System Electric Co., Inc.

650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD System Electric Co., Inc. and International Brother- hood ' of Electrical Workers, Local, Union No. 440. Case 21-CA-21572 1 16 April 1987 DECISION AND ORDER BY CHAIRMAN DOTSON, AND MEMBERS BABSON AND STEPHENS_ On 12 September 1983 Administrative Law Judge Russell L. Stevens issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. 1. In the final paragraph of the discussion section of his decision, the judge concluded that the Re- spondent was not in the building and construction industry as that phrase is used in the Act. We re- verse. Paragraph 2(a) of the amended complaint al- leges, and the answer admits, "At all times material herein, Respondent, a California corporation, has been engaged in the business of electrical contract- ing in the construction industry . . . ." In addition, the complaint as amended at the hearing alleges, and the Respondent admits, that the appropriate unit comprises the Respondent's employees "en- gaged in electrical or electronic construction job work." Nothing in the record contradicts these ad- mitted allegations. Accordingly, we fmd that the Respondent is "an employer engaged primarily in the building and construction industry" within the meaning of Section 8(f) of the Act. 2. In John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), the Board overruled R.J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doctrine, and modified unit scope rules in 8(f) cases. As more fully set forth in Deklewa, supra at slip op. 8, the Board decided to apply the follow- ing principles in 8(f) cases. (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- 283 NLRB No. 99 ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. Applying Deklewa to the instant case, we con- clude that the complaint should be dismissed. In 1975 the Respondent signed a letter- of assent-A with the National Electrical Contractors Associa- tion, Southern Sierra Chapter, pursuant to which it became bound to the then-current collective-bar- gaining agreement. By letters dated 17 December 1981 the Respondent timely and properly terminat- ed the then-current bargaining agreement effective as of its 31 May 1982 expiration date and revoked NECA's authority to bargain on its behalf. No fur- ther agreement was reached by the Respondent with the Union. Although the Respondent admits it was bound to successive NECA agreements from 1975 through 31 May 1982, it contends and we find that any bargaining agreement between the Re- spondent and the Union expired as of 31 May 1982. Thus, under the fourth Deklewa principle quoted above, the Union enjoyed no presumption of ma- jority status, and the Respondent was free to repu- diate the 8(f) bargaining relationship. The judge concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by dealing directly with its employees and by failing to pay contractual wages and benefits and Section 8(a)(1) by telling job applicants that it would be a nonunion employ- er. As the judge's conclusions turn, however, on whether the Respondent owed bargaining or con- tractual obligations to the Union after 31 May 1982, which under Deklewa it did not, we shall re- verse the judge and dismiss the complaint. ORDER The complaint is dismissed. Gordan A. Letter, for the General Counsel. Steven D. Atkinson, Esq. (Atkinson, Andelson, Loya, Rudd & Romo), of Long Beach, California, for the Respond- ent. Jeffrey L. Cutler, Esq. (Davis, Frommer & Jesinger), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge. This case was tried in Indio, California, on June 16, 1983.1 The complaint2 is based on a charge filed September 10 1 All dates hereinafter are within 1982, unless stated otherwise 2 As amended March 2, 1983, and as again amended at trial with leave of the administrative law judge SYSTEM ELECTRIC CO. 651 by International Brotherhood of Electrical Workers, Local Union No. 440 (the Union). The complaint alleges that System Electric Co., Inc. (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered , were filed on behalf of the General Counsel and Respondent. On the entire record, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material Respondent, a California corpora- tion, has been engaged in the business of electrical con- tracting in the construction industry, and operates a facil- ity in Cathedral City, California. During the 12-month period following June 4, 1982, at which time Respondent activated its operations, Respondent, in the course and conduct of its operations, purchased and received goods and materials valued in excess of $50,000 from suppliers located within the State of California, each of which purchased and received the same goods and products di- rectly from suppliers located outside the State of Califor- nia. I find that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED International Brotherhood ' of