Reliable Electric Co., Inc.

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Reliable Electric Co., Inc. and International Broth- erhood of Electrical Workers, Local Union No. 68. Case 27-CA-8682 9 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 December 1984 Administrative Law Judge Burton Litvak issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, the Respondent filed cross-exceptions and a supporting brief, the General Counsel and the Charging Party filed an- swering briefs to the cross-exceptions, and the Re- spondent filed an answering brief to the General Counsel's and Charging Party's exceptions and sup- porting briefs. On 3 February 1986 the Board scheduled oral ar- gument in this proceeding and related cases 1 be- cause they presented important issues in the admin- istration of the Act. The notice of hearing stated that the Board would entertain argument on vari- ous issues raised under Section 8(f) of the Act by the several cases. An order and supplement to the notice of hearing issued on 12 March 1986. On 24 March 1986 the Respondent, the General Counsel, the Union, the American Federation of Labor and Congress of Industrial Organizations, the AFL-CIO's Building and Construction Trades Department, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Associated Builders and Contrac- tors, Inc., the Council on Labor Law Equity, and the National Right to Work Legal Defense Foun- dation, Inc.2 presented oral argument before the Board. The parties and the amici curiae have filed briefs and statements of position. The Board has considered the decision and the record in light of the exceptions and briefs, oral ar- guments, and statements of position and has decid- ed to affirm the judge's rulings, findings,3 and con- clusions only to the extent consistent with this De- cision and Order. i John Deklewa & Sons, 282 NLRB 1375 (1987), Viola Industries, 286 NLRB 306 (1987) 2 The AFL-CIO, its Building and Construction Trades Department, the Teamsters, the Associated Builders and Contractors, the Council on Labor Law Equity, and the National Right to Work Legal Defense Foundation appeared as amici curiae 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The record reveals that on 8 June 1976 the Re- spondent, an electrical contractor, signed two Let- ters of Assent-A, which authorized the Rocky Mountain Chapter of the National Electrical Con- tractors Association (NECA) to act as its collec- tive-bargaining representative and bound the Re- spondent to the then current Denver Inside Electri- cal Construction Agreement (commercial agree- ment)4 and the Denver Residential Wiring Agree- ment (residential agreement) between NECA and the Union. NECA and the Union entered into suc- cessive commercial agreements in 1978 and 1980 and an agreement effective from 1 April 1981 to 31 March 1983. It is undisputed that the Respondent adhered to and fully complied with each agree- ment. In early 1982 the Respondent's president, Antho- ny M. Prilika, met with NECA Executive Director R. L. Massey and informed him he no longer wished to be a member of NECA. The Respondent ceased paying membership dues. Thereafter, at the direction of the association's board of directors, Massey informed Prilika that, under the associa- tion's bylaws, such a request to resign must be made in writing. Although Prilika testified that he had sent a letter of resignation to NECA in which he also withdrew authorization for the association to bargain collectively on the Respondent's behalf,5 the judge found no credible evidence sup- porting this contention. He also found, contrary to the Respondent's contention, that no such letter had been transmitted to the Union. In August 1983, NECA and the Union executed a successor commercial agreement effective by its terniis from 1 April 1983 to 31 March 1986. Fol- lowing expiration of the prior agreement, the Re- spondent continued to pay unit employees contrac- tual wages and benefits. At the time, 50 to 60 per- cent of the work it was performing was under Fed- eral contract on the Rocky Flats project, a nuclear energy complex. According to the Respondent, its continued adherence to the contractual rates and benefits in 1983 was coincidental to its obligation as a Federal contractor under the Davis-Bacon Act to 4 The then current commercial agreement was effective by its terms from I April 1976 to 31 March 1978 5 Execution of Letter of Assent-A, rather than mere membership, au- thorizes NECA to bargain on behalf of employer-members and non- members alike and binds those employers to the applicable collective-bar- gaining agreements E g, Vincent Electric Co , 281 NLRB 903 (1986) We find it unnecessary to pass on the issue of whether, in view of the inter- vening decision in Deklewa, we would adhere to the Board 's dismissal of the petition in Vincent Chairman Dotson agrees that the Respondent intended to be bound by NECA's bargaining authority under the circumstances of this case, but he notes his view that execution of a Letter of Assent -A is not always con- clusive proof of an employer 's intent to delegate such authority See the Chairman's dissent in Vincent Electric, supra 286 NLRB No. 83 RELIABLE ELECTRIC CO. 835 pay journeymen wiremen and apprentices "prevail- ing" wages and benefits identical to those paid under the commercial agreement. Other Denver City and Colorado state projects the Respondent undertook at this time were also governed by local prevailing wage requirements. In addition, Prilika testified, to facilitate bookkeeping, he paid electri- cians working on other projects the same wages and benefits paid on Government contract jobs. During 1983, in the face of mounting competi- tion from nonunion contractors, the Respondent discussed with a number of employees the prospect of converting to a nonunion operation. Toward the end of that year, the Respondent and the Union en- gaged in an exchange of correspondence in which the Respondent maintained it was not bound by the terms of the 1983-1986 commercial agreement and that NECA no longer represented it for purposes of collective bargaining. By its letter of 1 Decem- ber 1983 to the Union, the Respondent took the position that, following its alleged "cancel[lation]" of authorization to NECA to bargain on its behalf, it assumed that the Union "had abandoned repre- sentation of the several electricians we employ." In this letter, the Respondent further stated that, unless the Union notified it of its intention to bar- gain over a new contract within 10 days, it would proceed to implement unilateral changes in unit wages and fringe benefits. By letter of 14 Decem- ber 1983, the Union responds that it "has never re- ceived a written notice form . . . terminating [its] Letter of Assent," and that it considered the Re- spondent bound by the then current commercial agreement. In mid-January 1984 the Respondent met with assembled commercial and residential wiremen and, in Prilika's words, "told them the company cannot make it with its structure right now. Either we make some changes or the company will go broke." Prilika further asserted that the Union had declined to respond to his requests for bargaining and that "we are going to become open shop." Pri- lika responded to an employee's question whether he meant "nonunion" by saying; that "if that's what you call nonunion, that's what is nonunion." Prilika made clear that thereafter employees would no longer be paid wages and benefits in accordance with the contract. At the mid-January meeting Prilika also dis- cussed a written employment contract, which on 24 January he presented to individual journeymen wiremen. These contracts specified an hourly wage rate for commercial wiremen of $15 per hour, a rate that was lower than the commercial contract wage rates, and they differed from the commercial contract with respect to certain benefits. Contracts containing identical terms and conditions of em- ployment except for an $11 wage rate were pre- sented to four residential wiremen. In a series of conversations with individual employees, the Re- spondent presented the terms specified in the em- ployment contracts as the only conditions under which they could continue working for the Re- spondent. Five commercial journeymen wiremen- Bruce Knoke, Kim Maclntyre, James Belshe, Bill Jackson, and Bob Holcomb-and one commercial apprentice wireman, Dale Wittwer, refused to exe- cute individual contracts and left the Respondent's employ, while the two others, Bob McFarren and Steven Godwin, continued working.6 In John Deklewa & Sons,7 we set forth the fol- lowing principles governing an 8(f) relationship: (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 expiration of such agreements, the signatory union will enjoy no presumption of majority status, and either party may repudiate the 8(f) bargaining relationship.8 We abandoned the so-called conversion doctrine, which vested an 8(f) union with status as a 9(a) representative by means other than a Board elec- tion or voluntary recognition.9 We likewise reject- ed precedent viewing an unconverted 8(f) agree- ment as unenforceable and subject to unilateral re- pudiation at any time. l o The judge, under then-applicable precedent, con- cluded that the Union never enjoyed 9(a) majority representative status, that the Respondent was therefore justified in refusing to abide by the com- mercial agreement, and that such unilateral repudi- ation of the agreement did not violate Section 8(a)(5). Under the 8(f) principles announced in Deklewa, we reverse. The Respondent voluntarily entered into an 8(f) relationship with the Union. By one of the two Letters of Assent-A it signed in 1976, the Respond- 6 least one other employee, Brian Regg, and possibly a fourth, con- tinued to work for the Respondent after 24 January Regg's unit status is unclear from the record Commercial wireman Gilbert Cito did not testi- fy and the record does not show whether or under what circumstances he may have left the Respondent's employ 7 Supra 282 NLRB at 1377-1378 Id at 1385-1386 i° Id at 1384-1385 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent authorized NECA to represent it in collective bargaining and to be bound by the then current commercial agreement. Further, the Respondent's authorization to NECA did not terminate at the end of the then current commercial agreement, but bound it to succeeding agreements as well." Au- thorization continued unless the Respondent subse- quently took some action effectively withdrawing the multiemployer group's authority to bargain on the Respondent's behalf. As found by the judge, no such notice had been given at the time the 1983- 1986 successor commercial agreement was execut- ed or the following winter when the Respondent repudiated that agreement. Under the Deklewa principles, the successor commercial agreement was "binding, enforceable, and not subject to uni- lateral repudiation by the Respondent."12 Thus, the Respondent's unilateral repudiation of the con- tract violated Section 8(a)(5). The Respondent, by Prilika, both at his 24 Janu- ary 1984 employee meeting and in subsequent con- versations with individual employees, conveyed the message that the Respondent no longer considered itself bound by the 1983-1986 successor commer- cial agreement. It extended to them individual em- ployment contracts to sign, with the understanding that any future employment would be grounded in terms specified therein. The Respondent effectively presented the employees with the Hobson's choice between continued employment with lower wages and benefits or no employment at all, rather than receipt of benefits provided by the successor com- mercial agreement. It thereby constructively dis- charged the forelisted six commercial journeymen and apprentices in violation of Section 8(a)(3).' 