1998 comprising about 50 bargaining sessions. UECA was represented by counsel throughout the bargaining and in addi- tion its bargaining team included certain individual-employer members of UECA. Local 3 was represented by Vincent McEl- roen, its business representative. At about the first or second bargaining session on December 14, 1994, McElroen presented the first contract proposal of Local 3. It consisted of a list of 46 items (called a “table of 3 In the event that the Board does not agree with my decision to dis- miss the complaint against the individual-employer members, it should be noted that I granted General Counsel’s motion for summary judg- ment for failure to file an answer to the complaint against the following individual-employer members of UECA: Bisantz Electric, Bran Elec- tric, C & L Electric, Con Tech Electrical, Falcone Electric, Feola Elec- tric, Lisa Electric a/k/a YNR Electric, Milad Contracting, Mondl Elec- tric, and Northern Electrical. EXPERT ELECTRIC, INC. 27 contents” by UECA), with no details, which Local 3 sought to negotiate. At that meeting, Local 3 sought to have UECA agree to sign the contract that had already been negotiated between the New York Electrical Contractors Association (NYECA) and Local 3. That offer was rejected by UECA, which insisted upon the presentation by Local 3 of a full proposal containing economic and all other terms. On January 26, 1995, Local 3 submitted a comprehensive proposal containing specific wages, hours and benefit propos- als. That was the last proposal submitted by Local 3. McElroen testified that UECA made “hundreds” of information requests concerning his proposal before it was prepared to make a com- plete proposal. Thereafter, McElroen made short, 1 or 2 page proposals in response to clauses that were being negotiated. In March, 1995, UECA made a partial written proposal to Local 3, and a further written proposal in July. After consider- able bargaining, one year later, in June, 1996, UECA presented its complete written proposal. In about June, 1996, Local 3 asked UECA to sign a recognition agreement which stated that UECA agreed that Local 3 was the certified bargaining repre- sentative. McElroen explained that he offered the recognition agreement in an effort to “move the negotiations along.” In August and September, 1996, McElroen advised UECA that Local 3’s proposal of January, 1995 was no longer on the table because UECA’s counterproposal of June, 1996 rejected Local 3’s proposal in its entirety. Accordingly, Local 3 with- drew its proposal when UECA presented its counterproposal. At hearing, McElroen explained that he told UECA counsel Steven Goodman that Local 3’s proposal was withdrawn since the parties were working from UECA’s proposal. On January 16, 1997, McElroen proposed that UECA sign an interim agreement in the same form as those which were signed by certain individual-employer members of UECA. McElroen testified that bargaining continued up until the last session in June, 1998. “Informal negotiations” began in the second half of 1997 which included discussions of red-lining employees who were laid off so that they would be reemployed by the same employer, payments to the benefit funds of Locals 3 and 363, placement of foremen in the bargaining unit, pay- ment of supplemental money to employees as opposed to pay- ment into the funds, employment of shop stewards, hire of em- ployees from outside Local 3, subcontracting, and the term of the contract. McElroen conceded that Local 3 made no written proposals as to any of these subjects. 2. The alleged withdrawal of recognition by UECA The complaint alleges that on about June 11, 1998, UECA verbally withdrew recognition from Local 3 as the exclusive collective-bargaining representative of its employees in the unit set forth above, and since that date Respondents have refused to meet and bargain with Local 3 on a multiemployer basis as the exclusive collective-bargaining representative of the unit em- ployees. UECA director Bellantoni presided over a meeting of the UECA board of directors in May, 1998. They discussed the facts that the association was “powerless” because the member- ship was reduced to about 22 active members, at least 20 em- ployers had signed interim agreements with Local 3, company representatives were not attending meetings, and union- requested information was not forthcoming from the employ- ers. It was decided that it would be “futile” to continue negotia- tions as an association and that the individual employers should negotiate with Local 3 on an individual basis. He stated at the hearing that once the member-employers signed interim agree- ments they no longer cooperated with UECA in supplying re- quested information. The UECA board also discussed that after Local 3 had made its initial proposals it withdrew them and had no current proposals on the table for 2 years. Bellantoni told the UECA board that he believed that Local 3 was not bargaining in good faith because it was making absurd requests for infor- mation, for example, when UECA proposed that employees be disciplined for just cause, Local 3 requested that each of the 91 employers in UECA provide its definition of just cause. Ac- cording to Bellantoni, in May, 1998, there were only perhaps 22 active employers in UECA. McElroen testified that at a scheduled negotiation session on June 11, 1998, UECA attorney Goodman told those assembled that due to disaffiliation, loss of members and other reasons, UECA was “dropping out of negotiations” with Local 3 and no longer represented any employers who were part of the Board- certified unit. McElroen asked if the latest UECA bargaining proposal was still on the table, and Goodman replied that nego- tiations have broken off so he believed that it was no longer on the table. Goodman added that he would continue to represent UECA with respect to outstanding unfair labor practice charges and certain individual members of UECA. Goodman suggested that Local 3 