City Electric, Inc.

CITY ELECTRIC 443 City Electric, Inc. and International Brotherhood of Electrical Workers, Local Union Number 1317. Case 15-CA-7795 April 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 19, 1981, Administrative Law Judge Wiffiam N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings,' and conclusions as modified and to adopt the recom- mended Order as modified. The facts are set out more fully in the judge's decision. Briefly, the judge found that on February 28, 1977, the Respondent, an electrical contractor, signed a Letter of Assent-A, which authorized the Laurel Division, Central Mississippi Chapter of the National Electrical Contractors Association (NECA) to act as its collective-bargaining repre- sentative with regard to the then current inside agreement between NECA and the Union. Such authorization continued in effect unless terminated by the Respondent at least 150 days prior to the contract's then current anniversary date. The effec- tive date of the agreement was June 1, 1976, to June 1, 1977. On May 31, 1977, NECA and the Union executed a collective-bargaining agreement effective from June 1, 1977, to June 1, 1979, and on May 31, 1979, NECA and the Union executed an agreement effective from June 1, 1979, to June 1, 1980. It is undisputed that the Respondent was a party to the 1977-1979 and 1979-1980 agreements, notwithstanding the fact that as of March 1, 1979, the Respondent had been removed from the mem- bership rolls of NECA for nonpayment of dues. In April and May 1980, NECA and the Union held bargaining sessions for a new collective-bar- gaining agreement. One of the negotiators for NECA was Dewey D. Blackledge, the Respond- ent's secretary-treasurer and 50-percent owner. On May 12, 1980, NECA and the Union held an inter- 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 Well Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3c1 Cir. 1951). We have carefully examined the record and fmd no basis for reversing the findings. 288 NLRB No. 48 im committee meeting for the purpose of attempt- ing to settle unresolved issues between the parties at the local level with the help of International rep- resentatives from both the Union and NECA. Dewey Blackledge was present on behalf of NECA at the interim committee meeting. The rec- ommendations of the interim committee meeting were then sent to the Council on Industrial Rela- tions (Council), which conducted a hearing. The parties had agreed that the decision of the Council was to be final and binding, thus constituting a col- lective-bargaining agreement between the parties. NECA Chapter Manager Tatum received the ad- vance copy of the Council's decision on June 2, 1980, and he telephonically notified the contractors on whose behalf _NECA had negotiated, including Dewey Blackledge of the Respondent. The official decision of the Council was received by NECA on June 16, 1980. Approximately 2 weeks after NECA received the Council's official decision, the Union filed a grievance against the Respondent for allegedly working employees who had not been referred pur- ,suant to the referral provision of the collective-bar- 'gaining agreement. Tatum testified that at a meet- ing on June 30, 1980, B. L. Blackledge, the Re- spondent's president, told Tatum that the Respond- ent was going nonunion. Tatum replied that the Respondent was bound by the contract that had been negotiated for it. B. L. Blackledge responded that the Respondent was going nonunion and, if the Respondent could not make it as a nonunion contractor within 6 months, it would again become a union contractor. The Union's International rep- resentative then stated that the Respondent was still a union contractor and that it was bound by the letter of assent it had signed. B. L. Blackledge stated that he had notified the Union in writing that he was no longer bound by the the working agreement or the letter of assent. 2 B. L. Black- ledge also stated that the Respondent's employees had quit their work. The Union's International rep- resentative responded that he did not know any- thing about that and he considered the individuals still to be employees of the Respondent. About June 24, 1980, B. L. Blackledge informed Bailey, the Union's business manager and financial secretary, that the Respondent was going non- union. Bailey testified that prior to that time the Union had never received any written notification from the Respondent that it wished to terminate its agreement with the Union. 'Tatum testified that he had never, prior to the June 30, 1980 meeting, seen the letter B. L. Blackledge claimed to have sent to the Union noti- fying the Union that the Respondent was no longer bound by the work- ing agreement or letter of assent. 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Present at the above conversation between Blackledge and Bailey were employees Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey. After Blackledge stated that the Respond- ent was going nonunion, Bailey said to these four employees: "Boys, you all heard the man and you're grown and you can do what you like." Each of the employees decided at that time that they could no longer work for the Respondent be- cause it was going nonunion. The judge found that the Union was the exclu- sive representative under Section 9(a) of the Act of all the employees in the multiemployer bargaining unit, and that the Respondent did not effectuate a timely withdrawal from multiemployer bargaining prior to the 1980-1981 collective-bargaining agree- ment. Accordingly, the judge found that the Re- spondent's failure on and after June 24, 1980, to abide by and execute the 1980-1981 collective-bar- gaining agreement negotiated by NECA and the Union violated Section 8(a)(5) and (1) of the Act. The judge also found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union on June 24, 1980. The judge fur- ther found that the Respondent had failed to prove that the collective-bargaining agreement was an 8(1) contract, noting that the fact that the Respond- ent was in the building and construction industry, standing alone, is insufficient to prove the existence of an 8(f) contract. Finally, the judge found that the Respondent violated Section 8(a)(3) and (1) by constructively discharging employees Sugges, Eddy, Walker, and R. C. Bailey on June 24, 1980, when it effectively conditioned their continued em- ployment with the Respondent on abandoning their right to bargain collectively through the Union. In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board overruled R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Oper- ating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doc- trine, and modified unit scope rules in Section 8(1) cases. As set forth more fully in Deklewa, 1377- 1378, the Board decided to apply the following principles in 8(f) cases: (1) a collective-bargaining agreement permit- ted by Section 8(1) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreement will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union, will enjoy no presumption of majori- ty status, and either party may repudiate the 8(1) bargaining relationship. The Board also noted, at footnote 41 of Deklewa, that it will require the party asserting the existence of a 9(a) relationship to prove it. Under Deklewa, we find that the General Coun- sel, while asserting that the Respondent is bound to recognize the Union under Section 9(a), has failed to establish that the relationship between the Re- spondent and the Union is anything other than a relationship governed by Section 8(1) of the Act. Thus, as the evidence shows that the Respondent is engaged in the construction industry and that it en- tered into its contractual relationship with the Union at a time when the Union's majority status had not been established, we find that the relation- ship between the Respondent and the Union is gov- erned by Section 8(1) of the Act.3 Further, applying Deklewa, we agree with the judge's conclusion that the Respondent violated Section 8(a)(5) and (1) about June 24, 1980, when it refused to abide by and execute the 1980-1981 col- lective-bargaining agreement negotiated for it by NECA. The Respondent voluntarily entered into an 8(1) relationship with the Union. By the Letter of Assent-A it signed in 1977, the Respondent au- thorized NECA to represent it in collective bar- gaining and agreed to be bound by the then current bargaining agreement. Further, the Respondent's authorization to NECA did not terminate at the end of the then current agreement, but bound it to successive agreements as wel1. 