3 We do not, however, find a comparable 8(a)(5) violation with respect to the residential wiremen. The amended complaint contains no allegations that the Respondent had a bargaining obligation with respect to employees covered by the residen- tial agreement or that it violated Section 8(a)(1) and (5) with respect to a unit of residential wire- men. As noted by the judge, the General Counsel was afforded the opportunity and specifically de- clined further to amend the complaint at hearing to include such allegations. Thus, we cannot conclude that issues regarding the Respondent's compliance 1 See McCormick Electrical Construction, 240 NLRB 418 , 424 (1979) 12 Deklewa, supra at 1389 The finding that a continuing contractual obligation existed turns on our determination that the Respondent had not successfully revoked NECA's bargaining authority , but this does not mean that the Respondent's employees were necessarily part of a multi- employer bargaining unit In Deklewa, the Board rejected the so-called merger doctrine's application in 8(f) cases and held that the appropriate unit for representation elections will normally be the single employer's employees covered by an 8(f) agreement Deklewa, supra at 1377 13 See White-Evans Service Co, 285 NLRB 81 (1987), Superior Sprin- kler, Inc, 227 NLRB 204 (1976) with the residential agreement were fully and fairly litigated. Because, so far as the record shows, the residential wiremen had no right to require the Re- spondent to adhere to any agreement covering their terms and conditions of employment and be- cause, under Deklewa, the Respondent had no post- contractual obligation to bargain with the Union for any new collective-bargaining agreement, the Respondent's refusal to offer the residential wire- men jobs covered by a union agreement did not amount to a forced choice between yielding a Sec- tion 7 right on not having employment with the Respondent. Furthermore, the record contains no evidence that the Respondent violated Section 8(a)(3) in any other manner with respect to these employees. Accordingly, we dismiss complaint alle- gations that the Respondent constructively dis- charged residential wiremen Arthur Veldez, Napo- leon Williams, Jeffrey Slovsly, and Craig Terry in violation of Section 8(a)(3). THE REMEDY Having found that the Respondent engaged in certain unfair labor practices , we shall order that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to make whole, as pre- scribed in Ogle Protection Services, 183 NLRB 682 (1970), and Kraft Plumbing, 252 NLRB 890 (1980), employees for any losses they may have suffered as a result of the Respondent's failure to adhere to the commercial agreement since January 1984, with in- terest, as computed in the manner prescribed in New Horizons for the Retarded.'4 In view of the rules set forth above, we shall not extend the make-whole remedy for noncompliance with the provisions of the 1983-1986 contract beyond the expiration date of that contract.'s The Respondent, having violated Section 8(a)(3) and (1) of the Act by constructively discharging Bruce Knoke, Kim Maclntyre , James Belshe, Bill Jackson, Bob Holcomb, and Dale Wittwer, must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed 14 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621 ) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments Therefore , any additional amount owed with re- spect to fringe benefit and pension funds shall be determined in accord- ance with Merryweather Optical Co, 240 NLRB 1213, 1216, fn 7 (1979) 15 See Deklewa, supra at 1390 RELIABLE ELECTRIC CO 837 on a quarterly basis from the date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Reliable Electric Company, Denver, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition during the term of a collective-bargaining agreement from Internation- al Brotherhood of Electrical Workers , Local Union No. 68, as the exclusive collective-bargaining rep- resentative of the Respondent 's employees covered by the agreement. (b) Refusing to adhere to its 1983-1986 collec- tive-bargaining agreement with the Union until the 31 March 1986 expiration date. (c) Unlawfully terminating employees or other- wise unlawfully discriminating with regard to their wages and terms and conditions of employment. (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) Offer Bruce Knoke, Kim Maclntyre, James Belshe, Bill Jackson, Bob Holcomb, and Dale Wittwer reinstatement to their former jobs or, if those jobs no longer exist , to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed and make them whole for any loss of earn- ings or other benefits suffered as a result of the dis- crimination against them , in the manner set forth in the remedy section of this decision. (b) Make whole employees covered by the com- mercial agreement, in the manner set forth in the remedy, for any losses they may have suffered as a result of the Respondent's failure to adhere to the contract until it expired on 31 March 1986. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (d) 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. (e) Post at at its Denver, Colorado, office copies of the attached notice marked "Appendix."16 Copies of the notice, on forms provided by the Re- gional Director for Region 27, 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. (f) Sign and return to the Regional Director suf- ficient copies of the attached notice marked "Ap- pendix" for posting by International Brotherhood of Electrical Workers, Local No. 68, if willing, in conspicuous places where notices to employees and members are customarily posted. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 16 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, during the term of a collective- bargaining agreement , repudiate that agreement and withdraw recognition from International Brotherhood of Electrical Workers, Local No. 68, as the exclusive collective-bargaining representative of our employees covered by the agreement. WE WILL NOT refuse to adhere to our 1983-1986 collective-bargaining agreement with the Union until the 31 March 1986 expiration date. WE WILL NOT unlawfully terminate employees or otherwise unlawfully discriminate with regard to their wages and terms and conditions of employ- ment. 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. 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL offer Bruce Knoke, Kim Maclntyre, James Belshe, Bill Jackson, Bob Holcomb, and Dale Wittwer immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other ben- efits resulting from their discharge, less any interim earnings, plus interest. WE WILL notify Bruce Knoke, Kim Maclntyre, James Belshe, Bill Jackson, Bob Holcomb, and Dale Wittwer that we have removed from our files any reference to the unlawful discharges and that the discharges will not be used against them in any way. WE WILL make our employees whole for any losses they may have suffered as a result of our failure to adhere to the 1983-1986 contract with the Union until it expired on 31 March 1986. RELIABLE ELECTRIC COMPANY Barbara E. Young, Esq., for the General Counsel. Larry Marquess, Esq. (Stettner, Miller & Cohen, P.C.), of Denver, Colorado, for the Respondent. Martin D. Buckley, F. C., of Denver, Colorado, for the Charging Party. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge. The above-captioned matter was heard by me on October 11 and 12, 1984, in Denver, Colorado. On September 13, 1984, the Regional Director for Region 27 of the Nation- al Labor Relations Board (the Board) issued an amended complaint, based on an original and first amended unfair labor practice charge filed on January 27 and July 10, 1984, respectively, by International Brotherhood of Elec- trical Workers, Local Union No. 68 (the Union), alleging that Reliable Electric Co., Inc. engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act)." Respondent filed an answer essentially denying the commission of any unfair labor practices. At the hearing, all parties were afforded the opportunity to examine and cross-ex- amine witnesses, to present any and all relevant evi- dence, to argue their legal positions orally, and to file posthearing briefs. The latter were filed by the General Counsel and by counsel for the Respondent; both briefs have been carefully considered. Accordingly, based on the entire record herein, including the posthearing briefs and my observation of the demeanor of the witnesses, I make the following At the hearing, counsel for the General Counsel sought and was granted permission to amend par V of the amended complaint, adding the names of four individuals as alleged discriminatees FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent has been a State of Colorado corporation, maintaining its principal office and place of business in Denver, Colorado, and engaged in business as an electrical contractor. In the normal course and conduct of the business operations, Respond- ent annually performs services valued in excess of $50,000 for firms, each of which annually purchases and receives goods, materials, and services valued in excess of $50,000 directly from locations outside the State of Colorado. Respondent admits that, at all times material, it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION At all times material, the Union has been a labor orga- nization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Did Respondent violate Section 8(a)(1) and (5) of the Act on November 21, 1983, by refusing to adhere to and repudiating an existing collective-bargaining agree- ment with the Union? 2. Did Respondent violate Section 8(a)(1) and (5) of the Act in January 1984 by unilaterally reducing the wage rates of its employees covered by the aforesaid col- lective-bargaining agreement, by ceasing to make pay- ments on behalf of the employees to various fringe bene- fits trust funds as set forth in the collective-bargaining agreement, and by unilaterally implementing health in- surance and life insurance programs for the above em- ployees? 3. About January 24, 1984, did Respondent construc- tively discharge employee James Belshe, Gilbert M. Cito, Robert G. Holcomb, Bill R. Jackson, Craig D. Terry, Arthur R. Valdez, Napoleon Williams, Bruce Knoke, Kim Maclntyre, Dale Wittwer, and Jeffrey Slavsky in violation of Section 8(a)(1) and (3) of the Act? IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record establishes that Respondent is engaged in business as an electrical contractor in Denver, Colorado, and throughout its surrounding areas; that Anthony M. Prilika is the president of the corporation and the indi- vidual responsible for all labor relations matters; and that Prilika purchased the assets of Respondent and assumed operational control over the business in May 1976. The work of Respondent consists of new electical construc- tion, remodeling of existing structures and residential and commercial service calls for various customers-includ- ing government (Federal, state, and local), general con- tractors, owner-builders, and private parties. At least through January 1984, in order to perform the work, Re- spondent employed journeymen electrical wiremen and apprentices. The record further establishes that, when Prilika purchased the assets of Respondent in 1976, it RELIABLE ELECTRIC CO. 839 was, and had been for the preceding 25-year period, an employer-member of the Rocky Mountain Chapter of the National Electrical Contractors Association (NECA)2 and that, at the time of purchase, Respondent was bound to the existing collective-bargaining aree- ments between NECA and the Union, covering both commercial and residential electrical work.3 Prilika testified that, a few weeks after he began oper- ating the business of Respondent, on June 8, 1976, Robert Ligino, the business manager of the Union, vis- ited Respondent's office and told him that, inasmuch as Prilika was the new owner, he would be required to exe- cute new Letters of Assent-A.4 According to Pnlika, Ligino handed the forms to him, assuring Respondent's president that nothing in the Letter of Assent-A would "haunt" the Company as "everybody do it that belongs to the Union. Since I'm still a union member, that it couldn't hurt me, this was just a formality." Prilika, who had no prior experience in collective bargaining, exam- ined the documents and asked, "am I signing my life away . . . and he said, 'No, this is just the duration of the agreement."' Thereupon, Prilika testified, he signed a Letter of Assent-A for the existing commercial contract and another for the then-current residential agreement. Bearing Prilika's signature beneath Respondent's name and the date June 8, 1976, the former document, General Counsel's Exhibit 2, reads as follows: In signing this letter of assent, the undersigned firm does hereby authorize Rocky Mountain Chap- ter, NECA as its collective bargaining representa- tive for all matters contained in or pertaining to the current approved Denver Inside Electrical Con- struction labor agreement between the Rocky Mountain Chapter, NECA and Local Union 68, IBEW. This authorization, in compliance with the current approved labor agreement, shall become ef- fective on the 7th day of June, 