B.F.C. Corp.

B F C CORP 583 B.F.C. Corp. and International Brotherhood of Elec- trical Workers, Local 59, AFL-CIO. Case 16- CA-8122 31 August 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 10 March 1980 Administrative Law Judge Robert A. Gritta issued the attached decision. The Charging Party filed exceptions and a supporting brief, the Respondent and the General Counsel each filed cross-exceptions and supporting briefs, and the Charging Party filed an answering 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 briefs and has decided, to affirm the judge's rulings, findings, i and conclusions as modified, and to adopt the recom- mended Order as modified The facts are set out more fully in the judge's decision. Briefly, the judge found that in October 1975, the Respondent, an electrical contractor, signed a letter of assent-A with the Union which expressly authorized NECA to represent it as its collective-bargaining agent with Local 59 with regard to the then-current inside agreement be- tween NECA and the Union. Such authorization continued in effect unless terminated by the Re- spondent at least 150 days prior to the contract's then-current anniversary date. The effective dates of the agreement were 1 June 1975 through 31 May 1977. On 30 May 1977 the Respondent exe- cuted a subsequent letter of assent-A respecting the newly negotiated contract bearing the effective dates of 1 June 1977 to 31 May 1977. Just prior to that contract's effective date the Union and NECA negotiated and executed a memorandum of agree- ment, dated 27 May 1977 and effective 1 June i The judge found that the Respondent was engaged in commerce within the meaning of the Act, both as an individual employer and as a member of NECA In agreeing with the judge's conclusion that jurisdic- tion is properly asserted over the Respondent, we find it unnecessary to pass on the judge's alternative jurisdictional finding based on the Re- spondent's NECA membership Additionally, in concluding that jurisdic- tion is properly asserted, we note that the General Counsel introduced into the record evidence of indirect inflow sufficient to establish jurisdic- tion over the Respondent individually and that this evidence was not controverted by the Respondent Moreover, we further rely on the par- ties' posthearing stipulation concerning commerce which , in light of the evidence noted above, was merely cumulative In this regard, we find that the judge did not abuse his discretion by reopening the record and thereafter accepting the parses' stipulation Cf Sparkie's Special Delivery, 247 NLRB 623 (1980) Accordingly, we find it unnecessary to pass on the Respondent's still-pending motion to the judge of 5 July 1979 con- cerning his order reopening the hearing as that motion , in light of the above, is now moot 1977. The purport of the memorandum was, inter alia, to allow signatory employers to pay employ- ees less than union scale on certain jobs to become competitive with nonunion shops. All fringe bene- fits payable to the Union relative to memorandum controlled jobsites were paid pursuant to the inside agreement's terms Until the memorandum was exe- cuted, the Respondent paid union scale. After the memorandum, however, the Respondent accepted only jobs covered by the memorandum and allow- ing less than union scale. From October through August 1978, the Respondent paid all fringe bene- fits required by the current inside agreement nego- tiated by NECA and the Union. Beginning Septem- ber 1978, fringe benefit payments were not made by the Respondent. During the summer of 1978, the Respondent had two jobs in progress under a single construction contract. That contract was governed by the memorandum . The Respondent employed four em- ployees at these jobsites: Charles Evans, Terry Cunningham, Larry Buck, and Terry Fagala. On 20 September 1978 Andrew Brockelman, the Re- spondent's president, sought out Evans to give him a message for the crew. Brockelman told Evans that "under the circumstances" he could no longer work under the union contract. Brockelman stated to Evans that he and the other men could either stay with the Company or get off early to go to the hall. Evans gave Brockelman's message to the other employees. All four of them went to the union hall rather than continuing to work for Brockelman. Each stated that the reason for his action was to save his union membership and job benefits as each knew that he could lose his mem- bership job-related benefits if he worked for a non- union contractor. On 2 November 1978 Brockelman sent a letter to NECA terminating the letter of assent by B.F C. Corp. The letter, by its terms, withdrew any au- thorization to NECA to act as bargaining agent for Brockelman or B.F.C. Corp. The Union did not re- ceive a copy of this letter. NECA, however, did inform the Union of receipt of the revocation. The judge concluded that the Union was the ex- clusive representative under Section 9(a) of all the employees in a unit consisting of "all apprentice electricians and journeymen electricians employed by B.F.C. Corp., or employer-members of NECA and/or employers who authorize NECA to repre- sent them in collective bargaining within the juris- diction of the Union, exclusive of all other employ- ees, guards and supervisors as defined in the Act." The judge further found that the Respondent vio- lated Section 8(a)(5) of the Act on 20 September 1978 by unilaterally changing terms and conditions 285 NLRB No. 73 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of employment of its unit employees and modifying the 1977-1979 collective-bargaining agreement by unilaterally repudiating the 1977-1979 collective- bargaining agreement, by attempting to withdraw from the multiemployer association without notifi- cation to the Union at a time when such withdraw- al was not effective, and by unilaterally terminating payments required under the contract to various union funds. Further, the judge found that the Re- spondent violated Section 8(a)(3) and (1) of the Act when it constructively discharged employees Evans, Buck, Cunningham, and Fagala and failed to reinstate them. Lastly, the judge found that the Respondent's termination notice of 2 November 1978 timely revoked the prior delegation of bar- gaining authority to NECA and was effective as of the expiration of the inside agreement on 31 May 1979, thereby relieving the Respondent of any bar- gaining obligation to the Union that may have been incurred by NECA thereafter on behalf of member-employers. In John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), the Board overruled R. J. Smith Construc- tion 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 