contact the individual employers and suggest that they engage in individual bargaining with Local 3. McElroen further stated that Goodman gave as reasons for UECA’s withdrawal from negotiations, the fact that a number of individual employers signed interim agreements with Local 3, others had not responded to UECA, and others, such as Ex- pert, had retained separate attorneys to represent them in mat- ters pending at the Board. McElroen conceded that Goodman may have told him that UECA believed that it was unable to continue bargaining because of the number of employers who had signed interim agreements with Local 3. The interim agreements are separate agreements that Local 3 signed with UECA members during the course of the bargain- ing with UECA. Local 3 signed a total of 19 interim agreements with individ- ual-employer members of UECA. Three were executed in 1991, prior to the Board’s certification of Local 3.4 Two were signed in 1994 before to the beginning of multiemployer nego- tiations.5 Eleven were signed during negotiations from 1995 through June, 1998,6 and the final 3 were signed in 2000.7 The interim agreements provide that the employer recognizes Local 3 as the representative of its employees as described in the February 23, 1993 certification. The interim agreements 4 Maximum Electric, Milad Contracting, and Positive Electric. 5 Accurate Electric and Ferguson Electric. 6 Vintage Electric, Colony Electric, Lipco Electrical, Total Electri- cal, G & R Electrical, Pantel Contracting, County Wide Electric, All Phase Home Power, Kew Electric, Impulse Enterprises, and V & R Electrical. 7 Gilston Electrical, Farica Electrical and Action Electric. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 also express the intention and desire of the parties that Local 3 will be able to secure an agreement with UECA “as soon as possible” but they are entering into the interim agreement “be- cause a Union-UECA Agreement is not likely to be achieved in the immediate future.” Each interim agreement provided that the wages, benefits and other terms and conditions of employ- ment of the employees would be the same as the current collec- tive-bargaining agreement between NYECA and Local 3. In this connection, Local 3 and NYECA, an organization which represents electrical industry employers in multiemployer bar- gaining, have had a collective-bargaining relationship for many years. The interim agreements provide that they shall terminate upon the effective date of a UECA—Local 3 contract, and that the parties to the interim agreement shall execute the UECA— Local 3 contract. Certain interim agreements exempt the em- ployer’s employees from participating in the furlough program for 2 years. In addition, the interim agreements waived the 6-month wait- ing period for employees’ eligibility for medical coverage. UECA director Bellantoni testified that the employers which signed interim agreements failed thereafter to cooperate with UECA’s negotiation efforts in providing information requested by Local 3. Bellantoni’s estimate that 50% of the employers covering 300 employees eventually signed interim agreements with Local 3 does not agree with the facts inasmuch as the evi- dence shows that only 19 of the original 91 employers, or the 58 employers who General Counsel has identified as still being in business, have signed interim agreements. McElroen testified that the purpose of the interim agree- ments was to meet the needs of certain employers who were part of the UECA unit but were frustrated with the negotiation process and sought an agreement with Local 3. McElroen stated that in all cases the individual employers initiated the request for an interim agreement, and sought an exemption from the furlough arrangement in order to maintain their employees’ morale and maintain their current work force. He further stated that the intent of the agreements was to provide employers and employees with the full benefit of the NYECA agreement as an interim measure until a contract was reached between Local 3 and UECA. Following the June 11 session, on August 28 McElroen wrote to Goodman, advising that he believed that UECA’s failure to continue to negotiate with Local 3 may be in con- tempt of the Circuit Court’s Order. He asked to resume negotia- tions, offering certain dates for bargaining. On September 23, Goodman wrote that “as I advised you on June 11, 1998, the UECA is no longer representing employers in contract negotia- tions with Local 3 IBEW.” The letter included a list of 22 UECA employers who advised Goodman that they were pre- pared to negotiate individually with Local 3 and that he (Goodman) was authorized to represent them at negotiations. Goodman asked that McElroen contact him so that individual negotiations could be held on behalf of those employers. On September 24, McElroen sent letters to all 91 employer- members of UECA, advising them that they were obligated to negotiate with Local 3 pursuant to the Second Circuit’s Order and that “failure by the employer group to continue to negotiate with Local 3 may constitute contempt” of that Order. The letter further advised that “even though UECA has withdrawn from these negotiations, this withdrawal does not eleviate [sic] the employer members of UECA from their obligation to bargain as a group. The letter advised that the Court’s Order “does not permit individual bargaining (unless it is for an interim agree- ment) and . . . requires group bargaining on behalf of the entire group by their designated negotiator.” Finally, the letter sug- gested that the employers “convene for the purpose of selecting a committee to negotiate on behalf of the group.” In early October, 3 UECA contractors, V & R, Lipco and Milad sent a letter to the other individual-employer members asking that a meeting be held to organize a new association for the purpose of completing negotiations with Local 3 and exe- cuting a contract with that union. Those 3 employers all had signed interim agreements with Local 3. Bellantoni was not invited to the meeting but he and UECA counsel Goodman attended. Goodman represented about 21 individual-employer members at that time. No new multiemployer bargaining group emerged from this meeting or any subsequent meeting. 