1976. It shall remain in effect until terminated by the undersigned em- ployer giving written notice to the Rocky Mountain 8 NECA is an organization composed of employer engaged in electri- cal contracting One of its main functions is the negotiation and the ad- ministration of collective -bargaining agreements with the Union for em- ployers (whether members or not) who have assigned bargaining rights to NECA a The commercial electrical work was covered by the Denver Inside Electrical Construction agreement, commonly called the commercial agreement, effective from April 1, 1976, until March 31, 1978, and the residential work was the subject of the existing Denver Residential Wiring contract , commonly called the residential contract * The record establishes that NECA is comprised of both union and nonunion contractors and, according to R L Massey , the executive di- rector of the association from 1972 until June 1983, membership alone does not bind a contractor to any of the colective -bat gaining agreements, negotiated by NECA, with the Union. Rather, the execution of a Letter of Assent-A by an employer-member is the means by which the contrac- tor authorizes NECA to bargain, on its behalf, with the Union and binds itself to the applicable existing agreement In this regard , non-NECA members also execute the aforementioned assent letters , thereby binding themselves to NECA bargaining in the same manner, and with the identi- cal effect , as NECA members There is no record evidence as to the names of the employers who were members of the NECA-represented rnultiemployer group for any of the successive commercial contracts , not as to the numbers of inside wiremen employed by the employers, nor as to the percentage of same who were members of the Union Chapter, NECA and to the Local Union at least one hundred fifty (150) days prior to the then cur- rent anniversary date of the aforementioned ap- proved labor agreement. Prilika further testified that "I'm pretty sure" a copy of the current commercial contracts was in the possession of Respondent by June 8, 1976, and that it had been paying, and continued to pay, the wages and fringe bene- fits set forth therein. The record discloses that successor agreements to the aforementioned commercial contract became effective on April 1, 1978, April 1, 1980, and April 1, 1981, with the latter in effect until March 31, 1983. There is no dispute that Respondent adhered to the terms and conditions of employment set forth in these successive agreements, in- stituting any required changes. According to Prilika, while never asked to execute a new Letter of Assent-A, he nevertheless honored these Inside Electrical Con- struction contracts as "I was a member of . . . NECA . . . and I thought . . . . As long as you are a member, that you pay what they ask you." However, dissatisfied that NECA accepted into membership nonunion contrac- tors who had a competitive advantage over union con- tractors such as Respondent, Prilika sought to terminate Respondent's membership in the Association early in 1982. He testified that during the winter of that year, he met with R. L. Massey, the executive director of NECA, "and I informed him that we do not wish to be a member any longer of NECA." Accordingly, Prilika ceased paying Respondent's membership dues, and, on June 3, 1982, he dispatched a letter to Massey in which he reiterated that "we are not a member of the Rocky Mountain Chapter NECA and have not signed an agree- ment as such." Despite these actions, the board of direc- tors of NECA met in July, considered Prilika's verbal re- quest to resign, and directed Massey to inform Prilika that, pursuant to the association's bylaws, Respondent's resignation request must be in writing. Thereupon, by letter dated July 15, 1982, Massey so informed Prilika.6 Respondent's president testified that Massey, indeed, requested "a letter that he can present to the governing body of NECA so that I can be officially out of the or- ganization"; that Prilika responded , in writing, within 2 or 3 days; and that a copy of this letter was sent to the Union. According to Pnlika, his reply letter was worded as follows: "that I do not wish to belong any longer to NECA because his organization is not functioning to my satisfaction. I withdraw all my bargaining rights with Local 68, and . . . from now on, I will bargain direct with Local 68, and if there's . . . anything that might 6 The Denver Inside Electrical Construction agreement established the terms and conditions of employment for journeymen wiremen and ap- prentices who perform commercial construction jobs The existing 1976 contract contained a union-security clause, requiring union membership after the seventh day following employment, and an exclusive hiring hall provision establishing the Union as "the sole and exclusive" source of re- ferrals for available jobs B Examination of C P Exh 4, the July 15 Massey letter to Pnlika, dis- closes that there is no mention therein of the Union, the NECA collec- tive-bargaining agreements with the Union, or Respondent' s assignment of bargaining rights to the association 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD occur, that I want Local 68 to bargain with me direct." The existence of this letter is a major issue in this case and, in this regard, Prilika admitted that, while he cus- tomarily retains copies of all his correspondence, he did not have a copy of this document;' Jeff Crawford, the current executive director of NECA and the successor to Massey in that position, testified that he conducted a search of NECA's files and could locate no letter in which Prilika terminated Respondent' s assignment of bargaining rights to NECA; s and both Jim Campbell, the Union's present business manager, and Albert W. Wright, an assistant business manager of the Union from July 27, 1983, until March 12, 1984, testified that they searched through the Union's files and could find no such letter.9 However, while doubting that such indicat- ed that a copy was being mailed to the Union, 10 R. L. Massey recalled, "We received a letter from [Respond- ent] advising us that we were no longer authorized- they were resigning their membership from the Associa- tion, and we were no longer authorized to bargain for them." In addition, there is no dispute that during the November 18, 1982 labor-management committee meet- ing, attended by representatives of signatory contractors and by union officials and at which procedural arrange- ments for the upcoming Inside Electrical Construction Contract renewal negotiations were discussed, Massey listed the contractors who had canceled their bargaining authorizations to NECA and for whom the association was not bargaining and included Respondent among the enumerated contractors. i i Finally, Prilika further testi- fied that he spoke to William Heffernan, the Union's business manager and successor to Robert Ligino, 12 sometime in 1982 and "I told him that I'm not NECA member any longer and that I signed a letter to NECA and to him, that they do not have any bargaining rights for me. He told me he was aware of that." Neither Hef- fernan nor Ligino was called as a witness by the General Counsel or the Union, and no excuse was offered for the failure of both to testify. There is no dispute that neither concurrently with the 1982-1983 commercial contract negotiations with NECA nor subsequent to the bargaining did the Union ever re- While retaining copies of other relevant correspondence herein, Pn- lika averred that his copy of this letter was lost or misplaced as a result of the moving of Repondent's office and place of business from one loca- tion to another Later, he admitted that such , in fact, occurred early in 1982 8 R L Massey testified that if such a letter was sent to him, it would still be in NECA's files. 9 Campbell also testified that he was the Union's assistant business manager during 1982 and 1983 and that, during that period , he neither saw such a document nor was advised by other union officials that Re- spondent had withdrawn its bargaining authorization from NECA and wished to bargain directly with the Union 10 Massey based his "doubt" on the fact that the letter "was more ad- dressing the membership status of [Respondent] with the Association, that they were terminating their membership and cancelling our right to do any bargaining 11 While unaware of any such written notification by Respondent to the Union prior to this meeting, Campbell admitted that Massey did men- tion Respondent as one of the above contractors. He testified that he said nothing as he was not the union spokesperson at the meeting 12 Prilika asserted that subsequent to mailing a copy of the disputed letter to the Union, he had lunch with Ligino and informed the latter of his action According to the witness, he knew that Ligino was no longer an official of the Union but rather j ust a "friendly advisor " quest that Respondent bargain with it on an individual basis. i a In this regard, Prilika testified that Heffernan ended their above conversation, saying, "I will come back to you in the proper time." However, hearing noth- ing from the union official for the next 3 or 4 months, Prilika assertedly telephoned Heffernan sometime in 1983 and inquired as to their "promised" meeting; Heffernan replied that "now I'm in too much trouble with the .. . International, and I really don't have the time to talk to you about it." Accordingly, Prilika further testified, on the expiration of the existing commercial agreement on March 31, 1983, to which Respondent concededly was bound, and the implementation of the successor there- to ,14 as Respondent had withdrawn its authorization to NECA to bargain on behalf of Respondent and as no bargaining had taken place on an individual basis with the Union, he did not believe that Respondent was, in any way, bound to the successor commercial contract or obligated to adhere to its terms and conditions of em- ployment. Nevertheless, Respondent concedes that it did, in fact, apply these to its commercial employees by dint of the type of commercial contract work it performed. Thus, Prilika estimated that up to 60 percent of the elec- trical work during 1983 was pursuant to a contract with a governmental entity and testified that most of this was new construction work performed for the Federal Gov- ernment at what is termed the Rocky Flats project, a large nuclear energy complex located west of Denver. It is, of course, clear that for this work Respondent was re- quired to pay its journeymen wiremen and apprentices the "prevailing" wages and fringe benefits for their labor, and the record discloses that, based on analysis of the various exhibits herein concerning the Rocky Flats project, the prevailing terms and conditions of employ- ment established for journeymen wireman and appren- tices working there are identical to those set forth in the Union's commercial contracts and that Respondent is no- tified by the Federal Government regarding any changes in terms and conditions of employment without reference to the commercial agreement itself.15 Prilika further tes- tified that he paid all his commercial employees the iden- tical wages and fringe benefits as those paid for work on Government projects16 inasmuch as "when you have a 13 Jim Campbell testified that it was the practice of the Union to con- duct individual negotiations with any contractor that withdraws its bar- gaining authorization from NECA in accord with the specifications of Letter of Assent-A. 14 The record reveals that NECA and the Union agreed to the terms of a successor commercial contract during the summer of 1983, that both parties ratified the agreement, but that the International Brotherhood of Electrical Workers disallowed the agreement. Subsequently, there was litigation over what had occurred; a settlement reached in the spring of 1984, with the terms of the initial agreement remaining in effect until the settlement was reached. 