Electrical Workers, Local Union No. 440 is, and' at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background4 Industrial Electric Supply is a California business wholly owned by John Gomes, who also has served as chief negotiator for National Electrical Contractors As- sociation, Southern Sierra Chapter (NECA). Approxi- mately in 1975 John Gomes organized Respondent and became its president. His son, James (Jim) Gomes, was Respondent's vice president until March 1982. On March 10, 1975, John Gomes signed the Union's form Letter of Assent-A, pursuant to which Respondent became bound by a collective-bargaining Inside Wireman's Agreement between NECA and the Union, effective June 1, 1973, until May 31, 1975, and thereafter until terminated in ac- cordance with the Letter of Assent-A. The agreement had, inter alia, an exclusive hiring hall provision that has remained the same in successive bargaining agreements between the parties, including the one involved herein, which was effective from June 1, 1981, through May 31, 1982. The bargaining agreements also had continuous 8 This background summary is based on stipulations of counsel, and on credited testimony and evidence that is not in dispute. provisions for health and welfare trust fund contributions by Respondent, with the requirement that Respondent submit monthly trust fund reports, whether or not any unit employees were on the payroll. Respondent was an inactive corporation until early in 1982. In December 1981 Michael Gomes, who was an- other son of John Gomes and who had been a field' su- pervisor of Industrial Electrical Supply for several years, decided with his family to activate Respondent. Soon after the first of the year Michael began organizing Re- spondent's affairs and preparing to go into operation, and he became president of Respondent in March. By letter dated December 17, 1981, Jim Gornes noti- fied the Union of Respondent's termination of its collec- tive-bargaining agreement effective May 31, 1982, when the then-current agreement expired, and also notified the Union that Respondent had revoked NECA's authority to bargain for it. Finally, Respondent offered to meet and bargain with the Union for a new contract on its own behalf. By letter dated December 17, Jini Gomes also notified the Association that Respondent had re- voked its authority to bargain with the Union on behalf of Respondent. By letter dated March 2, Gilbert Dovey, the Union's business manager, advised Respondent (Jim Gomes) of the Union's intention to terminate the agreement expiring May 31 and offered to meet and bargain for a new con- tract. On March 12, R. Reincke, a labor consultant for Mike Sullivan and Associates, Inc. (Sullivan), replied to Dovey's letter, stated that Sullivan was Respondent's ex- clusive collective-bargaining agent, reaffirmed Respond- ent's withdrawal from NECA, and offered to meet and bargain with 'the Union, on behalf of Respondent, at a mutually agreeable date. The letter shows a carbon copy to Respondent. On March 17 Sullivan again wrote to the Union (Dovey), and also to Local 569, reiterated that Sullivan was Respondent's exclusive bargaining, representative, and made a second request to meet and negotiate. The lettter shows a carbor copy to Respondent. On May 26 Leland Brand, the Union"s business agent who replaced Dovey, wrote a letter to Respondent (Jim Gomes), stated that the Union had received Sullivan's letter of March 12, questioned Sullivan's representative status, asked confirmation of that status, and offered to meet and bargain on June 1, 3, or 4. On May 27 Sullivan replied to the Union's letter of May 26 to Respondent, reiterated its status as Respond- ent's exclusive collective-bargaining representative, ques- tioned the Union's fides in continuing to refuse to recog- nize Sullivan's status, advised- the Union that Michael, rather than James, was Respondent's principal officer, and' asked for a reply to Sullivan's letter of March 17. The letter shows a carbon copy to Respondent. On June 11 Reincke 'wrote a letter to the Union (Brand), enclosed a letter from Michael advising that Sullivan was Respondent's exclusive bargaining repre- sentative, and offered to meet and bargain with the Union immediately on reply from the Union. The letter shows a carbon copy to Respondent. 