Riley Electric, Inc.

374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Riley Electric, Inc. and International Brotherhood of Electrical Workers, Local No. 68. Case 27- CA-7674 July 29, 1988 DECISION AND ORDER Y CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 21, 1983, Administrative Law Judge Frederick C. Herzog issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief,' the • Charging Party filed cross-ex- ceptions and a brief in support thereof and in oppo- sition to the Respondent's exceptions, the General Counsel filed cross-exceptions and an answering brief, and the Respondent 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings, and conclusions as modified only to the extent consistent with this Decision and Order. The facts are set out more fully in the judge's decision. The judge found that on March 26, 1980, the Respondent, an electrical contractor in the con- struction industry, executed a letter of assent-A with the Charging Party (the Union) to the "inside" agreement between the National Electrical Contractors Association (NECA) and the Union. On August 12, 1980, the Respondent executed a letter of assent-A with the Union to the "residen- tial" agreement between NECA and the Union. The letters of assent authorize the Rocky Mountain Chapter of NECA to act as the Respondent's col- lective-bargaining representatives for all matters contained in or pertaining to the applicable collec- tive-bargaining agreements between NECA and the Union.2 By its execution of the letters of assent, the Respondent delegated bargaining authority to NECA and, as a consequence, bound the Respond- ent to the terms of the inside agreements effective April 1, 1980, to March 31, 1981, and April 1, 1981, to March 31, 1983, and to the terms of the residential agreements effective January 1, 1979, to December 31, 1980; January 1, 1981, to December 31, 1981; and January 1, 1982, to December 31, I The Respondent has requested oral argument. The request is denied as the record, exceptions, cross-exceptions, and briefs adequately present the issues and the positions of the parties. 2 The authorizations specify that they shall remain in effect until termi- nated by the Respondent giving written notice to NECA and the Union at least 150 days prior to the then current anniversary date of the applica- ble agreement. 1982. Nelson Electric, 241 NLRB 545 (1979); Reli- able Electric Co., 286 NLRB 834 (1987). From April 1, 1980, through May 19, 1981, the Respondent abided by all the terms and conditions of both the residential and inside agreements, in- cluding those relating to the payment of trust fund contributions and to the exclusive use of the Union's hiring hall. It is undisputed that on May 20, 1981, the Respondent ceased abiding by the terms of these agreements. By letter of August 31, 1982, the Respondent no- tified the Union that it was terminating "all con- tracts and agreements" between the Respondent and the Union. By letter of September 1, 1982, the Respondent notified the Union of its intent to ter- minate the residential agreement effective Decem- ber 31, 1982. By letters of September 1, 1982, the Respondent also notified the Union and NECA that it had terminated the residential letter of assent-A and the authorization of bargaining au- thority to NECA contained therein. Applying the then applicable "conversion" doc- trine, the judge found that the parties' 8(f) prehire contractual relationship had ripened into a "tradi- tional" 9(a) majority relationship and that the Re- spondent had violated Section 8(a)(5) and (1) by re- pudiating its bargaining agreements with the Union. In John Deklewa & Sons, 282 NLRB 1375, 1377 (1987), the Board abandoned the conversion doc- trine and 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 agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. The Board also noted, at footnote 41 of Deklewa, that it will require the party asserting the existence of a 9(a) relationship to prove it. We find, in agreement with the judge, that the Respondent voluntarily entered into a contractual relationship with the Union by virtue of its execu- tion of the letters of assent.3 Under Deklewa, the a We find no merit to the Union's contention that the relationship be- tween the Respondent and the Union was, from its inception, a 9(a) rela- Continued 290 NLRB No. 48 RILEY ELECTRIC Respondent became bound for the term of the ap- plicable residential and inside agreements under Section 8(a)(5) and (1). Accordingly, the Respond- ent's unilateral repudiation on May 20, 1981, when governing agreements remained "binding , enforcea- ble, and not subject to unilateral repudiation" vio- lated Section 8(a)(5) and (1). Deklewa, above. As the complaint and the record is directed to the re- pudiation of the residential agreements effective to December 31, 1981 , and December 31, 1982, and to the repudiation of the inside agreement effective to March 31 , 1983, we shall provide a make-whole remedy directed to the terms of these agreements.4 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist and take certain affirmative action necessary to effectuate the policies of the Act. We shall order the Respondent to comply with the terms of the "residential" agreements with the Union from May 20, 1981, to December 31, 1982, and to the "inside" agreement from May 20, 1981 , to March 31 , 1983. We also shall order the Respondent to make its employees whole,5 as pre- scribed 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 "residential" agreements from May 20, 1981, to tionship. Rather, we find that the relationship between the Respondent and the Union was governed at all pertinent times by Sec . 