4 This authorization continued unless the Respondent subsequently took some action effectively withdrawing the multiem- ployer group's authority to bargain on the Re- spondent's behalf. As the judge properly found, no notice of withdrawal of such bargaining authority had been given at the time the 1980-1981 contract was negotiated and executed by NECA and the Union. Under the Deklewa principles, the 1980- 1981 agreement was "binding, enforceable, and not subject to unilateral repudiation by the Respond- ent."5 Accordingly, the Respondent violated Section 8(a)(5) and (1) when it refused to abide by and exe- cute the 1980-1981 agreement. We note, however, that under Deklewa the Union enjoyed no presump- tion of majority status following the expiration of 3 In Deklewa, the Board rejected the so-called merger doctrine's appli- cation in 8(8) cases and held that the appropriate unit for representation elections will normally be the smgle employer's employees covered by an 8(1) agreement. Deklewa, supra at 1377-1378. Accordingly, under Deklewa, we find that the appropriate mut here is that hmited to the Re- spondent's employees, and we do not rely on the judge's unit findings to the extent they exceed the single employer unit. 4 See McCormick Electncal Construction, 240 NLRB 418, 424 (1979). 5 Deklewa, supra, 1389. CITY ELECTRIC 445 the 1980-1981 contract, and therefore the Respond- ent was free to repudiate the contract at that time.6 Thus, we find that the Respondent violated Section 8(a)(5) and (1) by refusing to abide by and execute the 1980-1981 contract during the contract term and we shall limit the make-whole remedy accord- ingly. 7 In addition, we adopt the judge's finding that the Respondent violated Section 8(a)(3) and (1) by constructively discharging employees Sugges, Eddy, Walker, and R. C. Bailey about June 24, 1980. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. All apprentice electricians and journeymen electricians employed by City Electric, Inc., ex- cluding all other employees, guards, and supervi- sors as defined in the Act, constitute an appropriate unit of the Respondent's employees for the purpose of collective bargaining under the Act. 4. By repudiating its 1980-1981 collective-bar- gaining agreement with the Union and withdraw- ing recognition from the Union during the term of the collective-bargaining agreement, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By constructively discharging about June 24, 1980, Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act, 6. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to make its 6 Deklewa, supra, 1387 7 The judge also found that the Respondent violated Sec 8(a)(5) and (1) by unlawfully withdrawing recognition from the Union. We adopt the judge's finding of such a violation, but, as the remedy is limited to the term of the 1980-1981 contract, we do not adopt the judge's recommend- ed remedy and Order that the Respondent recognize and bargain with the Union 8 In view of the evidence, and the Respondent's admission, that the Respondent satisfies the Board's discretionary jurisdictional standards, Member Johansen fmds it unnecessary to pass on the judge's finding that all members of a multiemployer association who participate in, or are bound by, group negotiations constitute a single employer for jurisdic- tional, purposes. employees whole, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), for any losses they may have suffered as a result of the Respondent's failure to adhere to the June 1, 1980-August 31, 1981 contract, with interest as computed in the manner prescribed in New Horizons for the Retard- ed.9 In accordance with Deklewa, supra, this make- whole remedy does not extend beyond the expira- tion date of the June 1, 1980-August 31, 1981 con- tract. The question of whether interest must be paid on trust fund contributions shall be left to the compliance stage of the proceeding. Merryweather Optical Co., 240 NLRB 1213 (1979). The Respondent, having violated Section 8(a)(3) and (1) of the Act by constructively discharging employees Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey, must offer them rein- statement and make them whole for any loss of earnings and other benefits, as prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), 1 ° plus inter- est as computed in New Horizons for the Retarded, supra.11 ORDER The National Labor Relations Board orders that the Respondent, City Electric, Inc., Laurel, Missis- sippi, 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 Number 1317, as the exclusive collective-bargain- ing representative of the Respondent's employees covered by the agreement. (b) Refusing to adhere to the collective-bargain- ing agreement between NECA and Local Union 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 10 We emphasize that the Woolworth backpay formula subsumes the prescnptions of Ogle, supra, and therefore the four above-named discri- minatees' gross backpay shall be based on the earnings they would have received under the 1980-1981 contract during that time period. "We note that any issues concerning the duration of the backpay and reinstatement remedy, including whether employees would be transferred or reassigned to other jobsites, can be litigated at the compliance stage of the proceeding See Dean General Contractors, 285 NLRB 573 (1987). Whether there are any individuals, other than those mentioned above, entitled to be made whole because they were denied an opportunity to work because of the Respondent's unlawful failure to continue using a contractual hiring hall is best left to the compliance stage of this proceed- ing See, e.g., Southwestern Steel & Supply, 276 NLRB 1569 fn 1 (1985), and Wayne Electric, 226 NLRB 409 (1976). 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Number 1317 dated June 1, 1980, to August 31, 1981, during its term. (c) Unlawfully terminating employees or other- wise unlawfully discriminating in regard to em- ployees' wages, terms, and conditions of employ- ment. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole its employees, 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 which was effective from June 1, 1980, to August 31, 1981. (b) Offer Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey immediate and full rein- statement to their former jobs 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 make q them whole for any loss of earnings and other ben-z, efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) 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. (d) Post at its facility in Laurel, Mississippi, copies of the attached notice marked "Appen- dix.,,i2 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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. (e) 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 Union Number 1317, " If this Order is enforced by a Judgment of a United States court of appeals, the words m 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 Enforcmg an Order of the National Labor Relations Board." if willing, in conspicuous places where notices to employees and members are customarily posted. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS 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 Union Number 1317, as the exclusive collective-bargain- ing representative of our employees covered by the agreement. WE WILL NOT refuse to adhere to our 1980-1981 collective-bargaining agreement with the Union until the August 31, 1981 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. WE WILL make our employees whole, with inter- est, for any losses they may have suffered as a result of our failure to adhere to the 1980-1981 contract with the Union until it expired on August 31, 1981. WE WILL offer Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earn- ings and other benefits resulting from their dis- charge, less any net interim earnings, plus interest. CITY ELECTRIC, INC. Nathan L. Kaitz, Esq., for the General Counsel. William E. Hester III, Esq. (Kullman, Lang, Inman and Bee), of New Orleans, Louisiana, for the Respondent. Marion G. Warren, Business Manager, of Laurel, Missis- sippi, for the Charging Party. CITY ELECTRIC 447 DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case was tried at Laurel, Mississippi, on May 18 and 19, 1981. The charge was filed by International Brotherhood of Electrical Workers, Local Union Number 1317 (Union), on July 23, 1980. The charge thereafter was amended on September 8, 1980, and a complaint and notice of hearing was issued by the Acting Regional Di- rector of Region 15 of the National Labor Relations Board (Board), on September 8, 1980. The primary issues are whether City Electric, Inc. (Respondent), on or about /line 24, 1980, violated Section 8(0(5) of the Na- tional Labor Relations Act (Act), by refusing to recog- nize and bargain with the Union by unilaterally with- drawing from an existing bargaining agreement and thereby refusing to honor, implement, abide by, and exe- cute