Stack Electric, Inc.

STACK ELECTRIC Stack Electric, Inc. and International Brotherhood of Electrical Workers, Local No. 110, AFL- CIO and International Brotherhood of Electri- cal Workers, Local No. 292, AFL-CIO North Town Electric, Inc. and International Broth- erhood of Electrical Workers, Local No. 110, AFL-CIO and International Brotherhood of Electrical Workers, Local No. 292, AFL-CIO Bakken Electric, Inc. and International Brotherhood of Electrical Workers, Local No. 292, AFL- CIO Fowser Electric Co. and International Brotherhood of Electrical Workers, Local No. 292, AFL- CIO. Cases 18-CA-8610-1, 18-CA-8611-3, 18-CA-8610-2, 18-CA-8611-4, 18-CA-8611- 1, and 18-CA-8611-2 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On August 30, 1985, Administrative Law Judge David S. Davidson issued the attached decision. The General Counsel and the Charging Parties filed exceptions and supporting briefs; counsel for Respondents Stack Electric, Inc., Bakken Electric, Inc., and Fowser Electric Co. filed exceptions and a supporting brief; Respondent North Town Elec- tric, Inc. filed exceptions ; Respondents Stack Elec- tric, Inc., Bakken Electric, Inc., and Fowser Elec- tric Co. filed a brief in response to the opposing parties' exceptions, and the National Electric Con- tractors Association and the International Brother- hood of Electrical Workers, AFL-CIO jointly filed a brief amicus curiae. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member' panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. Preliminarily, we note that the General Counsel did not allege, and does not contend, that any of the four Respondents in this consolidated proceed- ing individually meets the Board's standards for as- sertion of jurisdiction. In addressing this threshold issue, the judge con- cluded that "for jurisdictional purposes the com- bined businesses of employers bargaining through associations may be considered if their employees comprise a multiemployer unit." However, as the judge also correctly noted, in order for employees of an individual employer to become merged into a 575 multiemployer unit, there first must have been some indication that the employees in the single unit had given their assent to becoming part of the multiemployer unit . As the judge explained, such employee assent could be given by a union if the union had previously obtained majority support in that single unit. He further found, as a factual matter, that only in the case of Respondents North Town and Bakken was there evidence of employee assent to becoming part of the multiemployer unit. Specifically, the judge concluded that North Town's predecessor, Helms Electric, and subse- quently North Town, had hired an employee for whom it made payroll reports, fund contributions, and dues contributions to Local 292; that for that period, North Town (and Helms before that) had a stable and permanent complement of that one em- ployee and, after that employee left, a permanent and stable complement consisting of one employee who was a member of Local 110. Thus, the judge concluded that North Town's employees were merged into the multiemployer units under con- tract between the NECA Chapters and Locals 292 and 110. As to Respondent Bakken, the judge found that Bakken utilized the Local 292 hiring hall through 1980; and that Bakken's employees were therefore merged into a multiemployer unit and, because of that, the question of the Union's majority among Bakken's own employees was no longer material. In considering jurisdiction over Respondent Fowser, the judge concluded that the full -time em- ployee hired by Fowser was neither hired through the referral system nor a union member. Similarly there was no evidence that any of the four employ- ees (employed essentially one at a time) of Stack were either members of the Unions or had author- ized either of the Charging Party Unions to repre- sent them. Accordingly, the judge concluded that neither Fowser's nor Stack's employees were merged into the multiemployer unit . He further found that there was no evidence that either Fowser's or Stack's operations by themselves met the Board's jurisdictional standards, and he there- fore ordered that the complaints against Stack and Fowser be dismissed for lack of jurisdiction. All parties have excepted to different portions of the judge's decision. Thus, the General Counsel, the Charging Parties, and the amici assert that the judge erred in finding no jurisdiction over Re- spondents Fowser and Stack . Specifically, these parties contend that signing the Letter of Assent immediately merged all the Respondents into a mul- tiemployer unit, and that this result obtains irre- spective of the wishes of the Employer's employees or indeed irrespective of whether the Employer 290 NLRB No. 73 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has (or had) any employees. Counsel for Respond- ents, on the other hand, contends that the judge erred in asserting jurisdiction over any of the Re- spondents. Thus, Respondents contend that the 8(f) agreements entered into by the Respondents and the Unions were subject to repudiation at any time. Respondents further assert that the complaints here should in any event be dismissed because all the Respondents employed one-person units, for which it is inappropriate to order bargaining, and contend that the decision to dismiss with respect to Re- spondents Fowser and Stack should also be grounded on these additional arguments. We have decided to affirm the