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On June 14 Jim Gomes replied to the Union's letter of May 26, and reiterated that he no longer worked for, or represented, Respondent. ' Between March 10, 1975, and June 4, 1982, Respond- ent submitted monthly trust fund reports to the Union, as required by the various collective-bargaining agreements. As of approximately June 4 those reports were discontin- ued, `and since that date Respondent has not made any trust fund payments or reports, and has paid wages to employees that ' are lower than the Union 's contract wages. Andrew Amento was- initiated into the Union on No- vember 30, 1979, approximately at the time he was em- ployed by Industrial Electric Supply . When he became a union member he was assigned the- rating of wireman p.e. (pending examination). He kept that same classifica- tion all the time '-he was a union member. In April or May Michael called Amento, whom he had known for some time, on the telephone and asked if he would be interested in working for a new company Michael was starting. Amento had been working for a nonunion com- pany,4 and asked Michael about the new company's rela- tionship with the Union. Amento said he assumed the new company would be nonunion, and Michael stated that it would not be affiliated with the Union. They agreed to meet later, and approximately 2 weeks after the telephone call Amento went to Respondent's shop to talk with Michael . They walked around in the shop, and Michael reiterated that the shop would not be signatory to a union contract-that it would be "a merit or open shop." Amento -expressed his dislike of the Union, and made it clear to Michael that he did not want to work under a union contract . Amento said he had not signed the Union's out-of-work book, and had not paid his dues for some time. Michael and Amento talked about the Tat- ter's pay, which was to be a little more than $18 per hour. Michael said some fringe benefits later may be ar- ranged, but there would be no pension arrangement. Amento went to work for Respondent a few days later at $19 per hour, which was less than the Union's con- tract rate, and has worked for Respondent continuously to date. Amento has had an unsatisfactory relationship with the Union, although he paid his membership dues through January 1-982,5 when he was laid off by the con- tractor he then was working for. He did not go to the union hall or attempt to work through the Union thereaf- ter. On one occasion in 1978 Amento argued with Brand about hiring hall procedures and on another occasion he was given a verbal reprimand because he worked on a job, with nonunion employees . Brand credibly testified that members are suspended after failure to pay dues 3 months, and are dropped from membership after failure to pay dues 6 months. On May 12 , 1982, Brand advised Amento by letter of his 3-month dues delinquency, and requested payment of $182.28 for dues and reinstatement from suspension. By letter dated July 14, 1982, Brand no- tified _ Amento that he would be tried by the Union on 4 This work was not for Industrial Electric Supply, which is a union company. 5 This date of January 1982 is from the testimony of Amento , corrobo- rated by Brand July 28, 1982, on the charge of working for Respondent without going through -the union hiring ` hall. "By letter dated August 25; 1982, Brand advised Amento that, in Amento's absence at trial , he had been fined $3000, with $2000 suspended. Amento never paid the fine. By letter dated August 17, 1982,- Brand notified Amento that he had been dropped from the union membership . During his employment by Respondent , Amento kept Micheal Gomes well-advised concerning his problems-with the Union, gave Michael the letters he received from the Union, and frequently expressed to Michael his dislike of the Union. Robert Hudson formerly worked for Industrial Elec- tric Supply. Sometime prior to June 1982 Hudson called Michael on the telephone and asked about the possibility of working for Respondent. An interview was arranged and held, and during either the telephone call or the interview Hudson asked if Respondent would be " operat- ing as a union ; shop and Michael said it would not. Hudson was working for a nonunion contractor at the time he talked, with Michael . No job opening was avail- able at the time, 'but Hudson was hired soon thereafter, as a wireman at $14 per hour. He still is employed by Respondent. Hudson became a union member February 25, 1980, and was a union member at,the time he was hired by Respondent. Hudson also had a strained rela- tionship with the Union, although he paid his union dues through February 1982. The dues paid for December, January, and February of 1981-1982 were-in amounts that show a nonwork status, rather than a -work status. Hudson talked with Michael Gomes about the Union on several occasions, and expressed his dislike for the Union. By letter dated September 8, 1982 , Brand in- formed Hudson that he had been dropped from union membership because of failure to pay his union dues. Michael Jones became a union member October 28, 1977, and worked for Respondent 15 hours during June 1982, at an hourly wage of $14. Counsel stipulated that Respondent had no employees between its inception and June 4, 1982, who were cov- ered by the Union-NECA agreement. During the bal- ance of June 1982 Respondent had two full-time employ- ees, Amento, and Hudson, and Jones worked a short time. Amento