3. UECA’s affirmative defenses In addition to UECA’s Section 10(b) defense, discussed above, it asserts that its conduct was privileged or permissible based upon the conduct of Local 3 at and during negotiations, and that Local 3 fragmented the collective-bargaining unit by engaging in separate collective-bargaining negotiations with other members and/or former members of UECA and by sign- ing separate collective-bargaining agreements with other for- mer members of UECA. (a) Alleged bad-faith bargaining UECA alleges as a defense to its actions that Local 3 has not engaged in good-faith bargaining with UECA by failing to make a contract proposal for more than 1 year, and engaged in other bad faith conduct. UECA argues that Local 3 engaged in bad faith bargaining by refusing to make bona fide contract proposals, withdrawing its only proposal, refusing to offer any counter proposals and making unreasonable demands for information which it knew UECA was incapable of producing. I disagree. I cannot find that Local 3 has engaged in bad faith bargain- ing. More than 50 bargaining sessions were held in nearly 4 years of bargaining. In 1998 bargaining had been ongoing and certain proposals and discussions, undertaken in the second half of 1997, set forth above, were still ongoing. Thus “red-lining” employees, payments to the benefit funds of Locals 3 and 363, placement of foremen in the bargaining unit, payment of sup- plemental money to employees as opposed to payment into the funds, employment of shop stewards, hire of employees from outside Local 3, subcontracting, and the term of the contract were still the subject of discussions in 1998. Thus, although Local 3 withdrew its complete written proposal in June, 1996 it continued to bargain with respect to UECA’s proposal and made the proposals and engaged in negotiations as set forth above thereafter. Local 3 initially sought to have UECA sign a contract that had already been agreed to by NYECA. That was rejected by UECA and Local 3 submitted a “table of contents” as to the areas it wished to negotiate. When that was unsatisfactory to EXPERT ELECTRIC, INC. 29 UECA, it offered a complete, comprehensive contract proposal containing detailed demands relating to economic and non- economic matters. Thereafter, Local 3 made short 1 or 2 page proposals in response to the provisions that were being negoti- ated. After UECA presented its counterproposal, the parties then bargained from that proposed agreement. Although Local 3 technically “withdrew” its original contract proposals in June, 1996, nevertheless bargaining continued for 2 years thereafter. “Informal” negotiations included discussions concerning mate- rial matters. UECA offers as examples of Local 3’s misconduct the un- ion’s insistence that information concerning UECA’s proposal relating to discharge for just cause be obtained from the 91 original individual-employer members of UECA when it knew that such information was unobtainable. UECA argues that Local 3 engaged in such conduct in order to prolong the nego- tiations while at the same time “break UECA” by entering into interim agreements with its members and taking its employees and putting them into shops covered by a Local 3 contract. The Board has held that a union’s bad faith bargaining may, in certain circumstances, excuse an employer’s refusal to bar- gain. Chicago Tribune Co., 304 NLRB 259, 260 (1991). I cannot find, that under these circumstances, where bargain- ing continued in 50 sessions over 4 years, that Local 3 engaged in bad faith bargaining. Nor can I find that any of the other conduct alleged by Respondents, considered separately or to- gether, constituted bad faith on the part of Local 3 which per- mitted Respondents to withdraw from multiemployer bargain- ing. (b) Fragmentation of the bargaining unit UECA and Expert argue that Local 3’s actions in obtaining interim agreements from UECA employers while at the same time engaging in multiemployer bargaining with their represen- tative undermined UECA’s negotiating position and frag- mented the bargaining unit so as to render continued multiem- ployer bargaining futile, and that such conduct constitutes suf- ficient unusual circumstances to permit their withdrawal from bargaining with Local 3. In addition, UECA contends that the employers who signed such interim agreements failed to cooperate with UECA in negotiations and withdrew their support for UECA and caused their termination of membership in that group. In Retail Associates, 120 NLRB 388, 395 (1958), the Board held that where multiemployer bargaining negotiations have begun, withdrawal of an employer from such negotiations is not permissible absent unusual circumstances. The “unusual cir- cumstances” exception has historically been limited to only the most extreme situations. Chel LaCort, above. “Unusual circumstances will be found where an employer is subject to extreme financial pressures or where a bargaining unit has become substantially fragmented.” Charles D. Bo- nanno Linen Service v. NLRB, 454 U.S. 404, 411 (1982), or “when the multiemployer unit has dissipated to the point where the unit is no longer a viable bargaining entity.” Chel LaCort, 315 NLRB 1036 (1994). In Bonanno, the Court stated that where interim agreements executed by a union in multiem- ployer bargaining were “temporary: both the union and the employer executing the interim agreement were bound by any settlement resulting from multiemployer bargaining [then] the signers maintained a vested interest in the outcome of final union-association negotiations, the multiemployer unit was neither fragmented nor significantly weakened and unilateral withdrawal was not justified.” Bonanno, at 414. The Court noted that