15 Respondent's counsel, in his posthearing brief, correctly points out that the changes set forth in R Exh 6 correspond to commercial agree- ment, G C Exh 6(e) 16 The prevailing wage concept also applied to commercial contract work with the State of Colorado. Thus, art 16 of the Colorado Revised Statutes provides that for such contracts for amounts in excess of $5000, a provision must be included that requires the wage rates must not be less than the prevailing rates for similar work in the area According to Pri- lika, the rate coincided with the commercial contract rates RELIABLE ELECTRIC CO. 841 majority of your employees who work on the prevailing wage rate, you would really have a hard time keeping abreast of work on different rates. So if you pay every- body the same and keep your bookkeeping straight, it's that much easier to." The point of the foregoing is, of course, that Respondent's "adherence" to the successor commercial contract was asserted] y coincidental rather than an acknowledgement of Respondent's obligation to be bound thereby. 17 No matter how Respondent came to pay its commer- cial employees the union negotiated wages and fringe benefits during 1983, it was uncontroverted that during the year its earnings were in a period of rather steep de- cline due to the competition from nonunion electrical contractors in the Denver area. According to Prilika, his company was losing money primarily because "I couldn't successfully compete for the jobs because my labor was too high " The record establishes that, in order to more successfully compete for jobs, Prilika, early in 1983, began discussing with Respondent's employees the possibility of transforming it into a nonunion operation. Thus, Prilika admitted that, "because we could not make any money," he told James Belshe and "a number of" other employees "I am not signatory to contract, and whenever the government job's going to finish . . . we will go open shop." Belshe, who is an inside journeyman wireman and worked for Respondent since April 1980, testified that "on numerous occasions during 1983 he heard Prilika say "it was looking like he was going to have to go" nonunion "because he was going broke." With the above as background, the record reveals that the initial contract Respondent had with the Union re- garding the successor commercial contract was in the form of a copy of a letter dated November 11, 1983, from Heffernan to NECA, reading as follows: The changes to the Denver Inside Electrical Construction Agreement, which were ratified by our respective memberships on August 16, 1983, have been disapproved by the International Office of the IBEW. Therefore, in accordance with Sec- tion 1 03 of the Agreement, these changes are null, void, and without effect. Any provisions of the August 16 changes, which were implemented in anticipation of approval, must be immediately rescinded. Local Union 68 will expect and demand full compliance with all terms and conditions of the Agreement of April 1, 1983. By letter dated November 21, 1983, Prilika replied to Heffernan that he was "mystified" as to why he had been sent a copy of the above letter and asserted that "as your records will reflect, NECA does not act as our col- lective-bargaining representative, for purposes of labor negotiations with the IBEW" and that Respondent was not signatory to the successor commercial contract. On December 1, Heffernan wrote to Prilika that the Union 17 In fact, Prilhka asserted that, not only was Respondent under no duty to apply the terms of the successor commercial agreement to his employees, but also its obligation to even bargain with the Union ceased with the expiration of the 1981-1983 agreement because "they never con- tacted me for any reason, whatsoever " had in its files a Letter of Assent-A that bound Respond- ent to the contract. On December 8, 1983, 7 days later, Prilika responded, sending the following letter to Heffer- nan: This letter is in response to your letter of Decem- ber 1, in which you reference this company having signed a letter of asset [sic] in 1976. If you will check your records, by referring to the minutes of the Labor Management Committee of December 16, 1982, you will see that the letter of assent had been cancelled and the Rocky Mountain Chapter, NECA, no longer represented us for purposes of collective bargaining. The company is desirous of restructuring its wages and fringe benefit programs, to better benefit the employees. As you know, we only have a few electricians working for us. What I would like to do would be to institute a more flexible wage program, having a range from around $10.50 to $20.00 per hour. This would allow management to assess the worth of the individual workmen, and pay them ac- cordingly. In addition, with only a few employees, I would like to review the fringe benefit package. Rather than pay the fringe benefits called for under your collective bargaining agreement with NECA, I think we would be much better off to tailor make fringe benefits to each employee. I would then con- template discontinuing payments to the trust funds. Frankly, Mr. Heffernan, not having heard from you with regard to bargaining for a new contract to replace the one that expired in April of 1982, I simply thought that your union had abandoned rep- resentation of the several electricians which we employ. If, however, it is now your intention to represent our electricians and to bargain towards a new agreement, to be tailor made specifically for this company, will you contact me within ten days of receipt of this letter. If I don't hear from you within that time frame, I'll assume you have no such intentions and this company will begin to take steps to implement the changes outlined above. On December 14, 1983, Heffernan replied, in writing, to Prilika as follows: Your letter, as referenced above, was received by this office on December 12, 1983. I would ask that you review the Letter of Assent A as was forward- ed to you with my letter of December 1, 1983. The last sentence reads as follows: "It shall remain in effect until terminated by the undersigned employer giving written notice to the Rocky Mountain Chapter, NECA, and to the Local Union at least one hundred fifty (150) days prior to the then current anniversary date of the aforementioned approved labor agreement." This is to advise you that this Local Union office has never received a written notice from you, at any time terminating this Letter of Assent . It is our contention, therefore, that you firm is currently 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bound by the April 1, 1983 Denver Inside Electrical Construction Labor Agreement. If you have any questions regarding this matter, please contact Mr. Albert (Bert) Wright in this office. Albert Wright testified that, as a result of the forego- ing exchange of letters, he contacted and arranged a meeting with Prilika and that they met and spoke over breakfast on either January 10 or 11, 1984. According to the assistant business manager, "We did a little small talking . . . . Then I asked him the result of the letters, what his intent was. He advised me he was going to go non-union. I advised him that, in our opinion, he was still signatory to the Letter of Assent-A and the agreement, and, therefore, we would do what we could to stop him from just going open shop." While corroborating that he and Wright spoke, Prilika denied that it was Wright's po- sition that Respondent was bound to the terms of the successor commercial agreement: "I inform Mr. Wright ... that for quite sometime Reliable is not signatory to any local agreement, and we start to argue a little bit about it." According to Prilika, Wright told him that he was trying to strengthen the Union and was unfamiliar with Respondent's problems-"He did not inform me that he still think I'm a member of any agreement, what- soever." Either later that same day, or the next day, Pri- lika wrote the following letter, dated January 11, to Hef- fernan: Frankly, sir, I was somewhat mystified when I read your letter of December 14, 1983. It was com- pletely unresponsive to my letter to you of Decem- ber 3, 1983. As mentioned in that earlier letter to you, NECA, Rocky Mountain Chapter no longer represented us for purposes of collective bargaining. Your labor organization had been notified, and NECA confirmed that notification at the labor man- agement committee meeting of December 16, 1982. Your letter of December 14, 1983 references "the April 1, 1983 Denver Inside Electrical Construction Labor Agreement." I have never seen such an agreement, and certainly your labor organization has never furnished the same to me, with or with- out any request that I execute the same on behalf of this company. It is this company's firm position that there is no collective bargaining agreement between us and your labor organization. The last one in effect was the one which expired April of 1983. (I am sorry for the typographical error which appeared in my letter of December 8, 1983, referencing an April, 1982 date). Under the circumstances described in our earlier correspondence, I think it incumbent upon this company to implement the changes indi- cated in the December 8, 1983 letter at the earliest possible time. I find this necessary, not only because of economic conditions but because of your appar- ent refusal to negotiate a new labor agreement. Ac- cordingly, unless I hear from you by Wednesday, January 18, 1983, that you are amenable to negotiat- ing a new agreement, I will presume that you have no intention of so negotiating a new agreement and will forthwith implement those changes as set forth in my letter of December 8, 1983. On either January 12 or another day in mid-January 1984, Prilika held a meeting with Respondent's journey- men wiremen, both commercial and residential,18 in the Company's office. With Prilika, representing manage- ment, were the estimator, Richard Harding, and the serv- ice manager, Bob Steward. The most complete account of what was said during this meeting is that of Prilika. According to him, "I told them the company's financial status. I disclosed everything to them. I told them the company cannot make it with its structure right now. Either we do make some changes or the company will go broke." Thereupon, Prilika turned to the subject of the Union. "I informed all people that worked for me that I tried to bargain with [the Union] for many months and exchanged so many letters, for which some of them I have response and the others, I don't. We've been working . . . under no contract for two years . . . . I in- formed them . . . that [the Union] will not respond to me and negotiate in good faith . . . . I say . . . we were going to become open shop . . . . I think somebody make remark, Is this nonunion, and I said, Well, if that's what you call nonunion, that's what is nonunion."19 Next, Prilika was asked by employees what he had to offer to them, and "I tell everbody what I'm going to pay per hour, what kind of benefits I'm going to give."20 is The record discloses that residential wiremen are considered to be less skilled than commercial wiremen and that the residential contractual level of wges and fringe benefits is lower than that of the commercial contract The record further discloses that the Union operates one hiring hall for both classifications-with journeymen dispatched from separate out-of-work lists Examination of G C Exh 9, the December 1983 report of fringe bene- fit contributions to the trust funds created under the commercial contract, discloses there is a space on it for the amounts of union dues deducted for the listed employees Those employees , for whom dues were deduct- ed, I shall also presume them to be union members given the contractual union-security clause Based on this evidence, I find that, as of January 12, 1984, Respondent employed the following members of the Union as commercial journeymen wiremen and apprentices Bruce Knoke, Kim Maclntyre, Dale Wittwer, Bob McFarren , and Steve Godwin Examination of G C Exh 4, the December 1983 fringe benefit report for the residential wiremen, discloses that, as of the above date, Respond- ent employed the following union members as residential journeyman wiremen and apprentices Jeffrey Slavsky, Craig Terry, Arthur Valdez, and Napoleon Williams Respondent employed one other individual , Brian Regg The record is unclear as to his job duties or whether he was a union member Finally, while the record is not conclusive, it appears that Respond- ent's wiremen were all hired for longer terms than for any one particular job and that, therefore, it had a fairly stable work force is Prilika was contradictory about what he told the employees the future status of Respondent would be Thus, earlier in his testimony, Pn- lika was asked if he told the employees that he was going nonunion and answered "I believe I did " Later, he was asked the same question again and answered "Yes " 20 Prilika told the employees he would pay them $15 