the agreement negotiated by the Central Mississippi Chapter (Laurel Division) of the National Electrical Contractors Association, Inc. (Association) and the Union, and further whether Respondent violated Section 8(a)(3) and (1) of the Act by constructively discharging certain of its employees because of their membership in and activities on behalf of the Union and because of Re- spondent's unilateral alteration of their terms and condi- tions of employment. The issues in this matter were joined by Respondent's answer of September 22, 1980. All parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnessess, to file briefs, and to submit proposed findings of fact and con- clusions of law. On the entire record made in this proceeding, includ- ing my observation of each witness who testified, and after due consideration of briefs filed by counsel or the Respondent and counsel for the General Counsel, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Mississippi corporation with its princi- pal office and place of business located in Laurel, Missis- sippi, where it is engaged in the electrical contracting business. During the 12-month period preceding the issu- ance of the complaint and notice of hearing the Re- spondent, in the course and conduct of its business oper- ations, purchased and received goods and material valued in excess of $50,000 from suppliers located in the State of Mississippi who, in turn, received goods and ma- terials directly from points located outside the State of Mississippi. Further, Respondent, in the course and con- duct of its business operations, performed services valued in excess of $50,000 for customers in the State of Missis- sippi who purchased and received goods and materials, valued in excess of $50,000 directly from points located outside the State of Mississippi. The Respondent's answer admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Association is a Mississippi corporation with its principal office and place of business located in Jackson, Mississippi, where it is and has been at all times material here an association of employers in the electrical con- tracting business in and around the Laurel, Mississippi area. The Association exists and has existed at all times material for the purposes, in part, of negotiating and exe- cuting collective-bargaining agreements with various labor organizations, including the Union, on behalf of its member-employers. The Respondent admits that it became a member of the Association on February 22, 1977, and as such authorized the Association to engage in collective bargaining on its behalf with the Union (as will be discussed in detail infra).' The evidence estab- lished that Respondent was a member of the Association at least until March 1, 1979, when it was removed from membership for nonpayment of dues. Purdum Electric Co. was a member of the Association from February 1977 until at least July 22, 1980.2 Purdum Electric Co., an electrical contracting concern, pur- chased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi during both the 1979 and 1980 calendar years. Respondent and Purdum Electric Co. both meet established Board jurisdictional standards; therefore, the Association would be subject to the Board's jurisdiction inasmuch as the Board will assert jurisdiction over em- ployer associations through one or more of the associa- tion's member-employers. All members of a multiemploy- er association who participate in, or are bound by, group negotiations constitute a single employer for jurisdiction- al purposes. I, therefore, conclude and find that, at all times material, the Association is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I fmd that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Meredith W. Tatum, chapter manager for the Central Mississippi Chapter, National Electrical Contractors As- sociation, credibly testified regarding the history, func- tion, and operations of the Central Mississippi Chapter and the Laurel Division of the National Electrical Con- tractors Association, Inc. The Central Mississippi Chap- ter of the National Electrical Contractors Association is composed of three divisions: the Meridian Division, the Jackson Division, and the Laurel Division. The Laurel Division was formed in 1977 with three original mem- bers: Purdum Electric, Stevens Electric, and the Re- spondent. According to Tatum, the Central Mississippi Chapter of the National Electrical Contractors Associa- tion represents electrical contraction in the construction The Respondent, however, denied that it authorized the Association to engage in collective bargaining on its behalf at all times material. 2 Based on the credited testimony of Earl Purdum, president of Purdum Electric, Laurel, Mississippi 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD business in all but 28 counties in the State of Mississippi. The Association does labor contract negotiations and trade promotions for the industry. The Respondent made application for membership in the Association on February 16, 1977. The application for membership was signed for Respondent by Dewey D. Blackledge.3 Respondent's application indicated that it had been in the electrical contracting business for 28 years and, at the time of the application, it was a party to a labor agreement with the International Brotherhood of Electrical Workers. The Respondent was accepted as a member of the Association, in writing, on March 17, 1977, with an effective date of March 1, 1977. Dewey D. Blackledge was indicated as the accredited representative of Respondent to the Association. On February 28, 1977, Dewey D. Blackledge, on behalf of Respondent, signed a "Letter of Assent-A,',' which was approved by the International president of the Union on April 12, 1977. The Letter of Assent stated in pertinent part: In signing this letter of assent, the undersigned firm does hereby authorize Laurel Division, Central Mis- sissippi Chapter N.E.C.A. as its collective bargain- ing representative for all matters contained in or pertaining to the current approved Inside Working labor agreement between the Laurel Division, Cen- tral Mississippi Chapter N.E.C.A. and Local Union 1317, IBEW. This authorization, in compliance with the current approved labor agreement, shall become effective on the 22 day of February 1977. It shall remain in effect until terminated by the undersigned employer giving written notice to the Laurel Divi- sion, Central Mississippi Chapter N.E.C.A. 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. On February 16, 1977, the Respondent, along with the two other charter members of the Association, executed a change of bargaining rights. The change of bargaining rights authorized the Association to be the employer bar- gaining agent for the collective-bargaining agreement that had been entered into on the first day of June 1976, with an effective date until June 1, 1977, which agree- ment had been originally negotiated between the electri-, cal contractors of Laurel, Mississippi, and the Union. On February 22, 1977, the Association and Union negotiated certain amendments to the then-existing collective-bar- gaining agreement. Dewey D. Blackledge signed the amendments as chairman of the Association. The Association and Union on May 31, 1977, executed a collective-bargaining agreement with effective dates from June 1, 1977, until June 1, 1979. It is undisputed that Respondent was a party to the 1977-1979 agree- ment. The agreement was signed by Dewey D. Black- 3 The complamt alleged and Respondent by its answer admitted that Secretary-Treasurer Dewey D. Blackledge and President B. L. Black- ledge, at all times material, were supervisors and agents of Respondent within the meaning of Sec. 2(11) and (13) of the Act. ledge as chairman for the Association, and at article II, section 3, of that agreement it stated as follows: The Employer recognizes the Union as the exclu- sive representative of of [sic[ all its Employees per- forming work within the jurisdiction of the Union for the purpose of collective bargaining in respect to rate of pay, wages, hours of employment, and other conditions of employment. Any and all such Employees shall receive at least the minimum wages and work under the conditions of this Agree- ment. An identical recognition clause was set forth under the same article and section number in the contract that was in existence when the Association was formed and was contained therein when the Association and Union exe- cuted the change of bargaining rights on February 16, 1977, which change of bargaining rights authorized the Association to be the employer bargaining agent. The Association and Union on May 31, 1979, executed a collective-bargaining agreement with effective dates from June 1, 1979, until June 1, 1980. It