by executing such interim agreements the employers have an “equivalent stake” in the outcome of multiemployer negotiations because the final contract would apply to all em- ployers, including the signers of the interim agreements. In contrast, the Court noted that a union which entered into “separate agreements that will survive unit negotiations . . . effectively fragmented and destroyed the integrity of the bar- gaining unit as to create an ‘unusual circumstance’ under Retail Associates.” Bonanno, at 414–415. Here, all the interim agreements entered into between Local 3 and the individual-employer members were “temporary” in nature. They all expressly state that they shall terminate upon the effective date of a UECA—Local 3 contract, and that the parties to the interim agreement shall execute the UECA— Local 3 contract. Accordingly, the signers maintained a vested interest in the outcome of final union-association negotiations, and an “equivalent stake” in the outcome of multiemployer negotiations because the final contract would apply to all em- ployers, including the signers of the interim agreements. The interim agreements executed here thus conform to the Court’s view that they “tend to deter rather than promote unit fragmen- tation since they preserve a continuing mutual interest by all employer members in a final association-wide contract. Bo- nanno, 454 U.S. at 415–416 Here, only 19 of the original 91 employers, or the 58 em- ployers who General Counsel has identified as still being in business, have signed interim agreements. Because such a small number of employers have signed interim agreements it cannot be said that the unit has been dissipated to such an extent that the multiemployer unit is no longer viable. The Board has found no fragmentation where 40 of 65 of a multiemployer association’s members signed interim agreements. Joseph J. Callier, 243 NLRB 1114, 1115 (1979). Respondents point to the interim agreements with V & R Electrical and Impulse Enterprises, both signed in August, 1997, which appear to be separate agreements and not true interim agreements.8 Both interim agreements contain a Memorandum of Understanding which provide that it “shall survive the expiration of the interim agreement and shall re- main in effect under any Union/UECA Association agreement reached in accordance with paragraph 6 of the interim agree- ment.” That paragraph provides that the employer agrees to be bound by any agreement reached between Local 3 and UECA, and that the interim agreement terminates upon the effective date of such UECA contract. The Memorandum of Understanding contains provisions not included in the standard interim agreement, such as the em- ployer is permitted to complete jobs in progress “in accordance 8 At the time of the execution of the interim agreements, there was some issue as to whether Impulse was an alter ego, successor or assign of V & R. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 with the way . . . the employer bid the individual jobs.” The Memorandum also provides that employees are exempt from participation in the furlough program for 2 years. In addition, the Memorandum contains a provision which states that if the “survival” clause is determined by the Board to be inconsistent with the proper scope of an interim agreement, it shall be null and void, and Local 3 and the employer shall meet to discuss the effect of such a determination. McElroen testified that such Memoranda were entered into in order to address certain issues the employers raised. The employers sought to be permitted to engage in certain work practices which were prohibited in the NYECA contract to which they were bound pursuant to the interim agreement pend- ing execution of a Local 3—UECA contract. McElroen stated that the employers wanted assurances that those work practices that they had been doing on those specific jobs would remain in effect because they had bid those jobs in the belief that they could continue their work practices through the term of the job contract. I do not believe that the Memorandum of Understanding de- tracts from a finding that the interim agreements were intended to be temporary agreements which would not survive the exe- cution of a UECA contract. McElroen’s testimony establishes that the Memorandum addressed particular needs of companies which had a legitimate interest in finishing outstanding work based upon the methods and practices it expected to continue. The execution of the standard interim agreement would have caused the companies to agree to the NYECA contract which prohibited the methods of work performed on those jobs. Thus, the Memorandum addressed a limited need for the work to be continued and completed through the execution of the UECA contract. The cases cited by Respondents, Typographic Service Co., 238 NLRB 1565 (1978), and Connell Typesetting Co., 212 NLRB 918 (1974), are inapposite. In Typographic, the union engaged in individual bargaining with employers, and offered agreements which differed from each other. The Board held that the principles underlying the purpose of multiemployer bargaining such as uniform rates of pay, hours and working conditions for employees in the multiemployer unit were un- dermined by the union’s different contracts with the individual- employer members of the association, and such conduct permit- ted withdrawal of those employers from the unit. Here, the facts are completely different. The interim agree- ments executed between Local 3 and the employers were the same. They all provided that the terms of the NYECA contract would apply until the execution of a Local 3-UECA contract, at which time the interim agreements would terminate and all employers would be bound by the UECA contract. In Connell, the Board found no violation where employers withdrew from the multiemployer unit. The number of employ- ers who had signed interim agreements, 23 of 36 in the unit, was so great as to lead to a finding that the unit had