per hour, a rate lower than the commercial contract wage rate , pay for health insurance for them but not their families, cover each with a $10,000 life insurance policy, and provide 1 week of paid vacation after the first year and 2 weeks thereafter He also mentioned the possibility of profit sharing but said there would no longer be a pension plan as under the commercial contract. RELIABLE ELECTRIC CO. 843 At this point, "everybody was naming one contractor .. . Simmons Electric, that he promised everbody union wages as long as they resigned out of the union and stayed with him. After a period of time . . . Mr. Sim- mons reneged his word and cut everbody's wages . . . . So everybody asked me if I'm going to offer something, would I put it in writing so this way we can both sign and nobody going to say that they've been cheated." He replied that he would do so. The several employee wit- nesses who testified about this meeting generally gave less substantial versions of what was said than did Pri- lika. Initially, five witnesses (Arthur Valdez, Jeff Slavsky, Bob Holcomb, Bill Jackson, and Bruce Knoke) corroborated Prilika that he began describing how finan- cially the Company "was in pretty poor shape" and unable to compete with nonunion contractors for jobs. Regarding what was said about Respondent's future status, witnesses Slavsky, Belshe, Jackson, Knoke, and Kim Maclntyre testified that Prilika announced that Re- spondent would become nonunion; Valdez stated that Prilika said he would no longer employ "Local 68 hands"; and Holcomb remembered him as saying Re- spondent would have to become "non-signatory." Also, all the employee witnesses recalled that Prilika discussed wages and fringe benefits at the meeting. Several could remember nothing specific, with Belshe recalling that Prilika had, as yet, nothing "concrete" in mind. MacIn- tyre and Knoke testified that Prilika specified a wage rate of between either $10.95 or $12 per hour and $15 per hour; Slavsky, Knoke, and ]Maclntyre remembered Prilika discussing some sort of a profit-sharing arrange- ment; and Knoke and Maclntyre stated that Prilika of- fered health insurance coverage to the employees but not that set forth in the Union's commercial contract. More- over, several employees remembered that Simmons Elec- tric was discussed at the meeting, with Belshe recalling that contractor raised with regard to "how employees were being treated after they went nonunion." In this context, a written contract was also discussed, but no employee witness recalled what was said with any speci- ficity. Finally, Knoke recalled that Prilika said he wanted them to continue paying their union dues. In any event, the record establishes that Prilika seized on the opportunity created by Respondent's employees' nonspecific request21 that he memorialize his "open shop" wage and fringe benefits package and created nothing less than formal employment contracts for each journeyman wireman employee, the purpose of which as- sertedly was merely to comply with the above employee request. The form of the document, consisting of two pages, was as follows: 21 James Belshe testified that between January 1, 1984, and the mid- January employee meeting, he spoke to Prilika and that the latter "had told me that there was going to be contract When he got to the language that he wanted in the contract and he decided to go non-union, then it was either going to be sign it or no longer work for Reliable " Belshe further asserted that what Prilika wanted to do was common knowledge among the employees prior to i he employee meeting (page 1) EMPLOYMENT AGREEMENT THIS AGREEMENT was made this 23rd day of January, 1984, by and between RELIABLE ELEC- TRIC CO., INC. (hereinafter referred to as "Em- ployer") and whose address is (hereinafter after referred to as "Employee"); and WHEREAS, Employer desires to employ Em- ployee and Employee desires to be hired by Em- ployer, the parties have executed this Agreement setting forth the terms and conditions of such em- ployment. 1. Duties of Employee. Employee shall be em- ployed by Employer in the following capacity: Journeyman Electrician, Foreman on job per job basis which duties shall include such other and fur- ther responsibilities as may be designated from time to time by the Board of Directors and the Officers of Employer together with duties designated by the foreman or other supervisory personnel of Employ- er. (Strike if inapplicable.) It is a condition of Em- ployee's employment by Employer that Employee have and maintain a valid Electrician license issued by the State of Colorado. All expenses incurred in obtaining or renewing such license shall be borne solely by Employee. 2. Compensation to Employee. (a) Employee shall be compensated at the rate of $15.00 per hour for each hour that Employee is engaged in the perform- ance of the above described duties, together with such production incentive programs, if any, that may be agreed upon, in writing, between Employer and Employee from time to time on a job by job basis. (b) Employer shall maintain health insurance under a group health and accident insurance plan available through New York Insurance for Employ- ee only. Employee may, but is not obligated to, elect to have such benefits available to his qualified dependents and in such an event, Employee shall pay the difference between the cost of such health and accident insurance for Employee only and the cost of such insurance being made available to Em- ployee and Employee's qualified dependents. (c) Employee shall be entitled to one (1) week (five working days) paid vacation following the first twelve (12) months of employment by Employee. Following twenty-four (24) months employment of Employee by Employer, Employer shall be entitled to two (2) weeks (ten working days) paid vacation. (d) Employer will pay, on behalf of Employee, the premium for a life insurance policy insuring the life of Employee in the face amount of $5,000.00, provided Employee can qualify for such insurance under the terms and conditions of the policy avail- able from New York Insurance, as the insurance carrier. 3. Responsibility for Employer's Property. Employ- ee shall acknowledge receipt of all tools and equip- 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment belonging to Employer and delivered into the custody or possession of Employee. Employee will from time to time, and at the request of Employer or, at the termination of Employee's employment, return such tools and equipment to Employer in the same condition as the condition upon their reciept by Employee, ordinary wear and tear expected, and if Employee fails or refuses to return such tools or equipment to Employer, Employer, in addition to all other remedies available to it, may deduct the reasonable cost of the replacement of such tools and equipment from any monies then owed to or due Employee. (page 2) 4. Term of Agreement. This Agreement may be terminated by either party, with or without cause, upon 5 working days written notice to the other party. 5. Confidentiality. All bids, proposals, rates, draw- ings, plans, specifications, designs, and similar items prepared by or on behalf of Employer shall remain the sole and exclusive property of Employer and Employee agrees not to divulge the contents of any such materials to any third person during the term of Employee's employment hereunder or for a period of 180 days thereafter. Employee acknowl- edges that damages for the violation of the cov- enants and agreements contained in this Paragraph 5 may be inadequate and that Employer may, in addi- tion to all other remedies, seek declaratory, injunc- tive, or other equitable relief to prevent the viola- tion of the covenants and agreements of this Para- graph 5 by Employee. 6. Entire Agreement. The parties acknowledge that this Agreement constitutes the entire agreement between the parties and supersedes all prior agree- ments, written or oral, of every type and nature, under which Employer and Employee may have been associated or under which Employee may have performed services for Employer prior to the date hereof. 7. Applicable Law. This Agreement is made and will be performed within the State of Colorado and shall be interpreted and construed according to the laws of the State of Colorado. 8. Notice. Any notice required or permitted to be given under this Agreement may be delivered to the intended recipient of the notice personally or mailed to the intended recipient by Certified mail, postage prepaid, return receipt requested. Any notice so mailed will be deemed effective three (3) days from the deposit of such notice in the United States mails. Reliable Electric Co., Inc. By Employee Employer Prilika unveiled the new employment agreements on the morning of Tuesday, January 24, which was a payday. He gave a blank copy to James Belshe, instruct- ing him to show it to the other members of his crew (Holcomb, Bob McFarren, Steven Goodwin, and two apprentices, Napoleon Williams and Dale Wittwer). Later that day, as each employee came to the office to pick up his paycheck for the previous week, Prilika met with him, formally presenting the contract. As to wheth- er he required employees to sign in order to continue working for Respondent, Prilika stated, "If they were going to work for the company, I tell them to sign it. I didn't tell them; I asked." Later, he added, "They prob- ably didn't have to sign but I didn't want any disagree- ment out of it . . . later . . . that I didn't pay what I promised them to pay." The record establishes that, after being presented with the contract, only three employees (Steve Godwin, Bob McFarren, and Brian Regg) chose to continue working. As to the meetings with the com- mercial wiremen , Knoke and Jackson together spoke to Prilika. According to Knoke, the latter handed each a copy of the contract, said "here's what I'm offering you," and mentioned that each would receive $15 per hour, health insurance for himself, and a $5000 death benefit. Knoke responded "that I could not sign this con- tract, and he said, Well, then you quit." Knoke repeated that he could not sign, "that he hired me out of the hall at a given wage, given benefits, and such." Prilika re- plied, "I'm no longer union, I don't recognize the Union, and if you don't sign any contract, you have to quit." He added that if Knoke desired to remain union, "go down there and let the union support [you]." Knoke insisted that he was not quitting, and Prilika reiterated that he would have to sign the contract. Finally, the latter said he had 30 applicants for Knoke's job, and "I don't have time to argue with you. If you don't want to sign my contract, I'm firing you." Knoke agreed that such was Prilika's right, and the company president instructed his secretary to prepare two checks22 for Knoke.23 Accord- ing to Jackson, Prilika told them, "Okay, we're going nonunion . . . as of now; and we either sign his contract or we're terminated. And we looked the contract over I told Tony, well, I'm going to have to go with the local; that's who I'm hired out with." As did Knoke, Jackson received two checks that day.24 While not testi- fying specifically to his conversation with Knoke, Prilika testified that he asked every employee "to stay with me, please" and denied mentioning the Union in any context. As to Jackson, Prilika stated, "He just told me that he have many years in the local and he doesn't know what 22 The first check was for the previous workweek and was computed at the new commercial contract wage rate , a deduction was made for Knoke's union dues The second check was for the 2 days of work that week and was computed at the proposed $ 15-per-hour wage rate No dues deduction was made There is no dispute that Prilika ceased making contributions to the Denver Inside Electrical Construction contractual fringe benefits trust funds after December 1983 23 While Knoke agreed that Prilika did not require that he give up his union membership, such would have been the practical result had Knoke agreed to work for Respondent under the proposed nonunion conditions. Thus, absent resignation, he would have been subject to internal union disciplinary action had he retained membership and worked for a non- union contractor . Given his admitted long-time membership in the Union, I believe Pnlika knew this 24 See fn 22 above This same pattern was repeated for all the alleged discrimmatees RELIABLE ELECTRIC CO he s going to do .... I told him . . . whenever