and Hudson continued thereafter as full- time employees, occasionally assisted , by helpers. Sometime in June Brand learned that Respondent had employed two persons, but that such fact had not been reported to the Union. Brand notified the Union's trust office of the apparent , problem, and sent a union agent, Tom Brady, to Respondent's shop to investigate. Brady later reported to Brand that the two employees , Amento and Hudson, told him , the Union was not giving them work and that they had to work some place ,- so they went to work for Respondent . Brady credibly testified without contradiction that his visit , to Respondent's job- site to talk with the employees was on July 6. On July 16 the Union filed an NLRB charge against Respondent, alleging that Respondent had violated Sec- tion 8(a)(5) and (1) of the Act. On July 22 Respondent filed an 8(b)(1)(B) charge against the Union. Both charges were withdrawn August '26. In July, Amento SYSTEM ELECTRIC CO. called Brand on the telephone to complain about his name being on the Union's'NLRB charge. By letter dated August 26, 1982, Brand advised Sulli- van that he was willing to,meet with him concerning Re- spondent on September I or 2 . Reincke called Brand on the telephone, and September 1 was agreed on as the date to meet. On August 31 Respondent filed an RM petition with the Board, which later was dismissed on January 5 by the Regional Director of Region 21, on the basis of the Union's disclaimer on January 3 of interest in represent- ing Respondent's employees. The parties met as scheduled at the Union's office on September 1. Sullivan and Reincke attended for Re- spondent, and the Union was represented by Brand and Marvin Cook, the Union's International representative. The meeting lasted approximately 1 hour, and neither side presented contract ` proposals. A principal topic of discussion was the status of Amento and Hudson and the Union's representation of them. Sullivan asked for the Union's proof of representation because he doubted it, and the Union contended that it did, in fact, represent the two employees. The Union pointed out that Amento and Hudson were members of the Union at that time. A few other matters briefly were discussed , including a "fa- vored nations" provision in some contracts, possible ne- gotiation of an 8(f) contract, Brand's possibly meeting later with Amento and Hudson, ratification of the con- tract by Respondent's employees, and, guidelines for future negotiations. The parties have not met or negotiated since Septem- ber 1. B. Discussion Several salient facts are not in dispute, or clearly are established by the report. -(1) Respondent timely and properly notified NECA and the Union of. Respondent's intention to withdraw NECA's bargaining authority for Respondent, and of Respondent's proposed termination of its contract with the Union effective May 31. (2) Amento and Hudson were hired in June, after the collec- tive-bargaining agreement's termination date, without going through Respondent's hiring hall and at a wage rate lower than that provided by the terminated agree- ment. (3) Since approximately June 4, Respondent has submitted no reports to the Union's trust fund, and has not made any payments to union trust funds required by the terminated agreement. (4) Amento and Hudson were union members as of the date of their hire by Respond- ent. They were delinquent in payment of union dues as of that time, but they lead not 'been dropped from union membership. (5) Amento, and Hudson kept Michael abreast of their runningfeud with the Union, and freely discussed their dislike of the Union with Michael and fellow employees. (6) Prior to the date Amento was hired, Michael already had decided, in late April, that he was not going to be signatory to a contract with the Union. That fact was testified to by Michael. On December 17, 1981, Respondent notified the Union of its willingness to bargain, on request, for a new con- tract. The Union took no affirmative action relative to Respondent's offer, but on March 2 told Respondent it 653 was "ready to meet" at any mutually agreed time. On March 12, Reincke answered the Union"s letter of March 2, but the Union refused to recognize Sullivan as Re- spondent's representative. Not until May 26 did Brand ask Respondent for confirmation of Sullivan's status, and that request, was in Brand's letter to James Gomes. Brand offered conflicting statements at trial for his refusal to deal with Sullivan, none of which had the ring, of truth. It would have been a simple matter for Brand to have questioned Sullivan's status, by telephone call or letter, either to Sullivan or Respondent or both, much earlier than May 26.6 In any event, it is clear that the Union did not, or would not, until late May or early June, deal with Sullivan. However, that fact does not reach any of the basic issues. The General Counsel