8(f). The Union contends that the initial agreement executed by the Respondent was undertaken pursuant to Sec. 9(a) because the Respondent was a suc- cessor to an employer, Economy Electric (Economy), having an agree- ment with the Union . We note, however, that under Deklewa, the Union, as a party asserting the existence of a 9(a) relationship, has the burden of proving such a relationship As the Union has failed to demonstrate that it attained 9(a) status with respect to either the employees of the Re- spondent or those of Economy by means of a Board election or volun- tary recognition pursuant to a showing of majority support , it has not sat- isfied its burden under Deklewa. Moreover, the record establishes that Economy, the purported "predecessor," remained in operation after the Respondent, the purported "successor," commenced operations . Thus, it appears that the Respondent independently secured a construction project started initially by Economy, executed an 8(f) prehire agreement with the Union, and then hired employees formerly working at the project to complete the project pursuant to the hiring hall provisions of the newly executed agreement. 4 Accordingly, we express no view regarding the applicability of any successor agreements pursuant to the terms of the letters of assent. S In his decision the judge failed to order the Respondent to pay its employees wage benefits set forth under the terms of the repudiated agreements. We find merit in the cross-exceptions of the General Counsel and the Union that such a remedy is appropriate. Whether there are any individuals entitled to be made whole because they were denied an opportunity to work because of the Respondent's failure to continue using a contractual hiring hall is best left to the com- pliance stage of this proceeding. See, e.g., Southwestern Steel, 276 NLRB 1569 In 1 (1985), and Wayne Electric, 226 NLRB 409 (1976). We recog- nize, in this regard, that enforcement of the hiring hall provisions con- tained in the applicable agreements may be at odds with the view of the court of appeals, expressed in Robertson v. NLRB, 597 F.2d 1331 (10th Cit. 1979). In this proceeding, however, the issue has been raised solely to remedy the Respondent's unfair labor practices and does not have a bearing on the merits of the unfair labor practices found 375 December 31, 1982, and to the "inside" agreement from May 20, 1981, to March 31 , 1983, with inter- est as computed in New Horizons for the Retarded.6 ORDER The National Labor Relations Board orders that the Respondent, Riley Electric, Inc., Denver, Col- orado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Repudiating the January 1, 1981-December 31, 1981, and January 1, 1982-December 31, 1982, "residential" collective-bargaining agreements be- tween the Respondent and the Union and the April 1, 1981-March 31 , 1983, "inside" collective-bar- gaining agreement between the Respondent and the Union. (b) 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 unit 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 "residential" agreements with the Union from May 20, 1981, to December 31, 1982, and to the "inside" agreement with the Union from May 20, 1981, to March 31, 1983 . The appropriate unit is: Those employees of ours who perform work which is described in and covered by the Jan- uary 1 , 1981 and Janaury 1, 1982, Denver Res- idential Wiring Agreements and those employ- ees who perform work which is described in and covered by the April 1 , 1981 , Denver Inside Electrical Construction Agreement, each such agreement being between the Rocky Mountain Chapter of the National Electrical Contractors Association and the Local Union No. 68, International Brotherhood of Electri- cal Workers. (b) Pay to the appropriate funds, with interest, the health and welfare, pension, apprentice train- " 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). Because the provisions of employees 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 to the trust funds shall be determined in accordance with the procedure set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn 7 (1979). 