is further undis- puted that Respondent was a party to and bound by the 1979-1980 agreement contained the identical recognition clause set forth supra. The Respondent does not deny that it was bound by the 1979-1980 agreement that was negotiated by the association with the Union, notwith- standing the fact that as of March 1, 1979, the Respond- ent had been removed from the membership rolls of the Association for nonpayment of dues. B. The 1980 Negotiations Association Chapter Manager Tatum credibly testified that he prepared and hand-delivered to the Union on April 1, 1980, a written request to open negotiations for a collective-bargaining agreement between the Associa- tion and the Union. According to Tatum, a meeting was arranged for April 7, 1980; however, the union negotia- tors did not attend the meeting. On April 8, 1980, Tatum, on behalf of the Association, again requested to meet for negotiations with the Union and recommended April 15, 1980, as the date to begin negotiations. The negotiators for the Association met on April 15, 1980, and those in attendance signed a minute of the meeting. One of those signing on behalf of the Associa- tion was Respondent's secretary-treasurer, Dewey D. Blackledge. According to Tatum, the representatives present at the meeting for the Union were without the proper authorization to negotiate on behalf of the Union, and as such negotiations did not commence on that date. On April 21, 1980, Tatum, on behalf of the Association, wrote the Union and requested that the Union bargain with the association; and in the letter Tatum stated that the employers serving on the negotiating committee would be Forrest Stevens of Stevens Electric Company, Leo Gibson of Gibson Electric Company, W. E. Purdum of Pudum Electric Company, and Dewey D. Blackledge from City Electric Company would serve as an alternate on the committee. Tatum requested an April 28, 1980 bargaining session. CITY ELECTRIC 449 - A bargaining session was held on April 28, 1980, and the minutes of the negotiating session indicate that the Association was represented by Tatum, Stevens, and Dewey D. Blackledge. Tatum testified that Blackledge participated in the negotiations of April 28, 1980. -, The next bargaining session was held May 5, 1980, and those in attendance for the Association as reflected in the minutes of the meeting were Tatum, Stevens, Earl Purdum, and Dewey D. Blackledge. The minutes of the negotiating session were read aloud and signed by all who were present. BlacIdedge's signature appears there- on. According to Tatum, whose testimony I credit, Dewey D. Blackledge was one of the participating nego- tiators at the May 5, 1980 session. Following the May 5, 1980 bargaining session, the As- sociation and Union held an interim committee meeting. Tatum testified that there was a provision in their agree- ment with respect to negotiations that called for unre- solved issues between the parties in negotiations to be submitted for binding arbitration to the Council on In- dustrial Relations for the electrical contracting industry in Washington, D.C. Tatum explained that the interim committee meeting was an attempt to settle unresolved issues between the parties at the local level with the help of International representatives from the Union as well as the 'Association. Tatum. further explained that if the par- ties at the interim meeting were unable to facilitate movement in negotiations, then the matters were to be submitted to the Council on Industrial Relations for the electrical contracting industry in Washington, D.C. Tatum testified that Dewey D. ' Blackledge, among others, was present on behalf of the Association at the interim committee meeting that was held on May 12, 1980. Records of the May 12 meeting reflect that it re- sulted in the following: A Motion was made by Mr. Frank Drennan, Local 1317, I.B.E.W. to accept the Joint Recommenda- tions of the two I. 0. Representatives. The Motion was seconded by Forrest Stevens of Stevens Elec- tric, N.E.C.A. Member. On Vote the motion car- ried unanimously. And thereafter signing on behalf of the Association, among others, was Dewey D. Blackledge. Tatum testi- fied that Blackledge served as a member of the commit- tee at the May 12 interim meeting. Tatum testified that the recommendations of the inter- im committee meeting were sent to the Council on In- dustrial Relations for the electrical contracting industry in Washington, D.C. The Council on Industrial Relations conducted a hearing at which Tatum represented the As- sociation and Carol Bailey represented the Union. The Council on Industrial Relations panel consisted of six members of the International Brotherhood of Electrical Workers and six members of the National Electrical Contractors Association. The decision of the Council on Industrial Relations by agreement was final and binding on the parties, thus constituting a collective-bargaining agreement between the parties. The Council on Industri- al Relations issued an advance copy of its decision, which advance copy was received by Tatum on June 2, 1980. Tatum testified that after he received his advance copy of the Council's decision, he telephonically notified the contractors on whose behalf the Association negoti- ated. Tatum specifically notified the Respondent of the advance decision of the Council by speaking with Dewey D. Blackledge. Further, Tatum issued a bulletin to the contractors concerned therewith on June 10, 1980. The official decision of the Council on Industrial Rela- tions indicated it was unanimously adopted on May 20, 11980, and received by the Association on June 16, 1980. The decision of the Council was identical to those rec- ommendations that had been made by the interim com- mittee, which recommendations had been signed by, among others, Dewey D. Blackledge, on May 12, 1980. The recognition clause in the June 1980 to August 1981 agreement was identical to those contained in previ- ous collective-bargaining agreements between the Asso- ciation and the Union, which clause has been set forth elsewhere in this decision. Dewey D. Blackledge acknowledged in his testimony that he was secretary-treasurer and 50-percent owner of Respondent. Dewey D. Blackledge testified he attended the collective-bargaining sessions between the Associa- tion and Union in 1980, and acknowledged that he exe- cuted the minutes of those various bargaining sessions. Dewey D. Blackledge stated that he attended the April 28, 1980 meeting for the purpose of negotiating on behalf of the Respondent. Dewey D. Blackledge further ac- knowledged that he attended and participated in the 'in- terim meeting between the Association and the Union that was held on May 12, 1980. Blackledge's purpose at the meeting is clearly demonstrated by the following question asked of Blackledge by counsel for the General Counsel fo Blackledge: Q: [By Kaitz] O.K. Did you attend this_ session, Mr. Blackledge, for the purpose of negotiating an agreement with the Union for the contracting indus- try of Laurel [Mississippi], including [Respondent] City Electric? A: [By Dewey D. Blackledge]Yes, sir. _ _ , Chapter Manager Tatum testified that the Council's decision was final and binding on the Association and Union and constituted a collective-bargaining agreement between them. About 2 weeks after receipt by Tatum of the Council's official decision, a grievance was filed by the Union with respect to an alleged violation of the agreement by the Respondent in that the Respondent was working employees who had not been referred to, their employment pursuant to the referral agreement of the collective-bargaining agreement. According to the credited testimony of Tatum, a joint meeting of the par- ties was held on June 25, 1980, but the Respondent did not attend. Inasmuch as nothing was resolved at the June 25 meeting, a further meeting was held on June 30, 1980, according to Tatum. Tatum testified that on June 30 he met with B. L. and Dewey D. Blackledge at Respond- ent's offices. Tatum testified that B. L. Blackledge told him Respondent was going nonunion. Tatum testified that he told the Blackledges that they were bound by the contract that had, been negotiated for them. Tatum stated 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. L. Blackledge told him that Respondent was going nonunion and if Respondent could not make it nonunion within 6 months, he would again become a union con- tractor. Tatum testified that International Representative Russ was also present and told B. L. Blackledge that Re- spondent was still a union contractor, that Respondent was bound by the Letter of Assent Respondent had signed. According to Tatum, at this point B. L. Black- ledge stated he had notified the Union in writing that he was no longer bound by the working agreement