conver- sion doctrine, and modified unit scope rules in 8(f) cases. As set forth more fully in Deklewa, supra, 1377-1378, 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- 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. The Board also noted, at footnote 41 of Deklewa, that it will require the party asserting the existence of a 9(a) relationship to prove it. Under Deklewa, we find that the General Coun- sel, while asserting that the Respondent is bound to recognize the Union under Section 9(a), has failed to establish that the relationship between the Re- spondent and the Union is anything other than a relationship governed by Section 8(f) of the Act. The evidence shows that the Respondent is en- gaged in the construction industry. The record, however, fails to demonstrate that a 9(a) relation- ship was ever' established between the Respondent and the Union. Thus, we find that the relationship between' the -Respondent and the Union is gov- erned by Section 8(f) of the Act.2 Consistent with Deklewa, however, we agree with the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) of the Act when, in September 1978, during the term of the 1977-1979, collective-bargaining agreement, it ceased making contractually required contributions to the union trust funds on behalf of its unit employees, unilater- ally changed terms and conditions of employment of its unit employees, and repudiated its collective- bargaining agreement with the Union.3 We also agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by constructively discharging employees Evans, Buck, Cunningham, and Fagala. John Costa Painting Co., 277 NLRB 926 (1985). In his recommended remedy for the constructive discharges, the judge provided, inter alia, fqr back- pay to terminate no later than the complon of work at the jobsites involved here.4 Further, in view of his finding that the Respondent was only obligated to the Union for the term of the 1977- 1979 collective-bargaining agreement, the judge failed to include a reinstatement remedy as part of his proposed order. In our recent decision in Dean General Contractors, 285 NLRB 575, issued this date, however, we determined that in the construc- tion industry the traditional make-whole remedy of reinstatement and backpay is appropriate, with the understanding that any issues concerning the dura- tion of the remedy, including whether employees would be transferred or reassigned to other job- sites, could be litigated at the compliance stage of the proceeding. We shall amend the order accord- ingly. 2 In view of this finding, we further find that the appropriate unit is that limited to the Respondent's employees. Accordingly, we do not rely on the judge's unit findings to the extent that they exceed the single em- ployer unit 3 Inasmuch as we agree with the judge that the Respondent's letter of 2 November 1978 revoking NECA's bargaining authority was timely and effective as of the expiration of the inside agreement on 31 May 1979, we find it unnecessary to pass on the consequences of an "untimely" revoca- tion Additionally, we find it unnecessary to pass on the judge's conclu- sion that, in effect, the Respondent's repudiation of the contract constitut- ed an untimely and ineffective withdrawal from the multiemployer asso- ciation since this conclusion of the judge , in light of our other findings, is merely cumulative 4 We agree with the judge that because, under the terms of the memo- randum of agreement, all jobs started under the memorandum will be fin- ished under its terms without regard to the termination date of the con- trolling inside bargaining agreement, backpay due the discriminatees for work performed on the projects in existence at the time of the construc- tive discharges should be determined under the agreement controlling at the time of their constructive, discharges without regard to its termination date B F C CORP 585 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. All apprentice electricians and journeymen electricians employed by B.F.C Corp, excluding all other employees, guards, and supervisors as de- fined in the Act, constitute an appropriate unit of the Respondent's employees for the purpose of col- lective bargaining under the Act. 4. By unilaterally changing, on 20 September 1978, wages, hours, and working conditions of its employees in the unit described above without no- tifying the Union of its intention to do so or afford- ing the Union an opportunity to bargain on the subject, and by modifying the agreement effective 1 June 1977 to 31 May 1979, the Respondent re- fused to bargain collectively with the Union as the representative of its employees in the unit de- scribed above and thereby violated Section 8(a)(5) and (1) of the Act. 5. By unilaterally rejecting, on 20 September 1978, the collective-bargaining agreement effective 1 June 1977 to 31 May 1979, the Respondent re- fused to bargain collectively with the Union as the representative of its employees in the unit de- scribed above and thereby violated Section 8(a)(5) and (1) of the Act. 6 By unilaterally terminating , on 20 September 1978, payments to the national electrical benefit fund, the electrical training fund, the welfare fund, the annuity fund , and the vacation fund and other terms and conditions of employment set forth in the bargaining agreement effective 1 June 1977 to 31 May 1979, the Respondent refused to bargain with the Union as the exclusive representative of its employees in the unit described above and thereby violated Section 8(a)(5) and (1) of the Act.5 7. On 20 September 1978 the Respondent did constructively discharge employees Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala and has failed to reinstate these employees to their former or substantially equivalent positions because they refused to accept unilaterally changed wages and working conditions , other than those re- quired by the collective-bargaining agreement ef- 5 The parties ' 1977-1979 collective -bargaining agreement also provided for employer contributions to an industry fund inasmuch as industry ad- vancement funds are permissive , nonmandatory subjects of bargaining, it is not an unfair labor practice for an employer unilaterally to discontinue its contributions to such a fund See FMS Supply, 258 NLRB 604 fn 3 (1981), Finger Lales Plumbing Co, 254 NLRB 1399 (1981) Accordingly, we shall not require the Respondent to make contributions to that fund fective 1 June 1977 to 31 May 1979, thereby violat- ing Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondent's termination notice of 2 No- vember 1978 is timely to revoke the prior delega- tion of bargaining authority to NECA and is effec- tive with the expiration of the inside agreement on 31 May 1979, thereby relieving the Respondent of any bargaining obligation to the Union which may be incurred by NECA thereafter on behalf of member-employers. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, B.F.C. Corp., Sher- man, Texas , its officers , agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to give full effect to and complying with the collective-bargaining agree- ment between NECA and Local Union No. 59 dated 1 June 1977 to 31 May 1979 during its terms. (b) Unilaterally changing the terms and condi- tions of employment of the employees in the appro- priate unit during the term of a valid collective- bargaining agreement without prior consultation with Local Union No. 59 as the exclusive collec- tive-bargaining representative of these employees. (c) Unlawfully terminating employees or other- wise unlawfully discriminating in regard to em- ployees' wages, terms, and conditions of employ- ment. (d) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) For the term of the 1977-1979 collective-bar- gaining agreement restore and place in effect all terms and conditions of employment as provided in the agreement which were unilaterally changed and abandoned by the Respondent. (b) Make such national electrical benefit fund, electrical training fund , welfare fund , annuity fund, and vacation fund payments on behalf of those em- ployees in the above unit for whom contributions were not previously made that would have contin- ued to be made had the Respondent not unlawfully abandoned the above collective-bargaining agree- 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment6 and reimburse those employees for expenses incurred by them due to the failure to make such contributions in accord with Kraft Plumbing, 252 NLRB 891 (1980). (c) Make whole Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala for any loss of wages or other benefits suffered by reason of Respondent's unlawful conduct. (d) Offer Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala immediate and full reinstatement to their former jobs. or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously' enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them in the manner set forth in the remedy section of the decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its facility in Sherman, Texas, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide for the addition of a fixed rate of interest on unlawfully withheld fund payments at the adjudicatory stage of a proceeding . We leave to the compliance stage the question whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy Depending on the circumstances of each case , these additional amounts may be determined by reference to provisions in the documents governing the funds at issue and, when there are no governing provisions, by evidence of any losses directly attributable to the unlawful withholding, which might include the loss of return on investment of the portion of funds withheld, addi- tional administrative costs, etc, but no collateral losses Merryweather Op- tical Co., 240 NLRB 1213 fn 7 (1979) T 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail or refuse to give effect to and comply fully with the terms of the bargaining agreement with National Electrical Contractors Association, Northwest Texas Chapter and Local Union No. 59, International Brotherhood of Elec- trical Workers, dated 1 June 1977 to 31 May 1979, with respect to the employees in an appropriate unit represented by the Local Union No. 59, Inter- national Brotherhood of Electrical Workers, during the term of the agreement entered into with the Union, pursuant to Section 8(f) of the Act. The ap- propriate unit was: All apprentice electricians and journeymen electricians employed by B.F.C. Corp., exclud- ing all other employees, guards and supervi- sors as defined in the Act. WE WILL NOT unilaterally change terms and conditions of employment of employees in the above unit during the term of a valid collective- bargaining agreement without prior notice to and consultation with the Union. WE WILL NOT unlawfully discharge you or oth- erwise discriminate against you because you are members of the Union or obligated to become members of the Union, or because you want to remain members of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make all payments required by the above bargaining agreement for the national elec- trical benefit fund, the welfare fund, the annuity fund, the electrical training fund, and the vacation fund on behalf of all employees in the unit for whom we previously made such contributions, which contributions would have continued had we complied with the above bargaining agreement during its terms and WE WILL reimburse the unit employees for any expenses incurred due to our failure to make such contributions, plus interest. WE WILL offer Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- B F C CORP 587 lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed as a result of their discharges. WE WILL make whole, with interest, Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala for any loss of wages or other bene- fits they may have suffered as a result of our dis- crimination against them. B.F.C. CORP. Michael P. Alden, Esq. and Martha Kinard, Esq., for the General Counsel. David Watkins, Esq. (Jenkins & Watkins, Inc.), of Dallas, Texas, for the Respondent. David Richards, Esq, of Austin, Texas, for the Charging Party DECISION ness stand, and on substantive, reliable evidence consid- ered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that B.F.C Corp. is a Texas corporation engaged in the building and construction industry as an electrical con- tractor with offices in Sherman , Texas. The parties stipu- lated that Respondent in the material 12 -month period, in the course and conduct of its business operations, pur- chased goods and materials valued in excess of $50,000 from suppliers within the State of Texas, who in turn purchased said good directly from points located outside the State of Texas. I conclude and find that Respondent, B.F C Corp is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. This case was heard on February 5 and 6, 1979, in Fort Worth, Texas, based on charges filed by the Internation- al Brotherhood of Electrical Workers, Local 59, AFL- CIO (Local 59) on October 4 and 27 and November 13, 1978, and a complaint issued by the Acting Regional Di- rector for Region 16 on November 17, 1978. Respond- ent's timely answer denied virtually all material allega- tions in the complaint and the commission of any unfair labor practices. The primary issues are whether B.F C Corp (Re- spondent) (a) had a duty to recognize and bargain with the Union, (b) unlawfully withdrew recognition from the Union and repudiated the contract with the Union in violation of Section 8(a)(1) and (5) of the Act when it ceased making contributions to union benefit programs and went open shop, and (c) constructively discharged several employee members of the Union in violation of Section 8(a)(1) and (3) of the Act. Secondary issues deal with the status of the Union as a labor organization and exclusive representative of em- ployees. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. A brief was submitted by the General Counsel and was considered. On the entire record in this case' and from my obser- vation of the witnesses and their demeanor on the wit- ' The following posthearing motions , responses , and orders have been marked for identification as shown and received into the record The General Counsel's motion to reopen the record dated February 22, 1979, GC Exh 7, Respondent's opposition thereto, R Exh 2, my Order to reopen for limited purpose , dated March 28, 1979, it Exh 1, my Order of May 1, 1979, rescinding the March 28 Order, Jt Exh 2, General Counsel's letter of May 7, 1979, forwarding a stipulation of the parties on commerce facts to me, G C Exh 8a , the stipulation on commerce facts received on May 28, 1979, G C Exh 8b, Respondent's motion dated July 5, 1979, to me to withdraw my Order of May 1, 1979, R Exh 3a, Re- spondent's prepared Order withdrawing my Order of May 1, 1979, R Exh 3b , and, the General Counsel's opposition to Respondent 's motion II. STATUS AS LABOR ORGANIZATION The Union is affiliated with the International Brother- hood of Electrical Workers, AFL-CIO. Foreman, the Union's business manager and financial secretary , testi- fied that employees participate in the internal affairs of the Union, and that the Union exists for the purpose of dealing with employers concerning grievances, labor dis- putes, wages, rates of pay, hours and working conditions of its members. Within its jurisdiction the Union negoti- ates contracts with the Northwest Texas Chapter of the National Electrical Contractors Association (NECA) as well as other individual contractors Two such associa- tion contracts are in this record. Further the Union has previously been found to be a labor organization within the meaning of the Act.3 No testimony to the contrary was offered. Therefore, in view of the above, I find that the Union is a labor organization as defined in Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Facts4 Respondent began operations as an electrical contrac- tor in Sherman, Texas, sometime prior to 1975. Initially for withdrawal of my May 1, 1979 Order dated July 9, 1979, G C Exh 9 2 Additional pleadings allege Respondent to be a member of NECA and thereby within the Board 's jurisdiction over employer associations through one or more of the association 's member employers Here, the Board would have jurisdiction over NECA and its members by the way of prior assertion over members Fisk Electric and Fischback & Moore See Electrical Workers IBEW Local 716, 203 NLRB 333 (1973), and O'Keefe Electric Co, 158 NLRB 434 (1966) In view of my subsequent finding of Respondent's membership in NECA the issue of jurisdiction is further resolved ' Electrical Workers IBEW Local 59 (Andersen Co), 135 NLRB 504 (1962) 4 Andrew Brockelman, president and managing officer of Respondent, testified without contradiction to the affairs of B F C Corp Supplemen- tal testimony by Foreman and Potts was also uncontroverted, 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Z employees were referred from the Sherman, Texas Elec- trical Union No. 338 for local jobs. In January 1975 Local No. 338 merged with the Electricians Local Union No. 59 in Dallas. Local 59 thereafter maintained an office in Sherman, Texas. Respondent, in October 1975, signed a ' letter of Assent-A with Local 59, which ex- pressly authorized NECA to represent it as collective- bargaining agent with Local 59 with regard to the cur- rent inside agreement between NECA and Local 59. Such authorization continued in effect unless terminated by Respondent at least 150 days prior to the contract's then current anniversary date. The effective dates of the subject agreement were June 1, 1975, through May 31, 1977.5 On May 30, 1977, Respondent executed a subse- quent letter of Assent-A respecting the newly negotiated contract bearing the effective dates of June 1, 1977, to May 31, 1979.6 Just prior to the current contract's effec- tive date Local Union No. 59 and NECA negotiated and executed a memorandum of agreement, dated May 27, 1977, and effective June 1, 1977. The purport of the memorandum was to allow signatory employers to pay employees less than union scale on certain jobs thereby becoming competitive with nonunion shops. In addition the Local Union was reducing its out-of-work list by having more jobs available for its members or prospec- tive members. The memorandum further provided that Local Union No. 59 members will fiave top priority for hiring and Local Union No. 59 shall supply all employ- ees,, whether union members or not. All nonmember re- ferrals were union applicants prior to referral and subject to a restricted tenure if membership was not ultimately obligated to the Union. All fringe benefits payable to the Local Union relative to memorandum controlled jobsites were paid pursuant to the current inside agreement's terms. From inception, in October 1975, Respondent paid all fringe benefits required by the current inside agree- ment negotiated by NECA and Local Union No. 59 up to and including payments for August 1978. September 1978 and subsequent fringe benefits to the Union were not made by Respondent on advice of his counsel. Until the memorandum was executed Respondent paid the union scale, however, after the memorandum Re- spondent accepted only jobs covered by the memoran- dum and allowing less than union scale.' Respondent was notified of jobs covered by the memorandum through letters from NECA to signatory employers. At all times prior to September 1978 Respondent's jobs were manned by employees referred by the Union 5 Although Local Union No 59 and NECA negotiate several contracts in the industry, only the inside electrical agreement is material herein '' An object of written agreements is to achievecertainty of substance Respondent's Assent-A, dated May 30, 1977, by Respondent and bearing the Union's approval date of June 7, 1977, is on its face clear and unmis- takable as to effective date Brockelman offered testimony to vary the date of the instrument (affixed by himself) to sometime in August 1977 An obvious change in date of the Union's transmittal letter was offered as supporting evidence of the variance I do not credit Brockelman 's testi- mony on this point His testimony was vague , unconvincing, and sketchy and only served as conclusions which of themselves were not sufficient to vary the terms of the instrument Additionally, the obvious change in the date of the transmittal letter went only to the day'of the week, the month_of June and the year 1977 was not subject to question 7 Journeymen scale was $10,43 in 1977, $11 03 in 1978 The memoran- dum wage scale for journeymen was $7 in 1977 and $7.50 in 1978 with the single exception of one job that required some rework. Respondent accomplished the rework with em- ployees not within Local Union No. 59's membership. All employees referred by Local Union No. 59 were classified as journeymen or apprentice electricians. Re- spondent paid the employees pursuant to either the cur- rent inside agreement or the memorandum of agreement depending on which controlled the particular jobsite. During the period May to September 1979 the Union re- ferred approximately 15 employees with the last referral dating September 18, 1978. Supervision of all employees was accomplished by Brockelman and his son. Brockelman testified that Local Union No. 59 repre- sents all the electrical workers dispatched from Local Union No. 59's hall in their relations with Respondent and makes sure that the contract is followed. Brockel- man dealt with Local Union No. 59 when complaints arose in an attempt to resolve the problems. Both Brock- elman and Foreman recall the complaint of poor work- manship arising in July 1978. Brockelmen complained to Local 59 and the Union offered to have the work redone by the employees on their own time and during regular working hours pursuant to the contract. Brockelman, however chose to have the work done outside regular working hours at his own expense. At some time during the summer of 1978 Brockelman told his employees that there was a possibility that he might get out of the Union. During this time period Respondent had two jobs in progress under a single construction contract. Both jobs were elementary schools in Carrollton, Texas, and were ultimately manned by the four employees involved in the alleged unfair labor practices. Each employee was hired as follows: Evans, April 1978; Cunningham, June 1978; Buck, July 1978; Fagala, September 1978. On September 22, 1978, Brockelman sought out Charles Evans to give him a message for the crew. Brockelman told Evans that under the circumstances he was going to go open shop. Brockelman stated to Evans that he and the other men could either stay with the Company or get off early to go to the hall. Brockelman testified: A. I told them, due to circumstances beyond my control I could no longer stay with them in the Sherman area and I assumed it would be the same way there. I told him [Evans] that under the cir- cumstances that I could no longer be-handle it in the Sherman area and consequently would mean the Carrollton area. Q. Could no longer handle working under the union contract, is that correct? A. Yes, with-under their standards, yes. Q. Under the Union standards? A. Yes. Q. What was it you told the employees and what options did you give them? A. I told them I didn't know what I was going to have to do, and wanted to know what they would have to do. B F.C. CORP. Q. Well, you also told-at least you told Evans that you couldn't go on any longer working as a union contractor? A. In the Sherman area. Q. And that, that also meant you couldn't work in the Dallas area? A. Well, I assumed that it meant the same thing there. Q. You told Evans that then that I am not going to be able to be a union contractor? A. Under the circumstances I did not think that I could be-I did not say that I wouldn't be. I said I think that I would not be. Q. Well, did he ask you any questions about what you meant? A. No, sir. Q. And you told them that they could either stay on and work with you or go back to the hall and get referred out to some other job. A. No. Q. What did you tell them? A. I told them that that option was theirs. I asked them if they would stay on under the circumstances and I didn't know, you know, at that time know what I was to do, what I was going to do. Not what I was to do but what I was going to do. Q. Well, what did you do? A. When they said they wanted to go into the hall I wrote out their checks. Q. And from that-point forward did you follow any of the terms and provisions of the union con- tract? A. No. Q. From that point forward you abandoned the union contract, is that correct? A. Yes, right. Q. From September 22, 1978 to date you have operated as if you were no longer 'bound by the union contract? A. True. Evans testified that' the morning of September 20, 1978, Brockelman came to the jobsite and in a private conversation told Evans that he was going "open shop." Evans asked him when and Brockelman said he did not know yet. The conversation ended with job-related re- marks, then Evans went back to work. After lunch that same day, Brockelman conversed with Evans again that he was going "open shop" now. The Union was going downhill and he just did not get along with the Union. Brockelman said the employees could work for him but he did not want to tell them what to do. Evans replied that he was going to stay in the Union but he would tell the other men what Brockelman had said. Evans then went to Cunningham, Buck, and Fagala and told them what Brockelman had said. Then three employees told Evans that they were going to go back to the union hall and sign the book. They were not going to work "open shop" and lose their membership. Each of the four employees stated that the reason he had decided to go to the union hall rather than continue 589 working for Brockelman was to save their union mem- bership and job benefits. Each knew he could lose his membership and job-related benefits if he worked for a nonunion contractor. All four employees had applied for membership in Local Union No. 59 prior to referral to B.F.C. Corp. Evans perfected his union membership in August 1978. Cunningham and Buck perfected their membership in November 1978. Fagala became an indentured apprentice in May 1978. On November 2, 1978, Brockelman sent a letter to NECA terminating any letter of assent by B.F.C. Corp. The letter by its terms withdrew any authorization to NECA to act as bargaining agent for Brockelman or B.F.C. Corp. Local Union No. 59 did not receive a copy. NECA, however, did inform Local 59's business manager of receipt of the revocation. B. The