avers that, by signing the Letter of Assent-A, Respondent became a member of a multi- employer bargaining group, but that matter is not in issue. Respondent acknowledges that fact, and Respond- ent timely withdrew from the multiemployer group. The withdrawal from the Letter of Assent-A was nnade De- cember 17, 1981, with the existing contract to be termi- nated on its expiration date, May 31, 1982. A basic question is whether the presumption of the Union's majority arising from Respondent's signing the Letter of Assent-A, i.e., its participation in the multiem- ployer bargaining group, survives Respondent's timely withdrawal on December 17, 1981, from the multiem- ployer group prior to expiration of the union-NECA contract on May 31, 1982.7 Existence of the original pre- sumption is not in dispute. So far as the lost-10(b) period is concerned, it is fundamental that a contract, lawful on its face, raises a presumption that the union party to the contract was the majority representative of the employ- ees at the time the contract was executed, as well as during the life of the contract, and thereafter." The Gen- eral Counsel argues that the presumption is irrebuttable, and cites Cauthorne Trucking9 as authority for that prop- osition. Cauthorne Trucking did not' involve a multiem- plolyer unit, however-only' a single employer was in- volved, and the principle relied on by the General Coun- sel was set forth in footnote 3: Rish Equipment Co., 173 NLRB 943 (1968), enfd. 407 F.2d 1098 (4th Cir. 1969). A collective-bargain- ing agreement, lawful on its face, raises an irrebutta- ble presumption that the union's majority status continued through the end of the contract. This presumption continues beyond the expiration of the contract, but becomes rebuttable. Of course, the 6 In his letter of March 17 addressed to the Union, Remcke referred to a letter of February 8, which, he said, advised the Union of Sullivan's representative status with Respondent, but that letter of February 8 is not in evidence. 7 Respondent does not, and legally could not, now challenge the Union's multiemployer majority as of the time the Letter of Assent-A first was signed on March 10, 1975, in view of Sec. 10(b) of the Act. Bryan Mfg. Co., 362 U.S. 411 (1960). 8 See, e g., Nevada Lodge, 227 NLRB 368 (al976); Shamrock Dairy, 119 NLRB 998 (1957), and 124 NLRB 494 (1959),enrd. 280 F 2d 665 (D.C. Cir. 1960), cert. denied 364 U.S. 892 (1960). 9 Cauthorne Trucking, 256 NLRB 721 (1981), modified 691 F.2d 1023 (D.C. Cir. 1982). 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD burden of rebutting this presumption is upon the party that would do so. Eastern Washington Distrib- uting Co., Inc., 216 NLRB 1149 (1975). Rish Equipment Co., relied on in Cauthorne Trucking, is not proper authority for the footnote reference, howev- er, because Rish arose from an RC case and involved re- fusal by an employer to bargain with a Board-certified union. In Rish, the administrative law judge stated, page 944: "[T]he continued majority status of the certified union is presumed, but an employer may rebut the pre- sumption by an affirmative showing that the union no longer commands a majority." It is clear from Nevada Lodge, supra, which followed Tahoe Nugget,' ° that the presumption relied on by the General Counsel is rebutta- ble. In both Tahoe Nugget and Nevada Lodge, the evi- dence relating to the Union's majority that allegedly con- tinued after timely withdrawal from a multiemployer bargaining group and until the contract expired was carefully examined and found to be an actual majority. In this case, it is quite clear that, at no time prior to expi- ration of the multiemployer agreement on May 31, 1982, did Respondent have any employees. As noted supra, counsel stipulated that Respondent had no employees be- tween Respondent's birth and June 4, 1982, who were covered by the union-NECA contract. Therefore, the Union did not enjoy majority status in any employee complement of Respondent prior to June 4, 1982. How- ever, that fact is not the end of the controversy. Assuming the Union's lack of majority status at Re- spondent's plant at all times prior to May 31, 1982, the union-NECA contract was effective until that date, and Amento and Hudson were union members until, and beyond, that date, albeit both of them were not conduct- ing themselves as loyal union members and were en- gaged in running controversies with the Union. Even if, arguendo, Respondent was not required to negotiate with the Union as the representative of its employees for a new contract to succeed the one that would expire May 31, 1982, such a fact would not release Respondent from the union-NECA contract, and its requirements, prior to that date. So much apparently was recognized by Jim Gomes, who advised the Union on December 17, 1981, that the existing union-NECA contract would be terminated so far