or Letter of Assent. Tatum testified that B. L. Blackledge at this point in the meeting told the Union's representa- tives who were present that Respondent's employees had quit their work, to which International Union Represent- ative Russ responded that he did not know anything about it and considered the individuals still employees of Respondent. Tatum testified he had never previous to that meeting seen the letter B. L. Blackledge claimed to have sent to the Union notifying them Respondent was no longer bound by the working agreement or Letter of Assent (letter discussed infra). Carol Bailey testified that he was business manager and fmancial secretary for the Union from March 1969 until July 1980. Bailey testified he had a meeting with B. L. Blackledge on either June 23 or 24, 1980, at which time Blackledge informed him that Respondent was , going nonunion. Bailey testified that prior to that time, the Union had never received any written notification from Respondent that it wished to terminate its agree- ment with the Union. Respondent President B. L. Black- ledge acknowledged having a meeting with Union Busi- ness Manager Bailey in which Blackledge stated: I said hadn't anything been straightened out with the union so it looks like we're going to have to pull out of it. We discussed what it meant pulling out; I said anybody wants to stay here can stay, we'll pay them scale but we won't hold out assess- ments and we won't pay the one percent or the three percent. An afternoon meeting held that same day between Bailey, Blackledge, and the employees at which time the employees were informed of B. L. Blackledge's decision will be set forth infra. C. Discussion and Anaylsis Counsel for the General Counsel contends the evi- dence establishes that the Respondent had for a number of years negotiated with the Union through the Associa- tion, and further that with respect to the most recent ne- gotiations, one of Respondent's officers and owners had even served as one of the negotiators for the Associa- tion's negotiating team, and that the Respondent never at any point timely withdrew from multiemployer bargain- ing through the Association. Thus, counsel for the Gen- eral Counsel contends that when the Respondent on or about June 24, 1980, refused to execute, honor, imple- ment, and abide by the collective-bargaining agreement negotiated for it by the Association, it violated Section 8(a)(5) and (1) of the Act. Counsel for the General Counsel contends, although not specifically set forth in the complaint, that the Respondent by its actions on June 24, 1980 (described supra and more fully explained infra), withdrew recognition of the Union in violation of Sec- tion 8(a)(5) of the Act. Finally, counsel for the General Counsel contends, as will be discussed in detail else- where in this decision, that Respondent in violation of Section 8(a)(3) of the Act constructively discharged cer- tain of its employees when it unilaterally altered their terms and conditions of employment. The Respondent contends it has not violated the Act in any manner for a variety of reasons. First, the Re- spondent questions the appropriateness of the bargaining unit and the Union's representative status with respect to the unit. The Respondent contends it withdrew from multiemployer bargaining prior to the advent of negotia- tions for the 1980-1981 collective-bargaining agreement. Additionally, the Respondent contends that even if it were bound by the 1980-1981 collective-bargaining agreement, the agreement was a prehire contract within the meaning of Section 8(f) of the Act, and as such the Union must prove its majority support in order for the contract to be enforceable. Finally, with respect to the contract, Respondent contends that it is void in its en- tirety inasmuch aS it contains an illegal provision therein. The Respondent contends in part with respect to the allegations that it constructively discharged certain of its employees. That the cessation of employment by the em- ployees amounted to nothing more than voluntary resig- nations on the part of the employees concerned. The constructive discharge allegations and other contentions will be fully discussed infra. For ease of understanding, I shall consider the various other contentions of the parties commencing with the issue of the appropriateness of the bargaining unit. 1. The appropriateness of the unit The General Counsel at paragraph 8 of the complaint alleged the appropriate unit as follows. All employees who are employed by members of the Central Mississippi Chapter (Laurel Division) of National Electric Contractors Association, Inc., within and under the jurisdiction of the Union in the counties of Jones, Wayne, Smith, Jasper and Covington, Mississippi, excluding all other employ- ees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Union Business Manager and Financial Secretary Bailey testified, and I credit his uncontradicted testimony in this respect, that the Mississippi counties of Jones, Jasper, Wayne, Smith, and Covingtont constitute the ter- ritorial jurisdiction of Local Union 1317. The unit the General Counsel alleged to be appropriate and of which the Respondent denied that it was appropriate is the same unit that was described in each of the collective- bargaining agreements since the formation of the Asso- ciation. The bargaining history between the Association and the Union gives rise to a presumption that the multi- employer unit was and is appropriate. Where, as in the instant case, there has been a history of meaningful joint CITY ELECTRIC 451 bargaining for a substantial period of time, resulting in the adoption of uniform contracts, the Board has found multiemployer units to be appropriate. See, e.g., Ameri- can Publishing Corp., 121 NLRB 115 (1958); Van Eerden Co., 154 NLRB 496, 499 (1965); and McAx Sign Co., 231 NLRB 957 (1977). The Respondent presented no evi- dence to negate the presumption of the appropriateness of the unit that emanated from the successive collective- bargaining history of the parties. I, therefore, conclude and fmd that the multiemployer unit described supra constitutes an appropriate unit both as to scope and com- position for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union's majority representative status The General Counsel at paragraph 9 of the complaint alleged that since on or about February 22, 1977, and continuing to date, the Union has been and is the repre- sentative for the purposes of collective bargaining of a majority of the employees in the unit set forth supra, and that since February 22, 1977, the Union has been recog- nized as such representative by the Respondent and the Association, and that such recognition has been em- bodied in successive collective-bargaining agreements. The Respondent denies the majority status of the Union; however, it failed to present evidence in support of its denial. It is well settled that the existence of a contract gives rise to a presumption that the Union was the majority representative at the time the contract was executed and throughout the life of the contract and to a rebuttable presumption of majority support following its expiration. See Triplett Cmp., 234 NLRB 985 (1978), and the cases cited therein at fns. 4 and 5. I, therefore, conclude and find that the Union has been and is now the representa- tive for the purposes of collective bargaining of a majori- ty of the employees in the appropriate unit set forth supra. See also Cauthorne Trucking, 256 NLRB 721 at fn. 3 (1981).4 3. The Respondent's attempted withdrawal from multiemployer bargaining The Respondent contends it withdrew from multiem- ployer bargaining prior to the advent of the negotiations for the 1980-1981 collective-bargaining agreement. The Respondent advances a number of factors in support of its contentions in this regard. Respondent contends that it was dropped from membership in the Association for nonpayment of dues effective March 1, 1979. 5 Respond- ent President B. L. Blackledge testified that he spoke with Association Chapter Manager Tatum early in 1978 expressing concern to Tatum that the Association was not helping him as a contractor at all, that he did not want anything more to do with it, and "we didn't want 4 The Respondent's contentions that the 1980-1981 contract was a pre- hire agreement within the meaning of Sec 8(0 of the Act, thus requiring the Union to prove its majority support on a project-by-project basis, will be considered infra. 