been so reduced in size and strength that it was no longer viable. In contrast, here only 19 of the original 91 employers, or the 58 employers who General Counsel has identified as still being in business, have signed interim agreements. I accordingly reject Respondents’ argument that the unit has been fragmented to an extent that multiemployer bargaining is futile. III. CASE 29–CA–21967 A. The Facts During the course of the bargaining, Expert sent a letter dated April 21, 1998 to Local 3 which stated: On April 15, 1998, Expert Electric received a petition signed by a majority of its employees which states: “We do not want to be represented by I.B.E.W. Local Union #3. We withdraw Local 3 authority to bargain on our behalf.” Based upon this objective evidence of the Union’s loss of ma- jority support and pursuant to the National Labor Relations Act, Expert Electric must and hereby does withdraw its rec- ognition of Local 3 as the collective bargaining representative of its employees. We trust that you will join us in respecting and abiding by our employees’ clearly expressed desires. McElroen testified that prior to receiving that letter he had not received any notice from Expert or UECA advising that Expert wished to withdraw from multiemployer bargaining. Immediately upon receipt of the letter, Local 3 filed the instant charge, alleging Expert’s unlawful withdrawal of recognition of Local 3. The events leading up to the April 21 letter are as follows. Peter Castranova, an employee of Expert, stated that his fel- low workers discussed the possibility of not having Local 3 as their bargaining representative. Their reasons included their desire to have apprentices working with them. Local 3’s ap- prenticeship program was in effect for the employers covered by the NYECA contract and those employers who signed in- terim agreements with Local 3 could therefore participate in the apprenticeship program. According to Expert vice president John Micelotta, Expert applied to the New York State Depart- ment of Labor for a registered apprenticeship program, but was rejected because Local 3 had to give its approval and Local 3 refused. In contrast, under the former Local 363 contract, ap- prentices were employed on Expert’s job. Another concern was Local 3’s mandatory furlough or work- share program in which employees are subject to mandatory layoff in the event of low employment in the industry. In such a case, the employee placed on furlough is replaced by another worker who was unemployed. Castranova stated that his brother John called the Board and prepared a petition, the text of which is set forth in Expert’s letter above. Peter and John, who are second cousins of John Micelotta, solicited signatures at their worksites. Peter stated that he did not discuss the petition with Expert’s officials be- fore he circulated it. Similarly, John Micelotta testified that he had no conversations with the men before they presented the petition to him. Nine employees signed the petition, and John Castranova gave the signed petition to John Micelotta.9 9 The signatories are John and Peter Castranova, Ray Rinaldi, Joseph Von Nessen, Shaun Abrams, Eric Lugo, Jerry Garafolo, Frank Beni, and Robert Cavazzini. EXPERT ELECTRIC, INC. 31 Employee Joseph Von Nessen testified that he signed the pe- tition voluntarily, and he saw other employees sign it freely. Employee Frank Beni stated that when first asked to sign the petition by John Castranova he refused, saying that there was turmoil between Locals 3 and 363 and he did not want to “rule out any future options.” Beni stated that during the next week he again refused to sign the petition and was told by Peter Cas- tranova that he was either “with us or against us and you know what happens then.” An argument ensued. About 1 week later, John apologized for Peter’s conduct and again asked him to sign. Beni signed since he believed that he had “no other choice.” Employee Shaun Abrams entered a trailer at a jobsite and was told by an employee “o.k. we’ve got to sign this pa- per.” Abrams signed. Also present at that time was Ray Rinaldi, another employee of Expert. Abrams testified that although he signed the petition he nevertheless wanted to continue to be represented by Local 3. He stated that he signed the petition because he believed that “probably not signing it might cost me my job.” However, he stated that no one forced him to sign. About one month later, Expert’s employees, including Abrams and Beni signed a petition to be sent to Teamster Inter- national President Hoffa. The petition, which was circulated by a fellow employee, stated that they became members of Local 3 by “mistake” and asked Hoffa to intercede in their behalf to reinstate their membership in the Teamsters union. Employee Von Nessen testified that during his work at the Rikers Island project, John Micelotta was the project manager and Rinaldi was in charge of the day to day work. Rinaldi, who was a member of Local 363, reported to Micelotta and the as- sistant project manager. Von Nessen stated that Rinaldi had no authority to hire or discharge. Ernesto Graziano worked for Expert for 7 years. He testified that Rinaldi “ran” the Rikers Island job as the foreman, and did not work with hand tools at that job. He stated that he was told by Rinaldi that he fired employee Robert Antonio. Antonio told Graziano that he called in sick and was discharged by Rinaldi. Graziano further stated that as a certain job was being com- pleted Rinaldi discharged several workers, and Graziano was told by one worker that he had just been fired by Rinaldi. Graziano also stated that Frank Micelotta hired him and also makes the decision to discharge employees. B. Expert’s Affirmative Defenses Expert’s material affirmative defenses in addition to those discussed above10 are that (a) it was justified in withdrawing recognition based upon the decertification petition presented to it by its employees (b) UECA expelled Expert from member- ship in UECA and thereafter ceased to represent Expert in ne- gotiations with Local 3 (c) Local 3 has not engaged in good- faith bargaining with UECA by seeking to deprive employees of benefits they presently receive (d) Local 3 and UECA reached an impasse in collective-bargaining negotiations prior to April, 1998 and (e) Local 3 threatened retaliation against 10 Certain affirmative defenses raised by UECA and discussed above such as fragmentation of the unit and bad faith bargaining by not mak- ing a contract proposal for more than 1 year, are the same as those raised by Expert. A repetition of that discussion is not necessary. employees of Expert who were formerly members of Teamsters Local 363 regarding job assignments and pension benefits. 