as Respondent was concerned, effective May 31, 1982. Further, Respondent continued until June 4, 1982, to submit monthly employee reports to the Union's trust fund, as required by the union-NECA con- tract. It is found that Respondent was bound to the union-NECA contract, and all its provisions, until May 31, 1982, regardless of any questions relating to Respond- ent's obligation to bargain with the Union thereafter, as the representative of Respondent's employees. By direct- ly negotiating with Amento and Hudson concerning their work conditions, within the term of the union- NECA contract and without notice to, or bargaining with, the Union, Respondent violated Section 8(a)(5) and (1) of the Act, as alleged in the complaint. '11 10 Tahoe Nugget, Inc., 227 NLRB 357 (1976). 11 Creative Engineering, 228 NLRB 582 (1977). As noted in the background summary above, Michael Gomes made it clear to Amento and Hudson when he talked with them in May prior to their employment that he would be operating Respondent as a nonunion plant. As previously noted, Amento and Hudson were union members at that time, regardless of their poor relation- ship with the Union. They did not resign from their membership, as they could have, but rather, sometime after their employment by Respondent, they let their membership be terminated by the Union through failure to pay union dues. Also at the time of the statements to Amento and Hudson in May, Respondent still was a party to, and bound by, the union-NECA contract. Fi- nally, about the same time as the statements by Michael, the latter freely discussed with Amento and Hudson their various problems with the Union. Admittedly, Mi- chael did not want a union shop, so informed Amento and Hudson, and actively participated in widening the rift between the Union and its two members. Under such circumstances, Michael's statements to Amento and Hudson about his intention to have a nonunion shop were coercive and in violation of Section -8(a)(1) of the Act, as alleged in the complaint. 112 A basic issue is whether Respondent had a good-faith boubt, based on reasonable and objective considerations, that the Union represented a majority of Respondent's employees after May 31, 1982. As discussed above, it is apparent that Amento and Hudson disliked the Union, stopped paying their union dues, and conveyed those facts to Michael Gomes. However, that does not deter- mine any conclusion. In the first place, prior to May 31 Respondent already had committed two violations of the Act, found above. Michael made it plain to Amento and Hudson that he planned to operate without a union con- tract, and he negotiated direcly with those two potential employees, without regard to his contractual- obligations to the Union. Those facts alone take Respondent outside the usual parameters of the good faith required in raising a doubt about the Union's majority.13 But more is in- volved. Regardless of the fact that Amento and Hudson on several occasions made it clear to Michael that they disliked the Union, they did not resign their member- ships. Rather, they just let them die a natural death, sometime after their employment by, Respondent. Brady visited Amento and Hudson July 6, and sometime there- after, according to Brand's testimony, credited on this matter, Brand decided that Amento and Hudson did not want to be represented by the Union. Later, on January 3, 1983, the Union formally filed a disclaimer of interest in representing the two employees. In view of Respond- ent's earlier violations of the Act, and in view of Mi- chael's determination to go nonunion and his frequent talks with Amento and Hudson about their sentiments, there is no possibility of determining whether the two 12 Continental Inn, 186 NLRB 248 (1970), enf. in relevant part 453 F 2d 269 (6th Cir. 1971). Amento and Hudson were applicants for em- ployment at the time the statements 'were-made by Michael They were, therefore, covered by the Act at that time. See, e.g., Daily Transit Mix Corp., 238 NLRB 879 (1978). 13 Harvey's Resort Hotel, 236 NLRB 1670 (1978); Acme Markets, 232 NLRB 219 (1977). SYSTEM ELECTRIC CO. employees would have wanted union representatives in the absence of those facts.. Respondent meddled in the relationship between the Union and the two employees, and cannot now claim any benefits that may flow from the meddling. When the two employees were hired they were union members, and that fact prima facie gave the union majority status.,,That showing is buttressed by the presumption flowing from the union-NECA contract that was terminated effective May 31. The Act requires that, on expiration of a contract, an employer must retain the same wages and working conditions that prevailed under the contract-, and if changes detrimental to em- ployees are made without giving ' the employees' repre- sentative prior notice and an opportunity to bargain