5 Association Chapter Manager Tatum acknowledged m his testimony that the Respondent was in fact dropped from membership in the Asso- ciation on that date. to be members then." Respondent President Blackledge testified he spoke with Union Business Manager and Fi- nancial Secretary Bailey on various occasions regarding what he (Blackledge) perceived to be infractions of the collective-bargaining agreement, and that on December 18, 1979, he wrote Bailey a letter wherein he stated, "We wish to terminate our agreement with Local Union 1317 as soon as possible." Respondent President Blackledge testified he personally deposited the letter with the mail on or about December 18, 1979. Respondent President Blackledge testified he had no knowledge whether Bailey ever received the letter inasmuch as he did not send it certified mail; however, l3lackledge stated that Bailey spoke to him about Respondent's getting out of the Union thereafter in January 1980. The Respondent therefore contends that well in ad- vance of the commencement in April 1980 of the negoti- ating sessions it had notified both the Association and the Union by written and oral communications of its inten- tion to withdraw from the Association and to divest it of any authority to bargain on behalf of the Respondent. The Respondent contends its notifications were both fac- tually and legally sufficient and consistent with leading Board and court cases on withdrawal from multiemploy- er bargaining associations. In this regard, the Respondent correctly states Board law to be such that in order to withdraw properly from a multiemployer bargaining as- sociation, a member must manifest an intent to withdraw and exercise the same prior to the commencement of bar- gaining. The General Counsel contends that the evidence clear- ly established that the Respondent did not 'withdraw from multiemployer bargaining until after June 24, 1980, a time when a contract had already been arrived at be- tween the Association and Union. Counsel for the Gen- eral Counsel contends that a specific finding should be made that the December 18, 1979 letter Respondent President Blackledge contends he mailed was never in fact sent. Or, if the letter should be found to have been sent, that it did not state that Respondent was withdraw- ing for the Association, and further that the Union never received the letter. In the case of Retail Associates, 120 NLRB 388 (1958), the Board enunciated its approach to the matter of with- drawal of either a union or employer from a multiem- ployer unit as follows: The right of withdrawal by either a union or em- ployer from a multiemployer unit has never been held, for Board purposes, to be free and uninhibited, or exercisable at will or whim For the Board to tolerate such inconsistancy (sic) and uncertainty in the scope of collective-bargaining units would be to neglect its function in delineating appropriate units under Section 9, and to ignore the fundamental pur- pose of the Act of fostering and maintaining stabili- ty in bargaining relationships. Necessarily under the Act, multiemployer bargaining units can be accord- ed the sanction of the Board only insofar as they rest in principle on a relatively stable foundation. While mutual consent of the union and employers involved is a basic ingredient supporting the appro- 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD priateness of a multiemployer bargaining unit, the stability requirement of the Act dictates that reason- able controls limit the parties as to the time and manner that withdrawal will be permitted from an established multiemployer bargaining unit. Thus, the Board has repeatedly held over the years that the intention by a party to withdraw must be unequivo- cal, and exercised at an appropriate time. The deci- sion to withdraw must contemplate a sincere aban- donment, with relative permanency, of the multiem- ployer unit and the embracement of a different course of bargaining on an individual-employer basis. The element of good faith is a necessary re- quirement in any such decision to withdraw, be- cause of the unstabilizing and disrupting effect on multiemployer collective bargaining which would result if such withdrawal were permitted to be lightly made. [120 NLRB at 393.] • " We would accordingly refuse to permit the with- drawal of an employer or a union from a duly es- tablished multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer nego- tiations. Where actual bargaining negotiations based on the existing multiemployer have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each has com- mitted itself to the other, absent unusual circum- stances. [120 NLRB at 395.] Applying the principles set forth in Retail Associates, supra, to the case here, I conclude and find that the Re- spondent did not effectutate a timely withdrawal from multiemployer bargaining prior to a contract having been negotiated. The record is void of any evidence that would establish unusual circumstances such as to justify Respondent's withdrawal from the multiemployer bar- gaining nor was there mutual consent for withdrawal. The Respondent's reliance on its being dropped from Association membership for nonpayment of dues as being equitable to withdrawing from the Association and mul- tiemployer bargaining is without merit. The Respondent was removed from membership in the Association effec- tive March 1, 1979; however, it acknowledged that it was bound by the 1979-1980 contract that was signed on May 31, 1979, with an effective date of June 1, 1979, times well after it had been dropped from membership in the Association for nonpayment of dues. Further, Re- spondent at no time after February 1977 withdrew its Letter of Assent-A that authorized the Association as its collective-bargaining representative. The evidence indi- cates that the Letter of Assent-A was evergreen as testi- fied to by Association Chapter Manager Tatum. Tatum's testimony was borne out by the fact that no new letter of assent was ever required of Respondent for any contract that it either executed or was bound by after it had initial letter of assent. I discredit the testimony of Respondent President B. L. Blackledge that he, on December 18, 1979, mailed a letter to the Union in which he stated Respondent wished to terminate its agreement with the Union. I do primarily because the actions of Respondent after that date tend to indicate that such a letter was never sent. Respondent President Blackledge did not discuss the letter with any union representative until June 1980. Re- spondent President B. L. Blackledge stated he discussed the letter in question with his brother, Secretary-Treasur- er Dewey D. Blackledge. I discredit that testimony, fmd- ing it totally inconsistent with Secretary-Treasurer Dewey Blackledge's continued participation in the 1980 negotiations. If B. L. Blacldedge had prepared such a letter, mailed it, and discussed it with his brother Dewey D. BIackledge, I do not believe Dewey D. Blackledge would have continued participating in the 1980 negotia- tions for, as stated by Dewey D. Blackledge, the purpose of attempting to arrive at a collective-bargaining agree- ment between the Association and the Union on behalf of, among others, the Respondent. The Respondent's contention that Dewey D. Blackledge attended the 1980 negotiations without authority to act on behalf of the Re- spondent and merely as an observer is not borne out by the facts. The Respondent, in its answer to the com- plaint, admits that at all times material to the instant case Dewey D. Blackledge was a supervisor and/or agent of the Respondent within the meaning of Section 2(11) and (13) of the Act. Further, Dewey D. Blacldedge, both by his testimony as to his function at the meetings and by his signature on the various negotiating minutes, refutes the contention that he was in attendance merely as an observer. Finally, Respondent's contention that enough information was provided to the Union so that it could reasonably have concluded that the Respondent had withdrawn from multiemployer bargaining is again not borne out by the record evidence. It is not reasonable for the Union to conclude that the Respondent had with- drawn from multiemployer bargaining when at the same time Dewey D. Blackledge, a 50-percent owner and sec- retary-treasurer of Respondent, was attending the bar- gaining sessions, initialing the bargaining notes, and by his signature indicating that he favored the interim com- mittee report that became the final contract.6 The contract in question was approved on May 31, 1980, and the Union requested Respondent to execute the agreement on June 24, 1980. Further, the Respondent admits that since June 24, 1980, and at all times thereaf- ter, it has refused and continues to refuse to abide by the terms of the collective-bargaining agreement negotiated between the Union and the Association. As is set forth elsewhere in this decision, I have concluded that the unit in question was appropriate, and I have further conclud- ed that the Union at all material times herein was the majority representative