Alleged 8(a)(5) Violations and Findings and Conclusions 1. Respondent's membership in NECA The General Counsel contends that Respondent's exe- cution of letters of assent-A unequivocally evidence an intent to be bound by the group action of NECA and Local `Union No. 59. The intent, thus established, makes Respondent a member of the multiemployer bargaining group. Respondent, except for its answer to the com- plaint and statements at the hearing, did not offer to gainsay its membership status. The absence of a denial, however, is not dispositive of the membership issue. The Board has held, as the General -Counsel contends, that certain agreements executed by employers clearly show a delegation, to a multiemployer group, of authority to bargain collectively thus establishing membership in the multiemployer group. Conversely, where the agreement executed by the employer was only to accept the terms of a particular contract the Board found no express grant of authority and therefore no membership in the multi- employer group. Northern Nevada Electrical Contractors Assn., 131 NLRB 550 (1961). Albeit the above case in- volves NECA, the terms of the Assent-A letter are not included in the decision. In a subsequent decision, involving an Assent-A letter substantially identical to that in issue here, the Board found the employer to be a member of the multiemploy- er bargaining group. Provided, however, a timely revo- cation was not communicated. Central New Mexico Elec- trical Contractors Assn., 152 NLRB 1604 (1965). The Board further found that the revocation if timely is pro- spective and has no operative effect relative to the col- lective-bargaining agreement then in effect Accordingly, I find that B.F.C. Corp. was a member of NECA via its Assent-A letter and was obligated as a member to the terms of the contract in effect from June 1, 1977, to May 31, 1979.8 In so finding I note particularly that Respond- 8 Preamble of the contract, " Agreement" clause, states, "It shall apply to all firms who sign a letter of assent to be bound by this agreement " The term "Employer" shall mean an individual firm who has been recognized by an assent to this agreement. '590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent, as a member, abided by the negotiations between NECA and Local Union No. 59, which resulted in the memorandum of agreement modifying the application of the contract. Respondent therefore received benefits and used the privileges and rights of NECA membership in conducting its business. 2. The appropriate unit The complaint alleges the appropriate unit to be all ap- prentice electricians and journeymen electricians em- ployed by the employer-member of NECA performing work within the territorial and work jurisdiction of the Union as defined in the contract referred to in paragraph 7 above excluding all other employees of said employers and all supervisors as defined in the Act. (The contract is to the current inside agreement in evidence as G.C. Exh. 3.) Respondent's answer neither admitted nor denied the appropriateness of the unit. The record evidence shows that respondent employees only journeymen electricians and apprentice electricians skilled in the electrical trade. The Respondent only en- gages in electrical construction of a commercial nature. The supervisor of all crews is accomplished by Respond- ent's president and his son . At times the crew size on certain jobs dictates the appointment of a journeyman, as working foreman, but he nonetheless works 100% of the time with his tools. The unit of employees therefore con- sists of all employees- of Respondent defined as journey- men and apprentice electricians. Under Section 9(b) the Board is empowered to deter- mine in each case the unit appropriate for the purposes of collective bargaining. It may be the employer unit or craft unit, among others. In, fact the statute specifically acknowledges the ultra-appropriateness of a craft union.9 There being no dispute of the craft status of Respond- ent's only employees and such employees being identified with only one craft (electrical), I conclude and find that the unit alleged in the complaint defines a homogeneous unit of craft employees and a unit appropriate for the purposes of collective-bargaining within the meaning of the Act. 3. The majority issue As shown in the record, all employees referred by the Union to Respondent's jobsite were previously contract- ed or obligated to the Union for membership . As noted in the memorandum of agreement (germane to work Re- spondent performed) all nonmembers referred had a lim- ited tenure on the job if the necessary obligation to the Union was not forthcoming . All of Respondent's em- ployees were referred by the Union pursuant to its hiring hall and the terms of the contract extant. The contract also includes a recognition clause for all signatory em- ployers or assenting employers . At the time of the al- leged unfair labor practices herein, Respondent em- ployed four employees at two jobsites . These same em- ployees were allegedly constructively discharged when they, en masse, chose to go to the union hall rather than Sec 9(b)(2) and its proscription work nonunion. I see no argument nor evidence in the record contrary to the Union 's representative status. The Union is entitled, in the least, to a presumption of majority status based on its contract with Respondent. Even if the Union was not entitled to the presumption, the Union did have a numerical majority of Respondent's employees at the critical time by virtue of all of Re- spondent's employees' contractual obligations to the Union. Accordingly, I find that the Union represented a majority of Respondent's employees in an appropriate unit at all times material herein, and particularly since May 30, 1977. 