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, and other contributions required to be paid under the collective-bargaining agreements by which it has been found to have been bound. (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 money due under the terms of this Order. (d) Post at its facility in Denver, Colorado, copies of the attached notice marked "Appendix."7 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. (e) Sign and return to the Regional Director suf- ficient copies of the attached notice marked "Ap- pendix" for posting by the Union, 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. cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole, with interest, the unit employees who have incurred losses of wages and benefits because of our failure to abide by the terms and conditions of the collective-bargaining agreements between our company and the Union, until the residential agreement's expiration on De- cember 31 , 1982, and the inside agreement's expira- tion on March 31, 1983 . The appropriate unit is: Our employees who perform work which is described in and covered by the January 1, 1981 and January 1 , 1982, Denver Residential Wiring Agreements and those employees who perform work which is described in and cov- ered by the April 1, 1981, Denver Inside Elec- trical Construction Agreement, each such agreement being between the Rocky Mountain Chapter of the National Electrical Contractors Association and Local Union No. 68 of the International Brotherhood of Electrical Work- ers. WE WILL pay to the appropriate funds the health and welfare, pension, apprentice training, and other contributions required to be paid by the collective- bargaining agreement or agreements to which we have been bound. RILEY ELECTRIC, INC. 7 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 repudiate the January 1, 1981-De- cember 31, 1981, and January 1 , 1982-December 31, 1982, "residential," and the April 1, 1981- March 31, 1983, "inside" collective-bargaining agreements between our company and Internation- al Brotherhood of Electrical Workers, Local No. 68, during the term of those agreements. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- Ernest L Duran Jr. and T. Michael Patton, Esgs., for the General Counsel. Lawrence W. Marquess, Esq. (Bradley, Campbell & Carney), of Golden, Colorado, for the Respondent. Philip Hornbein Jr., Esq., of Denver, Colorado, for the Charging Party Union. DECISION STATEMENT OF THE CASE FREDRICK C. HERZOG, Administrative Law Judge. I heard this case in trial on October 13, 1982, at Denver, Colorado. International Brotherhood of Electrical Work- ers, Local No. 68 (the Union) filed an original charge on December 31, 1981, against Riley Electric , Inc. (the Re- spondent). Pursuant thereto , on April 16, 1982, the Re- gional Director for Region 27 of the National Labor Re- lations Board issued a complaint and notice of hearing against the Respondent. The complaint alleges in substance that the Respond- ent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act), by refusing to comply with and repudiating certain collective-bargaining agreements. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Based on the entire record, from my observation of the demeanor of the wit- RILEY ELECTRIC nesses, and having considered the posttrial briefs submit- ted on behalf of the parties, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION The complaint alleges and the answer ' admits the fol- lowing facts. The Respondent is now , and at all times material has been, a corporation duly organized and ex- isting by virtue of the laws of the State of Delaware, and maintains its principal office and place of business in Denver, Colorado, where it is, and at all times material has been, engaged in electrical contracting in the con- struction industry. Further, the Rocky Mountain chapter of the National Electrical Contractors Association (NECA), has been an organization composed of employ- ers engaged in electrical contracting in the construction industry in the State of Colorado and which exists for the purpose, inter alia, of representing its employer-mem- bers and/or employers who have assigned bargaining rights to it in negotiating and administering collective- bargaining agreements with the Union. NECA's mem- bers annually purchase and receive goods and materials in the course and conduct of their combined business op- erations having a value in excess of $50,000 directly from points and places outside the State of Colorado. During the calendar year ending December 31, 1981, the Re- spondent in the course and conduct of its operations pro- vided services valued in excess of $50,000 for other busi- ness enterprises, including the First National Bank of Longmont within the State of Colorado, over which the Board would assert jurisdiction on some basis other than indirect standards . Therefore, in accordance with the Re- spondent's admission at trial, I find and conclude that the Respondent and NECA are now, and at all times materi- al have been, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Alfred and Bonnie Riley are man and wife. For sever- al years preceding April 1, 1980, Alfred Riley was half- owner of a corporation known as Economy Electric Company, which was, and still is, engaged in work simi- lar to that which has since been performed by the Re- spondent. Economy Electric Company was, and is, a party to the collective-bargaining agreement between NECA and the Union dealing with "inside" electrical work. Although he was half-owner of Economy Electric Company, Alfred Riley served as its vice president and was in charge of its field operations; evidently his co- owner, who bought him out, attended to administrative work and sales work .2 Economy Electric Company was, I As amended at the hearing. 