of the unit employees. I, there- fore, conclude and find that Respondent's withdrawal from multiemployer bargaining was untimely and its fail- ure on and after June 24, 1980, to honor, implement, abide by, and execute the 1980-1981 collective-bargain- 6 Even assummg, arguendo, that the letter of December 18, 1979, had been sent to and received by the Union, it would not have constituted a clear and unequivocal withdrawal from multiemployer bargaining. See Players Restaurant, 246 NLRB 863 (1979). CITY ELECTRIC 453 ing agreement negotiated by the Association sand Union violated Section 8(a)(5) and (1) of the Act. 4. Certain affirmative defenses advanced by Respondent a. The 1980-1981 contract is a prehire agreement The Respondent contends that if it is bound by the 1980-1981 contract, the contract is a prehire agreement as contemplated by Section 8(1) of the Act. The Re- spondent further contends that in order to enforce a pre- hire agreement, a union must prove majority support. The Respondent's reliance on Giordano Construction Co., 256 NLRB 47 (1981), is misplaced inasmuch as Respond- ent offered no evidence to establish that the 1980-1981 contract between the Association and the Union on behalf of the Respondent, among others, was a prehire arrangement governed by Section 8(1) of the Act. Sec- tion 8(1) of the act does not describe what constitutes an unfair labor practice, but rather what does not constitute one. Section 8(f) of the Act, although statutory, is in the nature of an affirmative defense to an 8(a)(5) allegation, such as to place a burden on the party advancing it to establish that the contract in question is in fact an 8(f) contract. The mere fact that the Respondent is engaged in the building and construction industry standing alone is insufficient to prove that a contract it would enter into would automatically be an 8(1) contract. Inasmuch as Re- spondent failed to establish in any manner that the con- tract is an 8(1) contract, I conclude and find that the bar- gaining relationship between the Respondent through the Association and the Union is a relationship governed by Section 9 of the Act. 7 I, therefore find Respondent's ar- gument based on Section 8(1) to be without merit, and find that the bargaining obligations of the Respondent must be measured by the usual 8(a)(5) criteria.8 b. The alleged illegality of the Industry fund provision of the 1980-1981 agreement The Respondent contends that the 1980-1981 agree- ment between the Association and the Union is null and void in its entirety due to findings by United States Dis- trict Judge Herbert F. Murray for the District of Mary- 7 Assuming, arguendo, that the original contract was an 8(1) agree- ment, the Union would have established its majonty status by the contin- ued execution of successive contracts containing the recognition clause (set forth elsewhere in this decision taken m conjunction with the exclu- sive hiring hall arrangement between the parties Cf. Carmichael Con- struction Co., 258 NLRB 226 (1981). Finally, even assuming the General Counsel had failed to demonstrate that the Union represented a majority of Respondent's employees, the Respondent would not be free to refute the agreement because Respondent was bound by its letter of assent to the bargaining of the mulnemployer bargaining association. Thus, Re- spondent's employees would constitute only a small segment of the over- all appropriate unit. See Amoco Electric, 238 NLRB 37 (1978). 8 The evidence introduced by Respondent to show that the Union did not represent a majority of its employees on the Sawmill Mall, Swan Lake Dorm and Chapel Hill Lane Oak Dorm is of no defense to the Re- spondent's unlawful acts inasmuch as the earliest employee hired on the earliest project, i.e., the Sawmill Mall project, was July 3, 1980, a tune after Respondent had unlawfully withdrawn from the multemployer unit and had unlawfully failed to abide by the 1980-1981 collective-bargaining agreement. The Respondent did not seek referrals from the Union for these projects as required by the collective-bargaining agreement. Land that the industry fund provision of the collective- bargaining agreement violated section 1 of the Sherman Anti-Trust Act, 15 U.S.C. § 1, as reported National Con- structors Ass. v. National Electrical Contractors Assn., 498 F.Supp. 510 (D. Md 1980). The Respondent further con- tends that because the 1980-1981 collective-bargaining agreement did not contain a savings or severability clause that would provide for continued enforcement of the other provisions of the collective-bargaining agree- ment, the entire contract must be considered null and void, The Respondent contends the industry fund clause is an essential ingredient of the present collective-bar- gaining agreement between the Association and the Union, and further that the absence of a savings or sever- ability clause constitutes evidence of the obvious intent of the parties that severability of the particular clause was not desired. I conclude and find Respondent's de- fense in this respect to be without merit inasmuch as Re- spondent's refusal to abide by the collective4)argaining agreement was predicated on an outright rejection of its bargaining obligation and not on the presence of an un- lawful provision in the contract. This is evidenced by, among other facts, the fact that Respondent executed or admittedly was bound by three previous agreements that contained the industry fund provision. The respondent at no point in the negotiations objected to the industry fund provision nor did Respondent produce any evidence at trial that the Union had attempted to enforce the indus- try fund provision since the issuance of the decision find- ing the industry fund clause unlawful under the Sherman Anti-Trust Act. In summary, after careful consideration of Respond- ent's arguments (including those not expressly mentioned above), I conclude that it was obligated to honor, imple- ment, abide by, and execute the Association contract and by refusing to do so, it violated Section 8(a)(5) of the Act. D. Alleged Constructive Discharges The complaint at paragraphs 13 and 14 alleged that Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey were constructively discharged on June 24, 1980, as a result of their refusal to accept unilateral alteration of terms and conditions of their employment. Union Business Manager and Financial Secretary Bailey testified that he visited Respondent's location on the morning of June 24, 1980, because he had been in- formed there was an employee working at Respondent who had not been referred by the Union. Bailey testified, and I credit his testimony, that he confronted the em- ployee in question and the employee indicated he wanted to work the remainder of that day and would then move on to obtain employment elsewhere. Bailey returned to the Respondent that afternoon to ascertain from Re- spondent what its position would be with respect to Re- spondent working an employee who had not been re- ferred by the Union, Bailey stated he saw Respondent President B. L. Blackledge that afternoon and asked him what he intended to do. Bailey testified Blackledge told him: 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Carol [Bailey], I guess we're going non-union; and I said, "when?" and he said, "right now." . . . I said, "If there is anything in the world I can do to pre- vent you from going non-union, I'll certainly do it"; and he said, "Carol, I've already made up my mind." Bailey testified that he at this point turned to employees Walker, Eddy, R. C. Bailey, and Sugges, who had as- sembled where he and Respondent President Blackledge were, and stated to them, "Boys, you all heard the man and you're grown and you can do what you like." Bailey testified that each of the employees decided at that time they could no longer work for Respondent inasmuch as Respondent was going nonunion. R. C. Bailey testified that when the conversation set forth above took place between Carol Bailey and Re- spondent President Blackledge, he told Blackledge it had been nice working for him. R. C. Bailey testified he left the employment of Respondent because Respondent was going nonunion. In this respect, Benny Sugges testified that Union Business Manager Bailey asked each employ- ee if he was going to stay if Respondent President Black- ledge went nonunion and, according to Sugges, each in- dividual said no. Sugges testified he left his employment with Respondent because, "Well, personally my feeling was Mr. Blackledge had said he was going non-union and I was a union member, and I couldn't stay under the circumstances." Ralph Walker testified that Respondent President Blacldedge on June 24, 1980, "told us that he was not going to sign a new contract, that he was work- ing