1. The decertification petition The complaint alleges that on about April 21, 1998, Expert withdrew its recognition of Local 3, thereby refusing to bargain with Local 3 as the exclusive collective-bargaining representa- tive of its employees who were included in the unit set forth above. The complaint further alleges that Expert withdrew rec- ognition from Local 3 notwithstanding that it has been an em- ployer-member of UECA and that Local 3 has represented and continues to represent Expert’s employees in the multiemployer unit set forth above. General Counsel argues that Expert was not entitled to honor the petition presented to it since it was part of the multiem- ployer unit. He argues, alternatively, that Ray Rinaldi is a su- pervisor and should not be counted toward the number of Ex- pert’s employees who signed the petition. Local 3 argues that the evidence establishes that Abrams and Beni were coerced into signing the decertification petition. Contrary to General Counsel and Local 3, I find that there is no evidence that the decertification petition was tainted by im- proper conduct. The fact that the petition was prepared and circulated by the Castranovas who are relatives of the Micelot- tas does not establish that they are agents of Expert’s officials or that company officers were aware of their activity. I simi- larly cannot find that Peter Castranova threatened Beni. Beni voluntarily signed the petition after an apology was made, and 1 month later signed a petition asking Teamster president Hoffa to help him become a member of the Teamsters union. There is some question as to whether Rinaldi is a statutory supervisor. Even assuming that he is a supervisor and cannot be counted toward the number of petition signers, nevertheless a total of 8 out of 10 employees signed the petition.11 I reject Expert’s argument that it was entitled to withdraw recognition from Local 3 based upon the decertification petition presented to it. Respondent’s alleged good faith doubt of the majority status of Local 3 “predicated solely on the desires of its own employees does not justify or excuse its untimely with- drawal from a multiemployer bargaining unit.” Since the ap- propriate unit is the multiemployer unit, the fact that a majority of Expert’s employees withdrew their support from Local 3 is immaterial, and did not permit Expert to withdraw from the multiemployer unit. Callier, above at 1118; Wm. Chalson & Co., Inc., 252 NLRB 25, 33 (1980). In addition, no question has been raised concerning Local 3’s majority status among the employees in the multiemployer unit.12 11 Tyson Foods, Inc., 311 NLRB 552, 556 (1993) and Lomasney Combustion, Inc., 273 NLRB 1241 (1984), cited by General Counsel are inapposite. In both cases, employer officials played active roles in the decertification effort. Such evidence is absent here. 12 In this regard I note that Local 3 has sought to have employees of the individual-employer members of UECA sign pledge cards during the bargaining. However, inasmuch as Local 3 already represents a majority of the employees in the unit, such affirmation of representa- tion does not detract from such representation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32 2. Expert’s expulsion from UECA According to Patrick Bellantoni, the director of UECA, Frank Micelotta who attended UECA strategy and negotiation sessions and was a member of the UECA board, was continu- ously disruptive of the meetings. It appears that Micelotta dis- agreed with the rest of the board regarding the direction of the negotiations—he disagreed with UECA’s willingness to grant concessions to Local 3, refused to provide further information to Local 3, and wanted his own attorney to handle non-labor UECA matters. Bellantoni explained that nothing could be accomplished at meetings where Micelotta was disruptive. Bellantoni testified that in October, 1997, Expert was ex- pelled from UECA because of Frank Micelotta’s behavior. Bellantoni stated that during negotiations in early 1998, Ex- pert’s remittance reports were not provided to Local 3. McEl- roen asked for Expert’s reports and Bellantoni replied that UECA no longer represents Expert. It should be noted that UECA’s notes of the negotiations contain no express statement that Bellantoni made that comment to Local 3, and McElroen denied being told by anyone that Expert had been expelled from UECA or that Expert wanted to withdraw from multiem- ployer bargaining. Further, Local 3 never consented to Expert’s withdrawal from the multiemployer unit. In addition, McElroen testified that following Expert’s letter to Local 3 advising that employees had signed a decertification petition, he asked UECA counsel Goodman about it. Goodman told him that he believed that Expert may have been expelled from UECA. McElroen replied that that was the first time he heard that, and then requested documents regarding expulsion of UECA mem- bers. Those documents were never provided. John Micelotta testified that he did not know why UECA ex- pelled Expert, but conceded that they disagreed concerning the management of UECA, negotiation tactics and choice of attor- neys. On February 4, 1998, Bellantoni sent a letter to Expert which stated that UECA “herewith expels you from