about the changes, such action would, constitute a viola- tion of Section 8(a)(5) and (1) of the Act.14 The Union was the representative of Respondent's employees at the time Respondent ceased paying hourly wage rates and fringe benefits prevailing under the terminated contract, and thereafter continued such reduced wages and bene- fits. Such changes constitute a violation of Section 8(a)(5) and (1) of the Adt as' alleged in the complaint.15 Respondent argues that it was in the building and con- struction industry and offered to bargain with the Union for an 8(f) contract. That argument is without merit be- cause it was not shown that Respondent was in the building and construction industry, as that phrase is used in the Act. Such a showing was Respondent's burden, and the burden was not met. Respondent also argues that the changes in'wages and working conditions were per- missible because the parties had reached a bargaining im- passe, but that argument also is without merit. Respond= ent had submitted no proposals to the Union, on which an impasse could be reached. Respondent's effort to es- tablish that the union was intractable in its insistence that all area employers sign the Union-NECA contract was not persuasive. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the, meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3, The following employees constitute a unit appropri- ate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent engaged in electrical or electronic construction job 'work, con- sisting of the handling and moving of all electrical or electronic material, equipment, apparatus and ap- pliances, the installation of all electrical or electron- ic construction and/or erection work including the installation and connecting of motors or generators, of all fixtures, or area light diffusing systems, appli- ances, and electrical maintenance thereon, and of all 14 NLRB v. Katz, 369 U.S. 736 (1962); Cauthorne Trucking,' supra. 15 Stone Boat Yard, 264 NLRB 981 (1982);' Dial Tuxedo. Inc., 250 NLRB 476 (1980); Creative Engineering, supra 655 electronic equipment, electronic systems, communi- cation systems with all related control wiring and devices, to and including the final running test, and any related instrumentation work or radiation moni- toring, the welding, burning, brazing, bending, drill- ing and shaping of all copper, channel iron, angle iron, I beams, and brackets to be used in connection with the -installation and erection of electrical wiring or equipment, the chasing and channeling necessary to any electrical or electronic work, the installation and maintenance of all temporary wiring and of all electrical lighting, heating and power equipment, the operating of power equipment used for the installation of electrical or electronic work, 'the cutting, threading and bending of all conduit by hand or machine, the sound backgrond work, re- gardless of voltage, electronic and high frequency equipment installation, and maintenance, the iinstalla- tion assembly, trouble-shooting and final checkout including outside and inside construction of closed circuit television, intercommunication, audio back- ground music for private, commercial or industrial use, for all electrical apparatus'by means Of which electricity is applied to amplification transmission, transference, production recording, or reproduction of voice, music and sound, and work on Nurse Call, Fire Alarm, Synchronized Clock and other similar control, signaling and, indicating systems; excluding all office employees, guards, and supervisors as de- fined in the Act. 4. Respondent violated Section 8(a)(1) of the Act by telling job applicants that Respondent would be 'a'non- union employer, at a time'when Respondent's employees were- represented-by the Union. 5. Respondent violated Section 8(a)(5) and (1) of the Act by bypassing the- Union and dealing directly with its employees concerning wages and other terms and condi- tions of employment; and by failing and refusing until January 3,,,1983, to pay hourly, wage rates and fringe benefit contributions for its employees as required by-the union-NECA contract in effect between the parties. THE REMEDY Having found that Respondent has engaged in, certain unfair labor practices, it will The recommended that Re- spondent be ordered to cease and desist therefrom, and take certain affirmative action, designed to effectuate the policies of the Act. It will be recommended that Respondent make! whole employees for their losses in - wages and fringe benefit contributions from June 4, 1982, until January 3, 1983, at which time the Union disclaimed further interest in rep- resenting Respondent's employees, as noted supra, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter- est as set forth in, Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651(1977). [Recommended Order omitted from publication.]