2 The co-owner's wife was a full-time employee of NECA. 377 and by all that appears may remain , a member of NECA, operating pursuant to NECA's collective-bargaining agreement with the Union. In April 1980 Alfred Riley became interested in setting up a separate business. He talked to the Union's business manager about becoming a union contractor, and was given a "laundry list" of things to do in order to carry out his plans. One of the items on the "laundry list" called for him to execute a "letter of assent" to the "inside" agreement between NECA and the Union. For the first few months of its existence the Respond- ent was not incorporated. Instead it operated as a sole proprietorship, owned entirely by Alfred Riley's wife, Bonnie. Bonnie Riley, however, was nothing more than a figurehead in the business. She did whatever her hus- band told her to do, and she did nothing unless he told her to do it. Alfred Riley placed her in the position of ownership of the business as a means of "skirting around" certain union rules that might interfere with his desire to either obtain benefits from the Union or to con- tinue work with the tools of the electrician's trade. On March 26, 1980, Bonnie Riley, at Alfred Riley's di- rection, went to the Union's offices and signed a "letter of assent" to the "inside" agreement between NECA and the Union.3 Both of the Rileys professed to have little understand- ing of the meaning or significance of the act of signing the "letter of assent." Bonnie Riley claimed to have signed the "letter of assent" solely because her husband asked her to do so, though she did know that he would be enabled to hire union members . Alfred Riley claimed that despite his 20 years' experience as a member of the Union, and 3 years' experience as an officer and owner of a corporation that was a member of NECA and a party to a collective-bargaining agreement between NECA and the Union, his particular expertise lay only in performing electrical work rather than in understanding administrative or legal matters. Around the same time that Bonnie Riley signed the "letter of assent," Alfred Riley began talking to employ- ees of Economy Electric Company, who were then working on the Economy Electric's project know as Earth Science Institute, about "switching over" from Economy and going to work for his new business. (Alfred Riley had succeeded in taking over the Earth Science Institute project from Economy Electric Contin- gent on this ability to retain the same employees who had been working on it for Economy Electric.) He se- cured the employees' agreement and, as he had been ad- vised to do by the Union 's agent, instructed each of the s The text of the "letter of assent" read , in relevant part, as follows: In signing this letter of assent , the undersigned firm does hereby authorize Rocky Mountain Chapter , NECA as it collective bargain- ing representative for all matters contained in or pertaining to the current approved Residential labor agreement between the Rocky Mountain Chapter, NECA and Local Union 68 IBEW . This authori- zation, in compliance with the current approved labor agreement, shall become effective on the 2 day of July 1980. 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 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees "making the switch" to go down to the Union's office and notify the Union that they were no longer working for Economy Electric so that they could immediately be referred out to Riley Electric pursuant to the Union's hiring hall provisions with NECA.4 On or about August 12, 1980 Bonnie Riley once more went to the Union's offices and executed a "letter of assent." On this occasion the "letter of assent" related to the collective-bargaining agreement between NECA and the Union, which had to do with "residential" work. The "letter of assent" was made effective, retroactive to July 2, 1980, so that certain health and welfare benefit payments could be credited properly.5 The Respondent's corporation came into being in Oc- tober 1980 when the sole proprietorship known as Riley Electric Company was issued articles of incorporation. Respondent concedes that from April 1, 1980, through May 19, 1981, the Respondent hired only members of the Union and that it did so through the Union 's hiring hall.6 During this period of time the Respondent made trust fund contributions on behalf of all its employees as re- quired by the relevant collective -bargaining agreement between NECA and the Union . Respondent paid its em- ployees union scale and abided by all the terms and con- ditions of both the residential and inside agreement be- tween NECA and the Union until May 19 , 1981.7 On May 20, 1981, the Respondent, for the first time, hired a nonunion employee. Since then it has hired five additional electricians and at the time of the hearing, had employed six electricians . None were hired through the Union's hiring hall . Neither were they paid wages ac- cording to the NECA collective-bargaining agreement with the Union. No contributions to health and welfare trust funds were made on their behalf. Alfred Riley con- ceded that the work being performed by the nonunion • The parties stipulated at the trial that the following employees of those employers that are ultimately determined in this case to be part of a multiemployer collective-bargaining group represented by NECA