4. The 8(a)(5) allegations The General Counsel contends that Respondent re- fused to bargain with the Union by bargaining individ- ually with employees and by unilaterally rejecting and repudiating its contract with the Union including cessa- tion of benefit payments to the Union's various funds. Respondent denies the complaint allegations, but makes no argument or defense other than to show that Respondent tendered a revocation of the Assent-A letter to NECA and attempted to show Respondent 's dissatis- faction with the union employees ' work, which resulted in financial losses to Respondent . Respondent did offer testimony that the Assent-A letter was meant to last only 1 year. The limitation of 1 year was apparently based on the initial Assent-A executed in October 1975 during the term of the previously negotiated contract. Assuming ar- guendo, the partial effectiveness of the 1975 assent letter spans 19 months of a 2-year contract term . Additionally, Respondent's admission to a 1-year delegation evinces a procedural basis rather than a substantive basis for its denial of a bargaining obligation. With regard to Respondent's defense of the written revocation, it is sufficient to explain that such a revoca- tion is only effective to withdraw bargaining authority (and thereby membership in NECA) for future negotia- tions. The language of the grant of authority is clear that such delegation is for the life of the then current agree- ment. The agreement and the delegation of authority expire simultaneously, May 31, 1979, pursuant to the timely revocation of November 2, 1978. Therefore, during the life of the agreement, the prior delegation of bargaining authority remains viable. Respondent was chagrined over the quality of work performed by several union members and complained to the Union. The Union suggested the contract procedure of rework but Respondent preferred an individual resolu- tion, which was within Respondent's contract obligation. Respondent thus bore the entire cost of rework including wages for nonunion employees . Respondent offers the cost attendant to the rework as, apparently , a permissible reason for his unilateral withdrawal of recognition of the Union. Even if economics were an acceptable circum- stance to support an employer' unilateral action under a contract, it would never be acceptable as a defense to unilateral withdrawal of recognition . One breach of a contract never justifies another breach. To put it another way, the very acceptance of collective bargaining envi- sions negotiation as the only avenue to resolve differ- B.F C CORP. ences that arise between the parties, without regard for the origins of those differences. Here Respondent, by his individual conduct, completely repudiated his obligation previously under taken by agreement. Further, the eco- nomic defense of rework costs offered by, Respondent is based completely on Respondent's voluntary conduct rather than the bilateral procedure dictated'by the obli- gations of each party. 10 Additionally, Respondent's announcement that hence- forth it will operate "open shop" shows a previous com- mitment to a "union shop" and undoubtedly founded on Respondent's admitted prior obligation to the union con- tract and NECA collective bargaining. To further evi- dence Respondent's admitted prior obligation to the union contract and NECA collective bargaining, the record shows that Respondent from October 1975 to August 1978 made all necessary fringe payments to the Union as required by the contract including all negotiat- ed increases. Only with Respondent's announcement of his desire to operate "open shop" were the fringe pay- ments affected. I i With Respondent's decision to operate "open shop," his counsel's advise was to cease making all fringe payments under the contract. The announced desire is thus inextricably comingled with Respondent's failure to make the fringe payments for September 1978 and thereafter. The record as a whole demonstrates un- equivocally the existence of a continuing bargaining rela- tionship between the Respondent and the Union. I there- fore conclude and find that Respondent, by announcing its intention to "go open shop" and by ceasing the fringe payments to the union funds, unilaterally withdrew rec- ognition from the Union and repudiated its contract obli- gations with the Union in violation of Section 8(a)(5) of the Act. I do not perceive that Respondent's "open shop" announcement was individual bargaining with em- ployees and thereby an additional violation of the Act. The part played by the employees was totally subordi- nate allowing only for blind acceptance of the terms of the announcement, nothing more. 12 C. Alleged Constructive Discharges The complaint alleges Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala to be constructive- ly discharged by their refusal to accept unilateral changes in their working conditions demanded by Re- spondent on September 20, 1979. Respondent answers that the named employees quit, engaged in an illegal work slowdown or work stoppage, or took voluntary action precluding any issue of dis- charge. 10 Albeit the record does not disclose which of Respondent's employ- ees were responsible for the rework, apparently not all employees were incapable A majority of employees employed in July 1978 when the rework occurred were offered continued employment by Respondent in September 1978 after the rework had been accomplished 11 Brockelman's protestations notwithstanding, the imminence of the change to an "open shop" operation is tantamount to a specific an- nouncement of an effective date and time so far as the effect on the em- ployees is concerned They must make a decision to continue working under changed conditions and benefits with no contract protection or quit to seek other union employment 12 Even if individual bargaining were found, the remedy ordered herein would not require modification 591 Brockelman's recall of his conversation of September 20, 1978, with Evans was insubstantial and punctuated throughout with, "I didn't say I would I only said I may." In response to specific questions, the thrusts of his statements to Evans were defined. Evans' recall was more specific and completely credible. Each employee testified to his reasons for leaving on learning of Brock- elman's plans to go "open shop." Their reasons for leav- ing, although questioned by Respondent, were not con- tradicted by Respondent. Respondent did argue, hesitant- ly, that because of Respondent's lack of knowledge of employees' individual union membership and benefits constructive discharge could not lie. To,wit, "How can you deny something to someone if you don't know they have it in the first place." It is sufficient to respond that Respondent knew that the very liabilities he was obviat- ing were directly attributable to the employees on his payroll pursuant to the collective-bargaining agreement with the Union. The only benefits that any of Respond- ent's employees enjoyed came from the union contract. Any conduct of Respondent that forces an employee to choose between contract benefits and continued union membership or continued employment without benefits is destructive of working conditions and thereby the em- ployment relationship. It is this very circumstance cre- ated by the employer that dictates the application of the constructive discharge principle. When confronted with the prospect of working non- union without union benefits, each employee elected to quit Respondent's employ and return to the union hall. Each did so to protect his union membership and his ac- cruing benefits growing out of his union employment. Each knew that only under a union contract did his ben- efits continue to accrue. I conclude and find that the separations of Evans, Buck, Cunningham, and Fagala were forced by Re- spondent's unilateral demand for changes in their work- ing conditions and its announced intention to operate "open shop" in the future, thereby constructively dis- charging them in violation of Section 8(a)(1) and (3) of the Act. Johnson Electric Co., 196 NLRB 637 (1972). ADDITIONAL CONCLUSIONS OF LAW 1. The Respondent, B.F.C. Corp. both individually and as a member of NECA is engaged in commerce and in operations affecting commerce withing the meaning of Section 2(2), (6), and (7) of the Act. (See fn. 2 and sec. B,1; Pearl Beer Distributing Co., 143 NLRB 596 (1963).) 