judge's result in part and reverse in part, but only for the reasons set forth below. After the judge's decision, the Board held oral argument on several issues involving Section 8(f). Thereafter, the Board decided in John Deklewa & Sons," to abandon the conversion and merger doc- trines relied on by the judge, as they were applied to collective-bargaining agreements/relationships permitted under Section 8(f) of the Act.2 In so doing, the Board held that, in light of the legisla- tive history of Section 8(f) and the prevailing prac- tice in the construction industry, the party to an 8(f) relationship who asserts the existence of a col- lective-bargaining relationship under Section 9(a) has the burden of proving the existence of such a relationship, through either (1) a Board-conducted representation election or (2) a union's express demand for, and an employer's grant of, recogni- tion, based on a clear showing of support for the union among a majority of the employees in an ap- propriate unit. However, we also held in Deklewa that a union signatory to an agreement permitted by Section 8(f) acquires limited status as a repre- sentative under Section 9(a), to the extent that the 8(f) agreement may not be unilaterally repudiated during its term, and may be enforced during its term under the provisions of Section 8(a)(5) and Section 8(b)(3). We further held in Deklewa that in determining appropriate units for election purposes , the Board will no longer distinguish between "permanent and stable" and "project by project" work forces, and single employer units will normally be appropriate. The merger doctrine was rejected in 8(f) cases be- cause it can operate to bind a single employer and 1 282 NLRB 1375 (1987) Y Under the conversion doctrine , a collective-bargaining relationship/- agreement permitted under Sec. 8(f) could "convert" into one cognizable under Sec 9(a) simply on the basis of a showing that , during a relevant period, the union enjoyed the support of a majority of the employer's employees in an appropriate unit Under the merger doctrine , the em- ployer and the union could "merge" employees into a multiemployer unit. employees to full 9(a) status without providing em- ployees the opportunity to express a representation- al preference, as Section 8(f) eliminates majority status as a prerequisite for signing a contract. We clearly stated, however, that we did not imply that multiemployer associations and bargaining could no longer be deemed appropriate in the construction industry. Thus, for the reasons set out in greater detail in Deklewa, the Board decided to apply the following principles in construction industry 8(f) cases: (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer 's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(f) bargaining relationship. Accordingly, we turn to consideration of the facts in this case in light of the reasoning and prin- ciples in Deklewa. I. JURISDICTION There is no question that all the Respondents here are "engaged primarily in the building and construction industry" within the meaning of Sec- tion 8(f) of the Act. The complaints do not allege, and the General Counsel specifically disclaimed, any intent to claim that any of the Respondents in- dividually meet the Board's standards for assertion of jurisdiction. As noted above, the judge found that through application of conversion and merger doctrines, two of the Respondents became mem- bers of the multiemployer unit and , as part of that unit, were therefore subject to Board jurisdiction. Although the Board abandoned the merger and conversion theories in Deklewa, we nevertheless conclude that the Board has jurisdiction here; not only over Respondents North Town and Bakken, but over Respondents Stack and Fowser as well. All four of the Respondent Companies signed the Letter of Assent A proffered by the Unions here. We conclude that the delegation of bargain- ing authority contained in those Letters of Assent is sufficient to warrant the assertion of jurisdiction because it indicates the individual Respondent's intent to be bound by group action, rather than in- dividual bargaining. This is so irrespective of the facts that (1) none of the Respondents was a STACK ELECTRIC 577 member of the Association, and (2) that we find under Deklewa, as set forth below, that the appro- priate units consist of each individual Respondent's employees. By throwing in their lot with the multi- employer association, at least for purposes of nego- tiating a collective-bargaining agreement, the Re- spondents joined forces with a group in an activity that has an indisputable impact on commerce so far as the Act we administer is concerned. II. THE APPROPRIATE UNITS As noted above, the Board has abandoned the conversion/merger doctrines relied on by the judge. Here, there were no Board elections or de- mands for, and voluntary grants of, recognition to the Unions premised on a showing of support for a union among a majority of any Respondent's em- ployees. Rather, the record is clear that the Re- spondents and the Unions voluntarily entered into their respective 8(f) agreements (i.e., the Letters of Assent A proffered by the Unions) without regard to whether that Union had the support of a majori- ty of the employees, or indeed without regard to whether there were any employees at the time. Ac- cordingly, we conclude that there has been no showing that the agreements between the Respond- ents and the Unions are anything other than rela- tionships governed by