consti- tute units appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act: (a) Those employees who perform work which is described in and covered by the January 1, 1981 and January 1 , 1982, Denver Resi- dential Wiring Agreements between the Association and the Union (b) Those employees who perform work which is described in and covered by the April 1 , 1981, Denver Inside Electrical Construction Agreement between the Association and the Union Each of the agreements referred to, plus others in evidence, stipulates that the agreements "shall apply to all firms who sign a 'letter of assent' to be bound by this agreement" between the Rocky Mountain Chapter, National Electrical Contractors Association , Inc and Local Union 68, IBEW. Each agreement also made detailed provisions for matters such as union security, exclusive hiring hall or referral procedure, grievance, ap- prenticeship program, and many matters relating to wages and working conditions. B Each of the "letter of assent" signed by Bonnie Riley on behalf of the business known as Riley Electric and/or her husband , Alfred, provided that they should remain in effect until terminated by Riley Electric giving written notice to NECA's Rocky Mountain Chapter and to the Union at least 150 days before the then current anniversary date of the relevant labor agreement There was one exception insofar as membership was concerned, but even that employee was referred through the Union 's hiring hall T The inside agreement in effect on March 26 , 1981, was renewed on April 1, 1980, for a 1 -year term, and renewed again on April 1, 1981, for a 2-year term. The residential agreement in effect on August 12, 1980, was renewed for 1-year terms on January 1, 1981, and again on January 1, 1982. electricians is the same work performed by the union electricians he previously employed , and is work gov- erned by the collective-bargaining agreement . Those em- ployees on the payroll , some seven in number, as of May 20, 1981 , who had been previously referred to the Re- spondent by the Union were terminated on various dates between July 14, 1981, and January or February 1982. The parties stipulated that the Respondent repudiated both the residential and the commercial , or inside, collec- tive-bargaining agreements . Evidently this stipulation refers to a constructive repudiation, for it is clear that the Respondent did not terminate its delegation of bar- gaining authority to NECA for either agreement prior to the renewal dates previously mentioned . It was not until August 31 , 1982, that Alfred Riley wrote a letter to the Union stating, "Let this letter serve as official notifica- tion for the termination of'all contracts and agreements between Riley Electric Inc. and Electrical Workers I.B.E.W. Local Union #68." On September 1, 1982, he once again wrote the Union, as well as the Rocky Moun- tain Chapter of NECA, undertaking to serve notice of his intent to terminate the collective-bargaining agree- ment and offering to meet and confer with the Local Union for the purpose of negotiating a new contract. Alfred Riley conceded in his testimony that these letters were written as "safety valves," to guard against the loss of this case. On February 10, 1981, the Union filed a grievance against the Respondent claiming that the Respondent had failed to pay the contractually agreed -on wage rate for overtime work. Alfred Riley appeared at the hearing on the grievance, when he neither sought nor was he of- fered advice from NECA in defense of the grievance. The grievance was decided in favor of the Union and the Respondent abided by the decision. In October of 1980, the yellow pages of the telephone directory in Denver, Colorado, appeared . The Respond- ent's advertisement there included the NECA symbol. Shortly thereafter, according to Alfred Riley's testimony, he was called by an officer of NECA and advised that the NECA symbol would have to be removed from the advertisement . Riley agreed, saying that the symbol had been included erroneously. The symbol was removed at the next opportunity. Respondent concedes that it was signatory to the col- lective-bargaining agreement with the Union , but argues that neither the Respondent nor Bonnie or Alfred Riley had ever been members of NECA or applied for mem- bership, or ever sought to or had any involvement in the negotiations between NECA and the Union , and that NECA is not party to either of the "letter of assent" signed by or on behalf of the Respondent. Conclusions Principles of industrial democracy embodied within the Act assure employees against the prospect of repre- sentation by a union except when the employees have freely chosen such representation for themselves. Section 9(a) of the Act provides that RILEY ELECTRIC Representatives designated or selected for the pur- poses of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. There are, of course, exceptions to the general rule. One of these is found in cases involving employers within the building and construction industry. The Act was amended in 1947, as Congress recognized the need to deal with problems that had a peculiar impact on the building and construction industry . Under traditional principles, construction industry employers and unions had been previously prevented from entering into collec- tive-bargaining agreements before the establishment of the union's majority status. Section 8(f) was included among the 1947 amendments to the Act, and was enacted in large part to immunize employers and unions in the building and construction industry from the strictures of Section 8(a) and (b) of the Act in situations where recognition is granted and a col- lective-bargaining agreement is entered into before the recognized labor organization's majority status has been established under the provisions of Section 9 of the Act. See NLRB Y. Iron Workers Local 103, 434 U.S. 335 (1978); cf. Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961). Section 8(f) of the Act reads, in pertinent part, as fol- lows: It shall not be an unfair labor practice under subsec- tions (a) and (b) of this section for an employer en- gaged primarily in the building and construction in- dustry 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 an action defined in section 8(a) of this Act as an unfair labor prac- tice) because (1) the majority status of such labor organization has not been established under the pro- visions of section 9 of this Act prior to the making of such agreement. There can be little doubt that when the Respondent exe- cuted the "letters of assent" with the Union it thereby entered into a contractual relationship with the Union. Apart from the difficulty I have in crediting the testimo- ny of Alfred Riley to the effect that he was uninformed respecting the effects of such a contract, I find that the "letters of assent," themselves, have a clear and unambig- uous meaning conveyed on their face. Neither the pro- fessed lack of understanding by Alfred Riley nor the al- leged failure to explain the contract's import, as testified to by each of the Rileys, seems to be sufficient to war- rant a finding that Respondent should be held to have entered into a contractual relationship without an ade- quate meeting of the minds. Indeed, even the Respond- ent, in its brief, concedes that the agreements between 379 the Respondent and the Union were 8(f) agreements.8 The essential question in this case is whether the 8(f) contract between the Respondent and the Union was ever transformed into a Section 9 relationship . For it is well established that during the term of an 8(f) contract an employer may withdraw recognition from the Union and/or unilaterally make changes in the contractual working conditions without violating Section 8(a)(5) unless the Union has obtained a majority status and a 9(a) bargaining relationship had developed. See R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom . Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), decision on remand 208 NLRB 615 (1974); Ruttmann Construction Co., 191 NLRB 701 (1971); Dee Cee Floor Covering, 232 NLRB 421 (1977); cf. Higdon Contracting, supra. It seems clear that the complaint , which alleges a vio- lation of Section 8(a)(5), can be found meritorious only if the 8(f) relationship was ever transformed into a Section 9 relationship . This issue will turn on whether the Union became the majority representative among the employees affected; since an 8(f) contract can exist without majority status there is no presumption of majority status that flows from the mere existence of an 8(f) contract. R. J. Smith Construction Co., supra; Dee Cee Floor Covering, supra. A union cannot rely on the mere passage of time to transform an 8(f) relationship into a majority 9(a) rela- tionship. Instead, evidence is required showing that sometime during the parties' collective -bargaining rela- tionship, the union obtained either actual majority status or at least a presumption of majority status in an appro- priate unit. The General Counsel contends that the necessary showing has been made in this case . He argues that by executing the "letters of assent" the Respondent not only entered into a relationship with the Union but also joined the existing multiemployer association unit. From that, he concludes that the Respondent's present and prospec- tive work force was immediately merged into a multiem- ployer unit and simultaneously the Respondent 's 8(f) re- lationship with the Union was merged into the 9 (a) rela- tionship already in existence between the Union and NECA, citing Authorized Air Conditioning Co., 236 NLRB 131 fn. 2 (1978), enfd. 606 F.2d 899 (9th Cir. 1979); Amando Electric, 238 NLRB 37 fn. 1 (1978). The Respondent argues vigorously for a contrary result, and a finding that the Respondent never became a member of the multiemployer unit. Based on the record made that , among other things, the Respondent secured the services of each of its em- ployees through the hiring hall of the Union, and that "The General Counsel 's position is similar, although the General Counsel contends that the relationship was immediately thereafter modi- fied, as discussed infra. The Charging Party/Union advances the agree- ment that , for various reasons, the Respondent entered not merely into an 8(f) agreement, but one possessing all the attributes and entitled to all the protections accorded a collective -bargaining agreement entered into pur- suant to Sec. 9(a) of the Act In light of the