2. The following multiemployer unit or employer member unit constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All apprentice electricians and journeymen elec- tricians employed by B.F.C. Corp. or employer- members of NECA and/or employers who author- ize NECA to represent them in collective bargain- ing within the jurisdiction of the Union, exclusive of all other employees, guards and supervisors as defined in the Act. 592 DECISIONS OF THE NATIONAL LABOR RELATIONS- BOARD 3. At all times since May 30, 1977, and continuing to May 31, 1979, Local Union No. 59 has been the exclu- sive representative fo all the employees within the above appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By ' unilaterally changing, on September 20, 1978, wages, hours, and working conditions of its employees, in the unit described above, without notifying the Union of its intentions to do so or affording the Union an op- portunity to bargain on the subject, and by modifying the agreement effective June 1, 1977, to May 31, 1979, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employ- ees in the unit described above and thereby violated Sec- tion 8(a)(1) and (5) of the Act. 5. By unilaterally rejecting on September 20, 1978, the collective-bargaining agreement effective June 1,_1977, to May 31, 1979, and attempting to withdraw from the mul- tiemployer association described herein as NECA with- out notification to the Union and at a time when such' withdrawal was not effective the Respondent refused to bargain collectively with the Union as the exclusive rep- resentative of its employees in the unit described above and thereby violated Section 8(a)(1) and (5) of the Act. 6. By unilaterally terminating on September 20, 1978, payments to the existing national electrical benefit fund, the electrical training fund, the welfare fund, the annuity fund, the industry fund and the vacation fund and other terms and conditions of employment set forth in the bar- gaining agreement effective June 1, 1977, to May 31, 1979, Respondent has refused to bargain with the Union as the exclusive representative of its employees in the unit described above and thereby violated Section 8(a)(1) and (5) of the Act. 7. On September 20, 1978, the Respondent did con- structively discharge employees Charles Evans, Larry G. Buck, Terry Cunningham, and Terry Fagala and has failed to reinstate said employees to their former or sub- stantially equivalent positions because they refused to accept unilaterally changed wages and working condi- tions other than those required by the bargaining agree- ment effective June 1, 1977, to May 31, 1979, thereby violating Section 8(a)(1) and (3) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. Respondent's termination notice of November 2, 1978, is timely to revoke the prior delegation of bargain- ing authority to NECA and is effective with the expira- tion of the inside agreement on May 31, 1979, thereby relieving Respondent of any bargaining obligation to the Union that may be incurred by NECA thereafter in behalf of member-employers. THE REMEDY Having found that Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Respondent will be directed to cease and desist from engaging in the conduct found unlawful herein, or any such conduct; to rescind and revoke its unlawful aban- donment of the terms and conditions of employment of the unit employees contained in the bargaining agree- ment effective June 1, 1977, to May 31, 1979; to give ret- roactive effect to the terms and conditions of employ- ment as contained in that agreement from September 20, 1978, the effective date of Respondent's unlawful repudi- ation, to May 31, 1979, the expiration date of said agree- ment; to make whole the employees in the unit found ap- propriate herein for any loss of wages or other benefits they may have suffered as a result of Respondent's un- lawful constructive discharge and refusal to bargain; to pay all national electrical benefits funds, all electrical training funds, all welfare funds, all annuity funds, all in- dustry funds, and all vacation moneys as provided for under the bargaining agreement effective June 1, 1977, to May 31, 1979, which have not been paid and which would have been paid but for Respondent's unlawful dis- continuance of such payments; and to post the attached notice. The record evinces a steadily decreasing work force on the several jobsites controlled by the memorandum of agreement. The record is silent on prospective dates of completion of those jobs. However, the four discrimina- tees herein were the entire work force on the two re- maining jobsites at the time of the discrimination. It would therefore appear that the four discriminatees would have worked until the completion of the two jobs but for Respondent's discrimination. Since the memoran- dum of agreement provides that all jobs started under the memorandum will be finished under its terms without regard for the termination date of the controlling inside bargaining agreement, the fact that the, two jobsites herein may not have been completed by the expiration date of May 31, 1979, will not affect the length of the backpay period. Further, in view of my findings that Re- spondent is only obligated to the Union for the term of the existing collective-bargaining agreement (inside agreement, June 1, 1979, to May 31, 1979), I shall not order reinstatement, but shall order that the discrimina- tees be made whole for wages and other benefits lost from the time of their constructive discharge until the date of completion of the jobs on which they were working at the time of their constructive discharges. The backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). 13 [Recommended Order omitted from publication.] 13 See, generally, Isis Plumbing Co., 138 NLRB 716 (1962)