member- ship. The Association will no longer allow you to attend Asso- ciation meetings or become involved in matters involving the Association or its members.” In Retail Associates, 120 NLRB 388 (1958), the Board held that an employer’s withdrawal from a multiemployer bargain- ing unit after bargaining has begun would not be permitted except upon mutual consent absent unusual circumstances.13 First, it is clear that Expert was a member of UECA and ac- tively participated in negotiations until its alleged expulsion in October 1997. However, I cannot find that Local 3 gave its consent to Expert’s withdrawal from the unit by expulsion. I credit McElroen’s testimony that he was not advised that UECA had expelled Expert and he had not given the consent of Local 3 to such expulsion. No credible evidence has been pre- sented which indicates otherwise. Immediately upon receiving Expert’s April 21 letter, Local 3 filed the instant charge. Further, Expert’s actions following its expulsion are incon- sistent with a timely consensual withdrawal from the unit. Thus, its letter of April 21, 1998 is instructive. The letter states that based upon the decertification petition of its employees it “hereby does withdraw its recognition of Local 3 as the collec- 13 The “unusual circumstances” exception is discussed above. tive-bargaining representative of its employees. We trust that you will join us in respecting and abiding by our employees’ clearly expressed desires.” If Expert had been expelled from UECA months before in October, 1997, and such fact was communicated to Local 3, why was the letter necessary? The letter was in effect a request that Local 3 agree with it that its employees were no longer interested in representation by Local 3 when, according to Expert, Local 3 had acquiesced in Ex- pert’s removal from the multiemployer unit 2 months before in early 1998. The Board has held that an employer by voluntarily refusing to pay dues to a multiemployer association thereby causing its own expulsion from the group cannot thereby escape its bar- gaining obligation with the multiemployer unit. Roberts Elec- tric Co., 227 NLRB 1312, 1317 (1977). If the holding was oth- erwise, employers may be tempted to fail to pay dues in order to avoid being bound to multiemployer bargaining. The same may be said of Expert’s expulsion. Although Expert was appar- ently expelled because of Frank Micelotta’s conduct toward UECA, it appears that Expert could have substituted John or another agent or official as the bargaining representative. There apparently were no complaints about John’s behavior during UECA’s strategy sessions. Accordingly, Expert’s own acts (Frank’s demeanor) caused its expulsion. I accordingly cannot find that Expert properly withdrew from the multiemployer bargaining unit. Its expulsion from UECA did not constitute a proper withdrawal inasmuch as no notice was given to Local 3, and that union did not consent to its expulsion or withdrawal. Accordingly, Expert remained a member of the multiemployer unit. Its employees therefore remained a part of the overall unit consisting of the employees of the multiemployer group. I accordingly find and conclude that Expert did not effec- tively withdraw from the multiemployer bargaining unit. 3. Local 3’s alleged depriving employees of benefits Regarding Expert’s assertion that Local 3 sought to deprive employees of benefits they were then receiving, McElroen testi- fied that he rejected UECA’s request that the unit employees receive an interim wage increase until an agreement was reached. In this regard, he stated that employees of a large number of UECA employers in fact received wage increases because they worked on prevailing wage rate jobs. That rate is based upon the wage rate in the NYECA—Local 3 collective- bargaining agreement. Wage raises set forth in that contract resulted in a wage increase for UECA employees on their jobs. Nevertheless, Expert argues that employers who wanted to grant a wage increase were thereby induced to sign interim agreements McElroen conceded that he objected to the New York State Department of Labor approving an apprentice pro- gram for UECA employers unless it was a jointly administered fund with an equal number of union and employer representa- tives. Such joint administration was not agreed to. Furthermore, Local 3 urged UECA to reach a collective-bargaining agree- ment with Local 3 so that an apprenticeship program would be achieved. The bargaining positions of Local 3 in relation to these issues is not evidence of bad faith and in addition did not EXPERT ELECTRIC, INC. 33 justify Expert’s attempted withdrawal from the multiemployer unit. 4. Impasse in negotiations I cannot find that Local 3 has engaged in bad faith bargain- ing. More than 50 bargaining sessions were held in nearly 4 years of bargaining. In April, 1998, when Expert attempted to withdraw recognition from Local 3, bargaining had been ongo- ing, and certain proposals and discussions undertaken in the second half of 1997, set forth above, were still continuing. Thus “red-lining” employees, payments to the benefit funds of Lo- cals 3 and 363, placement of foremen in the bargaining unit, payment of supplemental money to employees as opposed to payment into the funds, employment of shop stewards, hire of employees from outside Local 3, subcontracting, and the term of the contract were still the subject of discussions as of April, 1998 when the decertification petition was presented to Mice- lotta. I also cannot find that an impasse in negotiations existed in April, 1998. UECA had not withdrawn from negotiations at that time and bargaining issues were still outstanding. Moreover, the Supreme Court has upheld the Board’s view that impasse is not an “unusual circumstance” which would permit an em- ployer to withdraw from a multiemployer unit. Charles D. Bo- nanno Linen Service, 454 U.S. 402, 411 (1982); Atlas Transit Mix Corp., 323 NLRB 1144, 1148 (1997). 