non-union." Walker told Respondent President Blackledge, "Well, B. L., you know I can't go with you." Walker testified he could not go with Respondent President Blackledge because Respondent was going nonunion. I credit the testimony of Sugges, Walker, and R. C. Bailey. Respondent President B. L. Blackledge acknowledged there was a meeting with Bailey on the afternoon of June 24, 1980. Blackledge testified with respect to the meeting that he told Bailey: I said hadn't anything been straightened out with the union so it looks like we're [Respondent] going to have to pull out of it. We discussed what it meant pulling out; I said anybody wants to stay here can stay, we'll pay them scale but we won't hold out assessments and we won't pay the one per- cent or the three percent. Respondent President Blackledge stated he and Bailey then met with the employees. Respondent President Blackledge recalled the comments of some of the em- ployees and stated: I believe Benny Sugges was the first one to say if we are going non-union, he couldn't stay there.. . . I don't remember exactly what was said, but the best I remember Ralph Walker said something to the same effect. Further, Respondent President Blackledge testified that he imagined the reason that J. J. Eddy quit was the fact he had talked it over with the other three men and it was because-Respondent was going nonunion. The Respondent raises many contentions with respect to the discharge allegations; for example, in brief it con- tends: In the instant fact situation, counsel for the General Counsel has failed in his burden and has not shown anything more than the employees' actions amount- ed to voluntary resignations. Respondent further contends it could repudiate the pre- hire agreement as to projects it worked inasmuch as a project-by-project employer may repudiate a prehire agreement at any time prior to a union's establishing ma- jority status. Finally, the Respondent contends it did not require any of the four employees to drop their union membership nor did it in any way imply that the em- ployees would have to change their union status in order to continue to work for the Respondent. Counsel for the General Counsel contends the contin- ued employment of Respondent's employees after the June 24, 1980 meeting was conditioned on their abandon- ing their right to bargain collectively through the Union. Counsel for the General Counsel contends that when the four employees in question were faced with that choice, they immediately quit their employment. Counsel for the General Counsel further contends that while each of the employees may not have specifically stated that their reason for leaving was Respondent's decision to go non- union, their actions unequivocally established it was the reason for their leaving. Counsel for the General Counsel contends the decision by Respondent to go nonunion af- fected changes in the employees' terms and conditions of employment and cites, for example, the fact that Re- spondent President Blackledge stated Respondent would no longer withhold dues assessments or make payments to the employees' benefit funds. I reject the Respondent's position that the actions of the named discriminatees amounted to nothing more than voluntary resignations on their part. The evidence is overwhelming that the continued employment of the four individuals in question was conditioned on their abandoning their right to bargain collectively through the Union. As is set forth elsewhere in this decision, I find no evidence to establish that the 1980-1981 agree- ment was a prehire agreement; therefore, I reject Re- spondent's contention it could repudiate the 1980-1981 agreement at will. I likewise reject Respondent's conten- tion that its action of June 24, 1980, did not constitute a change in conditions of employment. The evidence is quite clear to the contrary. Therefore, I conclude and fmd that when the Re- spondent here offered its employees a choice of accept- ing the Respondent's unlawful repudiation of its statutory bargaining obligations and working under unlawfully im- posed conditions of employment or quitting their em- ployment, it constructively discharged the employees in violation of Section 8(a)(3) and (1) of the Act. The em- ployees' continued employment would have been condi- tioned on their abandonment of rights guaranteed them under the Act; that is, the right to bargain collectively CITY ELECTRIC 455 through representatives of their own choosing. Forcing employees to make such a choice discourages union membership almost as effectivley as actual discharge. Electric Machinery Co., 243 NLRB 239 (1979). See also Superior Sprinkler, 227 NLRB 204 (1976); Dust-Tex Serv- ice, 214 NLRB 398 (1974). Accordingly, I therefore conclude and fmd that on June 24, 1980, Respondent constructively discharged its employees Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey in violation of Section 8(a)(3) and (1) of the Act.9 CONCLUSIONS OF LAW 1. City Electric, Inc. is an employer engaged in com- merce and activities affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all pertinent times, the members of the Associa- tion constituted an employer engaged in commerce and a business affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 3. International Brotherhood of Electrical Workers, Local Union Number 1317 is a labor organization within the meaning of Section 2(5) of the Act. 4. All employees who are employed by members of the Central Mississippi Chapter (Laurel Division) of the National Electrical Contractors Association, Inc., within and under the jurisdiction of the Union in the counties of Jones, Wayne, Smith, Jasper and Covington, Mississippi, excluding all other employees, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 5. The Union has been at all times material to this case a recognized representative of the employees in the above appropriate unit and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all employees in the above appropriate unit for the purposes of collective bargaining. 6. On June 24, 1980, Respondent, by refusing to honor, implement, abide by, and execute the collective-bargain- ing agreement, negotiated by the Association and Union, engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. Respondent, by withdrawing recognition from the Union on June 24, 1980, engaged in unfair labor prac- 9 Although not specifically alleged in the complaint but fully litigated, I find that the Respondent's actions on June 24, 1980, as factually set forth supra, constituted an unlawful withdrawal of recognition of the Union of recognition of the Umon in violation of Section 8(a)(5) and (1) of the Act. Such findings are permissible when the matters are related to those alleged and are fully litigated even though not specifically alleged. See lax Mold & Machine, 255 NLRB 942 fn. 2 (1981). tices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Respondent, by constructively discharging on June 24, 1980, Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey, engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found the Respondent violated Section 8(a)(5), (3), and (1) of the Act, it will be directed to cease and desist from engaging in the conduct found unlawful here or any like conduct. Since having found that the Re- spondent unlawfully refused to honor, implement, abide and execute the 1980-1981 Association-Union agree- ment, I shall recommend the issuance of an order direct- ing the Respondent to cease and desist from its refusal to comply with the terms and conditions of the agreement and to make whole the employees in the unit found ap- propriate for any loss of wages or other benefits they may have suffered by virtue of Respondent's noncompli- ance with the terms of the agreement from on and after June 24, 1980, with interest on the sums due. Having found that Respondent unlawfully withdrew recognition from the Union, I shall recommend that the Respondent be required to recognize and, on request, bargain with the Union. Further, having found that Respondent vio- lated the Act by constructively discharging four of its employees, I shall recommend that Respondent be or- dered to immediately reinstate Benny Sugges, J. J. Eddy, Ralph M. Walker, and R. C. Bailey to their former jobs or, if those jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings and compensation they may have suffered because of the unlawful discrimination against them by constructively discharging them on June 24, 1980. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950,) with interest computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977), enf. denied on other grounds 322 F.2d 913 (9th Cir. 1963). I shall also recommend Respondent post the attached notice. [Recomnended Order omitted from publication.]