he make a decision, come back to me."' He never did. Kim Maclntyre testified that on entering the company office to pick up his paycheck, he was told to speak to Prilika. As he entered the latter's office, he was handed a copy of the employment contract. Prilika instructed him to read it, "and that I had to sign it before I could work again . . . . I told him I had to think about it." MacIn- tyre had the impression that Prilika wanted him to remain as an employee. According to the witness, having kept the copy of the contract in order to consider ac- cepting or rejecting it, he took it to the Union's office and spoke to a business agent about it. The next day, he returned to Respondent's office and, as "I'd lose all my union benefits," told Prilika he could not sign the con- tract. Prilika commented "that he didn't care if anyone signed it or not anymore."25 The latter testified that Maclntyre gave no reason for refusing to continue work- ing, saying he desired an opportunity to speak to his wife and the Union before making a final decision. Maclntyre testified further that Prilika contacted him twice with regard to reversing his decision and that he told Prilika he could not work for Respondent as it did not have a contract with the Union. Bob Holcomb testified that he also was told to speak to Prilika in the latter's office and that "Mr. Prilika had a contract, some kind of a .. . form that he hoped some of his people would sign and stay with him." According to Holcomb, however, Prilika never showed it to him, saying "You don't intend to sign this, and I said, no."26 Asked why he refused to execute the contract, Holcomb replied that " as a union man, I al- ready have a contract with Local 68, so to speak, and I didn't want to corrupt one with the other." With regard to this alleged discriminatee, Prilika testified, "Mr. Hol- comb [said] . . . that he is close to his pension and he only had a couple of years to go. He had too much to lose apd he would have to quit . . . that he better stick with the union." James Belshe, who had been given a copy of the em- ployment contract that morning, testified that he spoke to Prilika during the afternoon of January 24 and, refer- ring to said agreement, the latter said, "I suppose you're not going to sign this either; and I said, no."27 Prilika then requested that Belshe work for at least another week in order to train new people, and Belshe agreed.211 Dale Wittwer was employed as an apprentice commer- cial wireman and had not been present at the mid-Janu- ary employee meeting; however, he had been told that Respondent would become a nonunion contractor and was offering a wage rate of $15 per hour with no fringe benefits. Based on what he heard, Wittwer knew he could no longer work for Respondent because employ- ment under such circumstances could "jeopardize my 25 Knoke received his usual paycheck the previous day As he left this day, Knoke was given a check for his days of work that week at the re- duced $15 wage rate 26 Holcomb was aware of the contents of the contract, having been shown a copy earlier that day by Belshe Like the others, he received two paychecks that day, the second at the reduced wage rate 27 Asked why, Belshe replied , "Because I'm a member of 68, that's why " 28 Advised to stop, Belshe worked only through the end of that week, January 27 845 getting a license and my education." Further, Wittwer was convinced that the above working conditions meant that Respondent would no longer support the Union's apprentice program and that, therefore, "there wasn't any place for me in this company anymore." According- ly, on January 24, which was payday, Wittwer walked into Prilika's office "and I asked him for a layoff and he said he had to talk to his lawyer." They continued speak- ing, and Prilika "talked a little bit about why he had to go non-union; he couldn't afford not to, that he already had applications for people with masters licenses who were willing to work for $10.00 per hour." Wittwer left the office but returned the next day. Prilika was not there but his secretary told Wittwer that Respondent could not lay him off. According to Wittwer, he be- lieved he was no longer an employee that day. Finally'29 with regard to the commercial wiremen, Prilika testified that Steve Godwin and Bob McFarren, both members of the Union, chose to continue their employment with Re- spondent after January 24, that both met with him on January 24 in the same manner as the other commercial wiremen, and that McFarren continued in Respondent's employ despite not having executed an employment con- tract. With regard to the four residential wiremen employed on January 24,30 the record discloses that Prilika met with them as he did with the commercial wiremen that day. Arthur Valdez testified that he was called into the company president's office, "and he had a contract that he handed to me, and he asked me to read it . . . and if I agreed with what was there, to sign it to be employed by him." He examined the document31 and refused to exe- cute, saying "that it was in conflict with my union affili- ation." Prilika replied that Valdez quit; the latter dis- agreed, saying he would just cease working for Respond- ent and would not sign the contract. During cross-exami- nation, Valdez admitted that Prilika did ask him to con- tinue working. Jeff Slavsky, who testified that Prihka never showed him a copy of a contract, stated that the latter "asked me whether I was going to sign the new contract, and I said, no." Asked why, the witness an- 29 Commercial wireman and alleged discrimmatee Gilbert Cito did not testify and there is no evidence as to the circumstances of his departure from Respondent's employ 31 Received into evidence as G C Exhs 5(a) through 5(d) are the 1979-1980, 1981, 1982, and 1983 Denver Residential Wiring agreements While the record reveals that, at the same time Prilika executed G C Exh 2, he executed a Letter of Assent-A for the residential contracts, there is no allegation in the amended complaint that, at any material time, Respondent and the Union had a collective-bargaining relationship cover- ing Respondent's residential wiremen or that Respondent was bound to any of the aforementioned contracts Further, while the record estab- lishes that Respondent apparently paid its residential employees at the residential contract wage rates , paid into the residential wiring contrac- tually established fringe benefit trust funds on behalf of its residential wiremen through December 1983, and utilized the contractually estab- lished hiring hall, there is no allegation in the amended complaint that Respondent violated Sec 8(a)(1) and (5) of the Act by its conduct de- scribed herein vis-a-vis the above collective-bargaining agreements This is the case notwithstanding that counsel for the General Counsel was af- forded the opportunity to further amend the complaint-and chose not to do so 3' The employment contracts offered to the residential wiremen were identical to those offered to the commercial wiremen except that the wage rate was approximately $11 per hour 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD swered, "At the time I was a dues paying member of Local 68 and by signing that contract, would have brought me up on charges through the Local." Napoleon Williams, an apprentice residential wireman, like Dale Wittwer, had not been invited to the mid-January em- ployee meeting but was advised later that Respondent's intent was to become a nonunion contractor. Therefore, he contacted a member of the apprentice board and was told to do nothing before checking back if Respondent did become nonunion. According to Williams, while working on January 24, all the employees were talking about an employment contract but he never saw it. Later that day, he spoke to Prilika in the company office, and the latter said he wanted Williams to read it and com- ment later. Williams examined the document, which was an employment contract, and said that he could not sign it based on his prior instructions from the Apprentice Board member. Prilika asked Williams to continue work- ing and when the latter refused, Prilika said, "Okay, you got to do what you got to do" and, referring to the con- tract, said "this is what it is." Finally, with regard to the residential wiremen, Craig Terry did not testify and no reason was offered for his absence. Consequently, there is no record evidence as to his departure from Respond- ent's employ. B. Analysis The amended complaint alleges that Respondent vio- lated Section 8(a)(1) and (5) of the Act by repudiating and refusing to adhere to the successor Denver Inside Electrial Construction collective-bargaining agreement, effective April 1, 1983; unilaterally reducing the wage rates of its employees covered by the contract and ceas- ing to make contributions on their behalf to contractually established fringe benefit trust funds; unilaterally imple- menting health and life insurance plans for the employ- ees, and bypassing the Union and dealing directly with the employees regarding their terms and conditions of employment. The amended complaint also alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging both its commercial and residential wire- men employees. Respondent makes several alternative ar- guments that its conduct herein was not violative of Sec- tion 8(a)(1) and (5) of the Act. With regard to the 8(a)(1) and (3) allegations, Respondent argues that no construc- tive discharges occurred inasmuch as the institution of new terms and conditions of employment was not unlaw- ful and there exists no evidence of unlawful animus here. Specifically as to the residential wiremen, Respondent contends that as there are no allegations in the amended complaint concerning its obligation to bargain or abide by a collective-bargaining agreement concerning the em- ployees, no 8(a)(1) and (3) violation may be found as to them. Finally, it is alleged that no unfair labor practices may be found here as such must be predicated on the finding of an earlier unfair labor practice that occurred beyond the 10(b) statute of limitations period. Initially, with regard to the 8(a)(1) and (5) allegations of the amended complaint, I note that it is alleged in the amended complaint that , at all times, Respondent has been an employer-member of a multiemployer bargaining group32 that has designated NECA to act as its repre- sentative for purposes of collective bargaining with the Union as the exclusive representative, within the mean- ing of Section 9(a) of the Act, of the employees of the employers who perform inside electrical construction work and that a bargaining unit encompassing all full- time and regular part-time employees is appropriate within the meaning of Section 9(b) of the Act. In its answer, Respondent denied the majority status and ap- propriate unit allegations and asserts that the General Counsel has failed to establish that the Union ever achieved majority status among the aforementioned com- mercial wiremen employed by the multiemployer group.33 In analyzing the issue of the Union's majority status among the employees of the multiemployer bar- gaining unit, it is first necessary to determine whether Respondent, at all times, remained a member of the mul- tiemployer group. As to this, there is no dispute that Re- spondent became a member thereof in 1976 when Prilika executed General Counsel's Exhibit 2; however, Re- spondent's counsel argues that no finding is possible that Respondent was bound to group bargaining or the results thereof beyond the term of the April 1, 1976, through March 31, 1978 commercial agreement inasmuch as the plain wording of the Letter Assent-A makes it clear that the expressed authorization to NECA extended for the effective term of the existing commercial contract and as, in any event, Business Manager Ligino represented to Prilika, thereby inducing him to execute the document, that the authorization of NECA was just for the duration of the existing agreement. As to the former argument, I note that to find merit to this contention would necessar- ily render meaningless the provision requiring a signato- ry contractor give 150 days notice in order to terminate the authority granted to NECA and that, in several cases, the Board has concluded that identical, ois nearly identical, letters of assent bind the signatory contractor to succeeding contracts. Nelson Electric, supra at 550; McCormick Electrical Construction Co., 240 NLRB 418, 424 (1979) H. S. Brooks Electric, 233 NLRB 889, 894 (1980). Regarding the uncontroverted representations at- tributed to Ligino by Prilika, I believe that such, never- 32 The Letter of Assent-A does not, I believe, merely demonstrate an intent to be bound by group bargaining, rather, the signatory contractor declares its intent to bind itself to group bargaining Further, the wording of it does not merely adopt the correct collective-bargaining agreement, for such specifically authorizes NECA to act as the contractor 's designat- ed representative Hence, the signers of the Letter of Assent-A, I further believe, constitute a multiemployer bargaining association , represented by NECA Nelson Electric, 241 NLRB 545, 551 fn 19 (1979). This is entirely apart from membership in NECA, itself as Although the appropriateness of the multiemployer unit was denied by Respondent, counsel's postheanng brief arguments are devoted to the issue of majority status In any event, analysis of the successive commer- cial contracts discloses that the NECA-represented employers extended recognition to the Union as the representative of those employees per- forming inside electrical construction work and that the contracts cover those classifications of employees performing such work. Although no specific evidence as to the appropriateness of the unit was adduced at the hearing, based on the record as a whole, I find that the unit encompass- ing all full-time and regular part-time employees performing the above- described work of employees, who have designated NECA to be their bargaining representative , is appropriate for purposes of collective bar- gaining within the meaning of Sec 9(b) of the Act Nelson Electric, supra RELIABLE ELECTRIC CO theless, necessitates a resolution of the credibility of Re- spondent's president. Notwithstanding the unexplained failure of Ligino to testify and the permissible inferences flowing therefrom, I cannot credit Prilika in this regard. Thus, his testimonial demeanor was that of a decidedly disingenuous witness, one who, I believe, appeared fully capable of fabricating testimony to buttress his position. His attribution of certain statements to Ligino was, I fur- ther believe, an instance of such. Therefore, I conclude that the effect of Prilika's execution of a Letter of Assent-A on June 8, 1976, was to bind him to group bar- gaining for all future commercial contracts unless, in compliance with Board law, he withdrew from the group. In this regard, of course, Respondent contends that it withdrew from multiemployer bargaining during the summer of 1982 and, therefore, was not bound to the re- sults of negotiations for a successor to the April 1, 1981, through March 31, 1983 commercial contract. Initially, I note that if a proper withdrawal was effectuated it is not in dispute that such was prior to the commencement of the above negotiations. The Board law on this is of long- standing duration: prior to the start of negotiations, with- drawal can only be effected by an unequivocal written notice, both to the multiemployer group and to the union, expressing a sincere intent to permanently aban- don the multiemployer unit and to pursue negotiations on an individual employer basis. Groton Piping Corp., 246 NLRB 99, 101 (1979); Acme Wire Works, 229 NLRB 333, 335; Retail Associates, 120 NLRB 388, 395 (1958). Here, Prilika admitted that Respondent adhered to the April 1, 1978, April 1, 1980, and April 1, 1981 (at least through early 1982) commercial contracts, based on its member- ship in NECA and was uncontroverted that he orally sought to withdraw from NECA membership-34 during the winter of 1982. However, with regard to withdraw- ing from multiemployer bargaining, notwithstanding the apparently corroborative testimony of Massey, I do not credit the assertions of Prilika that he gave written notice to both NECA and the Union of Respondent's withdrawal of its prior authorization to NECA to bar- gain on Respondent's behalf and of its intent to bargain directly with the Union. Besides my belief that Prilika did not seem to be an honest and forthright witness, three contributing factors are of significance to my above conclusion. First, and of critical significance, is the fact that neither NECA nor the Union could locate such a document in its files. Surely, if the letter existed, at least one of these entities would have retained it in a file. Second, Prilika admitted that he did not have a copy of the document. This admission assumes the highest signifi- cance given Prilika's further admission that Respondent customarily retains copies of all correspondence. In this regard, I found rather dubious Prilika's excuse for the "loss" of this letter-it must have been misplaced during the relocation of Respondent's office facility-given Pri- lika's later admission that the moving of Respondent's 94 As NECA's membership was not, I believe, coextensive with mem- bership in the NECA-represented multiemployer bargaining group, resig- nation from NECA membership would not, alone, have fulfilled Re- spondent's obligation under Retail Associates, supra 847 office occurred early in 1982-or prior to the drafting of the alleged letter. Finally, I note that, in his correspond- ence with Union Official Heffernan during November and December 1983, while referring to the fact that the Union had been notified of Respondent's asserted cancel- lation of the 1976 Letter of Assent-A, Prilika referred not to the "copy" of the letter to NECA but rather to the minutes of the meeting at which Massey told the Union that NECA no longer represented Respondent. As he specifically told Heffernan to "check your records," he would surely have advised the former to reread the NECA letter-if such, in fact, existed. 3 s Based on the foregoing factors, I conclude that Prilika, acting on Re- spondent's behalf, never mailed any document to NECA, with a copy to the Union, in July or August 1982, in which he rescinded Respondent's prior authorization to NECA to represent it in bargaining with the Union, and that, until Respondent's business became unprofitable in 1983, always intended to be bound by the NECA negoti- ations. As to the conduct of R. L. Massey in including Respondent in the list of contractors for whom NECA was no longer bargaining, I think that such was a mis- take by the former NECA executive director, perhaps a product of his oral communications with Prilika. With regard to his testimony, while finding Massey to have been an honest witness, I am of the view that he suffered from faulty recall, undoubtedly being the victim of his own prior conduct (the above announcement to the Union) and contacts with Respondent. The import of these findings is manifest: having failed to provide the requisite notice to both NECA and to the Union, Re- spondent, therefore, never withdrew from the NECA- represented multiemployer bargaining group prior to the commencement of negotiations between the association and the Union. Accordingly, the appropriate unit for bargaining herein has always been the multiemployer unit and never became one limited to the commercial employees of Respondent. As to majority status in this unit, the amended com- plaint alleges that the Union's exclusive representative status has existed from June 1976-when Prilika execut- ed the Letter of Assent-A that bound Respondent to the existing commercial agreement. However, at the hearing, counsel for the General Counsel offered not one scintilla of evidence to prove this allegation and, in her posthear- ing brief, merely asserts that "the Union represented a majority of employee within that unit" and cites no Board cases to support her statement. Although unstated, given the fact that Respondent's 1976 Letter of Assent-A was executed during the terms of an existing collective- bargaining agreement in which recognition was granted to the Union as the exclusive representative of the inside electrical construction employees of the employer-mem- bers who were represented by NECA, counsel obviously relies on the applicable law, regarding a union's majority status, that "in the normal case, an employer-respondent in an 8(a)(5) case may not go [beyond the 10(b) 6-month 85 Based on my belief that his testimony is not worthy of belief, I do not credit Prilika's assertion that former Union Business Manager Heffer- nan admitted he was aware of the disputed letter I do so notwithstanding the unexplained failure of Heffernan to testify about the allegation 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD statute of limitations period] to show that a contract, ap- parently regular and continuing on its face was executed at a time when the union was not the majority represent- ative. The reason for this rule is that a contract, regular on its face, carries with it an irrebuttable presumption . . . of continuing majority status of the union." R. J. Smith Construction Co., 191 NLRB 693, 694-695 (1971), enf. denied 480 F.2d 1186 (D.C. Cir. 1973); Barrington Plaza & Tragniew, Inc., 185 NLRB (1970). Further, fol- lowing expiration of the contract, this presumption con- tinues, although rebuttable. However, the burden of re- butting it rests on the party who would do so; the assert- ing party must establish that the labor organization does not, in fact, represent a majority of the bargaining unit employees, or that, on the basis of objective consider- ations, it had a good-faith reasonable doubt as to the labor organization's continuing majority status. Abbey Medical/Abbey Rents, Inc., 264 NLRB 969, 977 (1982); Towne Plaza Hotel, 258 NLRB 69, 76 (1981). Respondent offered no evidence with regard to its contentions as to the Union's lack of majority status. Analysis of the entire record herein convinces me that Respondent, as well as the other NECA-represented em- ployer-members party to the successive commercial con- tracts, are engaged in the building and construction in- dustry. Thus, both Prilika and Respondent's employees testified that Respondent was engaged in new electrical construction wiring work at the Federal Government's Rocky Flats project; the various commercial agreements that are part of the instant record refer to work normally considered as construction work; and, most significantly, the commercial contracts contain a union-security clause requiring membership after the seventh day of employ- ment, which type of clause is countenanced only in the building and construction industry. R. J. Smith Construc- tion, supra at 694. This finding assumes critical impor- tance in view of the contention, in the posthearing brief of counsel for Respondent, that, at the time Prilika exe- cuted the 1976 Letter of Assent-A that bound him to the then-existing Denver Inside Electrical Construction con- tract, Respondent became party to an agreement, the va- lidity of which was covered by the precepts of Section 8(f) of the Act36-that is, recognition was extended 36 Sec 8(f) of the Act reads, as follows (f) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged in the building and construction industry with a labor organization of which building and construction employees are members (not estab- lished, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the begin- ning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agree- ment specifies minimum training or experience qualifications for em- ployment or provides for priority in opportunitiess for employment based upon length of service with such employer, in the industry or in the particular geographical area Provided, That nothing in this therein to the Union as the exclusive representatives of their inside electrical wiremen employees by the employ- er-members of the NECA-represented multiemployer bargaining group at a time when the Union's majority status had not, as yet, been established under the provi- sions of Section 9 of the Act.37 Based on the inherent nature of relationships in the building and construction industry and on the fact, as presumed by Congress when it enacted Section 8(f), that labor agreements in this in- dustry often are-and by necessity must be-concluded before contractors have hired any workers, there is a high probability that the 1976 commercial contract was, indeed, an 8(f) contract and, in any event, I will not pre- sume that the agreement, and the successors thereto, even bestowed a 9(a) majority representative status on the Union.36 Such is the correct view; for the above-de- scribed normal Board majority status presumptions do not apply to building and