5. Alleged retaliation John Micelotta testified that in about November, 1996, five of Expert’s employees left a jobsite at the Manhattan Psychiat- ric Center during a high voltage shutdown in which electricity was shut to the site so that the electric service could be switched over to a new source. According to Micelotta, the men left the jobsite at the same time in the middle of the workday and quit their jobs. He identified those employees as Freddie Castellano, John Ehler, Ray Garcia, Ernie Graziano and Carl Leuz. Micelotta spoke with Castellano and Graziano who told him that they were directed by Local 3 to leave the jobsite at that time, and that if they did not do as ordered they would be blackballed or blacklisted and would not be able to work for a Local 3 represented company. Micelotta stated that their con- duct injured Expert’s reputation. Castellano and Graziano testified consistently concerning their leaving work at Expert. They stated that about 1 or 2 weeks before leaving Expert they attended a meeting with Lo- cal 3 agents at which they were told that when they were ready to leave Expert, Local 3 would help them find employment with a Local 3 contractor. They both completed their work shifts on their last day of work at Rikers Island and began work within the next day or two for a Local 3 employer. On his last day of work, Castellano told Frank Micelotta that he was leav- ing that day. He did not give any advance notice of his depar- ture. When Graziano told Frank Micelotta that he was giving 2 weeks’ notice, he was immediately discharged. Castellano and Graziano denied being told by Local 3 agents that they would be blackballed or blacklisted and further denied telling Expert’s officials that they had been threatened in that manner. It was stipulated that Garcia and Leuz worked a 7 hour shift, a full scheduled day’s work, on their last day of work on Rikers Island on November 4. It was also stipulated that Ehler’s last day of work was also on November 4, 1996, and that Local 3 found work for all three men on the next business day, Novem- ber 6. McElroen testified that, at the request of employees who are employed by a UECA employer, or non-UECA employer, he “removed” employees from their employer and assigned them to work for a contractor who has a contract with Local 3. He stated that Expert’s employees contacted him and sought to become members of Local 3. He stated that they asked him to “take them off the job.” He told them that if they gave him enough notice he would attempt to have a job for them. He called contractors who might be interested in hiring them. McElroen told the men that he would attempt to ensure that they remained employed for 1 year so that they would build up their funds in the event of a layoff. He denied telling any em- ployee that if they did not leave their employer they would not have an opportunity to work for a Local 3 contractor. Based upon the above, I cannot find that Local 3 threatened to blackball or blacklist Expert’s employees if they did not leave the Manhattan Psychiatric jobsite. Castellano and Graziano specifically denied being threatened by any Local 3 agent. Moreover, all the employees who, according to Mice- lotta, left the Manhattan Psychiatric jobsite in the middle of an electrical shutdown were in fact employed at that time at a dif- ferent jobsite on Rikers Island. In addition, all of them worked a full shift on their last day of work, further contradicting Mice- lotta. I accordingly find no credible evidence that Local 3 engaged in any improper conduct with respect to Expert’s employees’ quitting their employment. CONCLUSIONS OF LAW 1. The Respondents, United Electrical Contractors Associa- tion (UECA) a/k/a United Construction Contractors Associa- tion, and the employer-members of UECA, including Expert Electric, Inc., are employers within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 3, International Brotherhood of Electrical Workers, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Since February 23, 1993, Local Union No. 3, International Brotherhood of Electrical Workers, AFL–CIO has been, and is, the exclusive representative of the employees in the following appropriate collective-bargaining unit within the meaning of Section 9(a) of the Act: All electricians, electrical maintenance mechanics, helpers, apprentices and trainees employed in the electrical field em- ployed by employer-members of Respondent [United Electri- cal Contractors Association a/k/a United Construction Con- tractors Association], but excluding all office clerical employ- ees, guards and supervisors as defined in the Act. 4. By withdrawing recognition from Local 3 on June 11, 1998, and refusing thereafter to bargain with it as the represen- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 tative of the individual-employer members, UECA has violated Section 8(a)(1) and (5) of the Act. 5. By its untimely and improper withdrawal from the mul- tiemployer bargaining unit, and by its withdrawal of recogni- tion on April 21, 1998 from Local 3 as the collective- bargaining representative of its employees, Expert Electric has violated Section 8(a)(1) and (5) of the Act. 6. These unfair labor practices affect commerce within the meaning of Section 8(a)(1) and (5) of the Act. 7. Case No. 2–CA–22399 against the individual-employer members of UECA is dismissed in its entirety. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent UECA has withdrawn recog- nition from Local 3, it shall be ordered to bargain with it. Hav- ing found that Respondent Expert Electric has withdrawn from the multiemployer bargaining unit and has withdrawn recogni- tion from Local 3, it shall be ordered to request reinstatement to UECA as an individual-employer member and agree to repre- sentation by UECA in multiemployer bargaining conducted by UECA with Local 3. In this connection, UECA shall be ordered to reinstate Expert Electric as an individual-employer member of UECA. [Recommended Order omitted from publication.]