General Counsel's decision not to pursue the several theories advanced by the Union. and in view of my decision, which grants the Union relief, albeit on the General Coun- sel's theory, I see no reason to decide each of the points raised by the Union 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD each such employee was a member of the Union during the time period immediately following the execution of the "letter of assent ," I find clear warrant for the finding, which I make, that at relevant times after Respondent's 8(f) agreement was executed with the Union, the Union was the majority representative of the Respondent's em- ployees. Consequently, I find that the 8(f) agreements ripened into traditional collective-bargaining agreements to which Respondent was bound . I note that throughout this period the Respondent was paying the wages called for in the Union's contract, was contributing to the health and welfare benefit programs that existed by virtue of the Union's collective-bargaining agreement with NECA, that the Respondent obtained all employees through the Union's hiring hall, and that the Respondent abided by the grievance machinery contained within the agreements between NECA and the Union. Under these circumstances it seems clear that the Respondent was not privileged to repudiate its collective -bargaining agree- ment with the Union when it did so. See Haberman Con- struction Co., 236 NLRB 79 fn. 1 (1978); and V M Con- struction Co., 241 NLRB 584 fn. 1 (1979). I also conclude, in agreement wih the General Coun- sel, that the Respondent voluntarily joined the Rocky Mountain Chapter of NECA. In Ruan Transport Corp., 234 NLRB 241, 242 (1978), the Board stated several of the governing principles, as follows: The Board has consistently held that "the essential element waranting the establishment of multiem- ployer units is clear evidence that the employers un- equivocally intend to be bound in collective bar- gaining by group rather than by individual action. The correlative standard for excluding an employer from such a unit is evidence of an intent to pursue an individual course of action with respect to labor relations." As a general rule, the Board has found that an employer does not become a part of a multi- employer bargaining group (i.e., it does not intend to be bound by group bargaining) where it merely adopts a collective-bargaining agreement in the ne- gotiation of which it did not actually participate and which it did not authorize another to negotiate on its behalf. Here the "letters of assent" signed by Respondent con- tained the sort of delegations of bargaining authority to NECA that had been repeatedly held to furnish suffi- cient evidence of the Employer's intent to join with NECA and to become part of the multiemployer bar- gaining unit . Indeed, there have been instances in which the language demonstrating the intent to be bound was identical to that which is found in this case . See Nelson Electric, 241 NLRB 545 (1979); and Hayden Electric, 256 NLRB 601 (1981). Thus, the Respondent's repudiation of its collective- bargaining agreement with the Union was clearly unlaw- ful and violative of Section 8(a)(5) and (1) of the Act.9 Finally it must be noted that the Respondent failed to give the sort of notice required by Section 8(d) of the Act before it repudiated its contract with the Union. By such a failure the Respondent must be held to have vio- lated Section 8(a)(5) and (1) of the Act. Amanda Electric, supra: Oak Cliff-Golman Banking Co., 202 NLRB 614 (1973), and 207 NLRB 1063 (1973). On the basis of these findings of fact and on the entire record in this proceeding, I make the following CONCLUSIONS OF LAW 1. Riley Electric, Inc. is an employer engaged in com- merce 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. Those employees who performed work that is de- scribed in and covered by the January 1, 1981, and Janu- ary 1, 1982 Denver Residential Wiring Agreements and those employees who perform work that is described in and covered by the April 1 , 1981 Denver Inside Electri- cal Construction Agreement between the Rocky Moun- tain Chapter of the National Electrical Contractors Asso- ciation and Local Union No. 68 of the International Brotherhood of Electrical Workers, including those em- ployed by Riley Electric, Inc., constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times since on or about April 2, 1980, the Union has been and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(c) of the Act. 5. By on or about May 20, 1981 , repudiating the terms of the collective-bargaining agreement negotiated be- tween the Union and the Association , and by repudiating the Union as collective-bargaining representative of its employees, Riley Electric, Inc. has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 9 It must be remembered that this is not a case involving a question of whether timely notice was given . Here, the Respondent failed to give any notice whatsoever to the Union until months had passed after it repu- diated the agreements Even then, the notices given to the Union were not necessarily the sort of evidence of clear intent required , but rather were an effort by the Respondent to limit its losses should this case be lost