construction industry contracts valid only under Section 8(f) of the Act. Id. at 695. Therefore, absent any record evidence of majority status, I cannot find that the Union enjoyed an irrebuttable pre- sumption of majority status in the multiemployer bar- gaining unit based merely on the fact that the 1976 com- mercial contract was in effect at the time Respondent en- tered into the applicable Letter of Assent-A. In R. J. Smith Construction, the Board considered alle- gations that an employee, in the context of an 8(f) con- tract, had violated Section 8(a)(1) and (5) of the Act by making unilateral changes in the wage rates of its em- ployees. The Board concluded that Congress enacted Section 8(f) of the Act to "immunize" building and con- struction industry employers and unions from the pre- cepts of Section 8(a) and Section 8(b) of the Act when they entered into prehire agreements , that the testing of the union's majority status could be done at any time after employees are hired, that the limitations of Section 10(b) of the Act do not restrict an inquiry into whether a Section 8(f) or a Section 9 relationship exists in any par- ticular case, and that, as stated above, the normal majori- ty status presumptions do not apply in an 8(f) context until actual proof of a union's majority status is estab- lished. The Supreme Court, in Iron Workers Local 103 (Higdon Contracting Co.), 434 U.S. 335 (1978), specifical- ly approved of the Board's R. J. Smith Construction de- subsection shall set aside the final proviso to section 8(a)(3) of this Act Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e) 37 I note that there had existed, at least, a 25-year bargaining history between NECA and the Union prior to the April 1, 1976 commercial contract As counsel contends only that this particular agreement was an 8(f) contract, I need not, and do not, consider whether the original com- mercial agreement and its successors were also 8 (f) contracts 38 In this regard, I note that in Carmichael Construction Co, 258 NLRB 226 (1981), the Board considered, as a factor in establishing a union's majority status, that there was no record evidence that the origi- nal agreement, or any successor thereto, between the employer and the union was an 8(f) contract or that the union did not enjoy majority sup- port prior to the execution of the contract or subsequently However, this argument appears to me to be dictum inasmuch as the Board specifically found the employer to have "conceded the majority status of the union" prior to the refusal to bargain Id at 226 fn I Therefore , absent a more definitive Board statement in this area, my view of the probability of an initial 8(f) relationship herein has not been weakened RELIABLE ELECTRIC CO. 849 cision, adopting the conclusion of the latter that there can be no "Section 8(a)(5) bargaining order against an employer refusing to abide by a 8(f) Section contract unless the complaining union can demonstrate its majori- ty status in the unit." Higdon Contracting Co., supra at 344. The court further concluded "that when the union successfully seeks majority support, the prehire agree- ment attains the status of a collective-bargaining agree- ment executed by the employer with a union represent- ing a majority of the employees in the unit." Id. at 350. As to how a union demonstrates that it has attained ma- jority status after an initial 8(f) contract, the Board, in Precision Striping, 245 NLRB 169 (1979), stated that "where a union, originally recognized under Section 8(f), subsequently achieves status among employees who make up a permanent, stable work force, or among em- ployees employed at a particular jobsite, `the employer is then under the statutory duty to recognize and bargain with the union as the employees' exclusive representa- tive."' With whom does the burden of proof lie to allege and establish that 1976 and succeeding NECA-Union com- mercial contracts are or are not 8(f) agreements? In my view, the burden resides with the General Counsel to es- tablish that a collective-bargaining agreement, obviously between parties engaged in the building and construction industry, is or is not an 8(f) contract, that the involved Union represented a majority of the bargaining unit em- ployees prior to or during the existence of an initial con- tract, or that the Union achieved majority status at a later date. This conclusion is buttressed by the recent Board decision, Stine Scovil Construction Co., 269 NLRB 465 (1984), in which the Board denied the General Counsel's motion for summary judgment in a refusal-to- bargain case involving an employer who obviously worked in the building and construction industry, stating, "We note that the complaint fails to establish, by allega- tions or statements of fact, information necessary to de- termine that the Respondent has violated Section 8(a)(1) and (5) of the Act. Absent from the complaint are allega- tions or statements of fact that the union is the lawful representative of the Company's employees under Sec- tion 9(a) of the Act; that the agreement between the par- ties is or is not an 8(f) contract; that describe article 15 and its lawfulness under Section 8(e)'s proviso." Id. at 465, 466. Thus, the Board was unwilling to presume that the contract was not an 8(f) agreement and, even absent an answer, placed the burden of proof on the General Counsel, where the burden to establish the existence of unfair labor practices normally lies, to establish this fact. In order to meet its burden in this case, it is not enough for the General Counsel to merely rely on the successive commercial contracts after 1978, each of which contains a union-security clause and an exclusive hiring hall pro- vision inasmuch as the Board stated in Carmichael Con- struction Co., 258 NLRB at 226 fn. 1, "we do not rely on, and hereby disavow, the Administrative Law Judge's finding that `[t]he execution of the succeeding contracts makes Section 8(f) irrelevant and, therefore, raises the presumption that the Union was the majority representa- tive of the unit employees."' Rather, I believe, counsel for the General Counsel was faced with the burden of specifically pleading in the amended complaint that the April 1, 1976 commercial contract was not an 8(f) agree- ment, making the normal majority status presumptions applicable here, or conceding in the amended complaint that the 1976 commercial contract was an 8(f) agree- ment, of proving that the Union achieved majority status either during it or at a subsequent time, transforming whatever commercial agreement that was in effect at the time into the status of a valid collective-bargaining agreement. Higdon Contracting Co., supra at 350. Offer- ing no evidence as to majority status, the General Coun- sel failed to meet its burden of proof in this case and, as the April 1, 1976 commercial contract, and the succeed- ing commercial agreements, more likely than not were 8(f) contracts, no 8(a)(1) and (5) violations may be found.39 Accordingly, I shall recommend that the 8(a)(1) and (5) allegations of the amended complaint be dis- missed. Turning to the 8(a)(1) and (3) constructive discharge allegations herein and with regard to the commercial wiremen employed by Respondent, counsel for the Gen- eral Counsel conceded at the outset of the hearing that it would be "the logical conclusion" herein that there can be no finding of constructive discharges unless Respond- ent has been found to have also engaged in conduct vio- lative of Section 8(a)(1) and (5) of the Act. Initially, I note that a constructive discharge is not really a dis- charge at all but, rather, a quit that the Board treats as a discharge in view of the surrounding circumstances. Re- molding by Oltmanns, Inc., 263 NLRB 1152, 1161 (1982); Coin General Corp., 251 NLRB 653 (1980). As to the ele- ments of proof necessary to establish the existence of such, "the Board has held that a two-pronged test must be met to establish a constructive discharge: `First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign'; second, the resultant burdens must be due to the employee's union activities." Kogy's Inc., 272 NLRB 202 (1980); Keller Mfg. Co., 272 NLRB 763 (1984). The crux of the General Counsel's theory in support of the constructive discharge allegations is that, given Respondent' s alleged- ly unlawful repudiation of the April 1, 1983 successor commercial contract, unlawful unilateral changes in the terms and conditions of employment of its commercial wiremen employees, and implementation of its decision 99 This result, although mandated by what I perceive as the current state of Board law in this area, is troubling Thus, NECA and the Union have had a longstanding bargaining relationship, one wh•ch undoubtedly has presumed majority status In this regard, I am not so much question- mg the Union's majority status as properly placing the burden on the General Counsel to prove it Secondly, I am fully cognizant of the diffi- culties imposed on the General Counsel in cases such as herein Thus, in order to establish majority status in the mulnemployer unit, counsel for the General Counsel would have to bear the expense (both in terms of time and money) of searching through remote memories and subpoenaing massive numbers of payroll records, company and union trust fund records, and other materials necessary to prove the elements of majority support Such institutional problems, of course, are no excuse for failing to meet legal responsibilities , however, these do point out a troubling aspect of this case Finally, I note that Respondent never once raised Sec 8(f) until its post-hearing brief, thereby giving no inkling to the General Counsel of what evidence would be required herein 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to become a nonunion contractor, the employees were faced with a very real Hobson's choice: continuing to work and giving up their Section 7 right to union repre- sentation or refusing to do so and quitting. However, as I have concluded that the 8(a)(1) and (5) allegations must be dismissed, there can be no finding that, in January 1984, Respondent was under any duty to recognize the Union as the representative of its commercial employees. Absent the existence of such an obligation, it cannot be established that the individuals were confronted with the above Hobson's choice on quitting their jobs or that any other allegedly unlawful conduct under Section 8(a)(1) and (5) of the Act in which Respondent engaged forced the employees to so act. As to the four residential wire- men who quit but allegedly were constructively dis- charged, the same considerations apply albeit for a differ- ent reason. The amended complaint contains no allega- tions that Respondent engaged in any conduct violative of Section 8(a)(1) and (5) of the Act with regard to these employees, who concededly were in a seperate bargain- ing unit. Thus, there was no evidence presented that Re- spondent was under an obligation to recognize and bar- gain, either through NECA or on its own behalf, with the Union on behalf of the residential wiremen. There- fore, it cannot be established that they were confronted with the Hobson's choice with which the commercial wiremen were allegedly confronted. Counsel for the General Counsel was afforded the opportunity to do so but chose not to further amend the complaint in order to offer evidence in this regard. Accordingly, based on my dismissal of the amended complaint allegations of 8(aXl) and (5) conduct concerning the commercial wiremen and no such allegations concerning the residential wiremen, it cannot be found that any collective-bargaining agree- ments were repudiated, that Respondent's employees were forced to relinquish their Section 7 right to be rep- resented by the Union, or that Respondent unlawfully changed their terms and conditions of employment. In short, there is insufficient record evidence to establish that the circumstances surrounding the decision by the alleged discriminatees to terminate their employment should be considered as sufficient to warrant finding con- structive discharges in violation of Section 8(a)(1) and (3) of the Act. Therefore, I shall recommend that the 8(a)(1) and (3) allegations of the amended complaint be dis- missed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(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. Respondent has engaged in no unfair labor practices herein. [Recommended Order for dismissal omitted from pub- lication.]