Section 8(f), and that the ap- propriate units remained those of the individual Re- spondent's employees.3 III. THE BARGAINING OBLIGATIONS Under the first principle of Deklewa, these col- lective-bargaining agreements, although governed by Section 8(f), would nevertheless usually be en- forceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3), under the "strictly lim- ited" 9(a) status which the Union enjoys during the term of that agreement. There is an exception to that general rule, however, which we find applica- ble to all four of the Respondents in this consoli- dated proceeding. In D & B Masonry, 275 NLRB 1403 (1985), the Board adopted the judge's discus- sion of this issue at 1408. It is settled that if an employer employs one or fewer unit employees on a permanent basis that the employer, without violating Section 8(a)(5) of the Act, may withdraw recognition from a union, repudiate its contract with the union, or unilaterally change employees' terms and conditions of employment without afford- ing a union an opportunity to bargain. SAC a To the extent that our holding with respect to the appropriate unit in Vincent Electric Co., 281 NLRB 903 (1986), and other similar cases, is in- consistent with our decision here, they are overruled. Construction Co., 235 NLRB 1211, 1230 (1978); Sunray Limited, 258 NLRB 517, 518 (1981); Chemetrons Corp., 268 NLRB 335 (1983). The basis for permitting an employer to engage in this conduct was explained by the Board in Foreign Car Center, 129 NLRB 319, 320 (1960), as follows: The Board has held that it will not certify a one-man unit because the principles of col- lective bargaining presuppose that there is more than one eligible person who desires to bargain. The Act therefore does not empow- er the Board to certify a one-man unit. By parity of reasoning, the Act precludes the Board from directing an employer to bar- gain with respect to such a unit. While we have held that the Act does not preclude bargaining with a union on behalf of a single employee, if an employer is willing, we have never held that an employer's refusal to bar- gain with a representative on behalf of a one-man unit is a refusal to bargain within the meaning of Section 8(a)(5). In D & B Masonry, the judge found the evidence too "skimpy" to establish that the employees who were employed by the respondent there on an intermittent basis (in addition to the one permanent full-time employee) constituted a permanent and stable work force such as to require the respondent to bargain. An examination of the pattern of em- ployment of those employees by the respondent there showed that during a period of some 19-1/2 months, there was only one regular full-time em- ployee, although for 13 of those months the re- spondent at various times had also employed one of four other bricklayers. In this proceeding, the parties stipulated that Re- spondent Stack employed only the following indi- viduals, besides Stack himself, and only for the pe- riods set forth below: D. Heuring: 6 to 7 weeks from July through December 1981, 13 weeks between April and July 9, 1982, and 1 week in October 1982. J. Arnold: 13 weeks between July 17 and December 1982. J. Doherty: 2 weeks in February-March 1983, and 1 week in January 1984. P. Trunk: 7 weeks in November-December 1983, and 14 weeks between January and May 1984. As to Respondent North Town, it was stipulated that the only individuals employed in addition to Owner Roger Joyce were as follows: 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. Herlofsky: between January 1981 and July 1982. S. Eyler: June through August of 1982 (though only at the same time as Herlofsky for 2 weeks in June). G. Stimson: from late August 1982 through April 1983. S. Eyler in January through March 10, 1984. As to Respondent Fowser, the stipulation shows the following employees during the periods stated: M. Berg: April 13 to June 12, 1980. R. Engelhart: June 13, 1980, through De- cember 1983 . (Fowser's sons also performed odd jobs in the summer of 1983.) The judge noted that Respondent Bakken em- ployed one individual in 1979, and continued to do so thereafter (albeit with some turnover as to the individual employed). Payroll records in evidence show a single employee (albeit different individ- uals) working part time in different quarters, and Bakken testified without contradiction that the sole individual he employed averaged less than full time. We deem the holding in D & B Masonry, supra, dispositive. Indeed, applying the rationale of that case to the facts here, we find these situations present an even stronger case as to each of the Re- spondents, and that the reasoning of D & B com- pels the conclusion that at all material times, each of the four appropriate units consisted of no more than a single employee . Hence, none of the Re- spondents in this proceeding was under a statutory obligation to bargain. Accordingly, we shall dis- miss the complaints in their entirety. ORDER The complaints are dismissed in their entirety. Florence I. Brammer, Esq., for the General Counsel. Douglas Seaton, Esq. (Ponham, Hark, Schnobrich, Kauf- man and Doty, Ltd), of Minneapolis, Minnesota, for the Respondents. Stephen D. Gordon, Esq. (Robins, Zelle, Larson and Kaplan, Ltd.), of St. Paul, Minnesota, for the Charging Parties. DECISION North Town Electric on 3 October 1983, unilaterally re- pudiated collective-bargaining agreements with Interna- tional Brotherhood of Electrical Workers, Local 292 and in that Stack on 29 July 1983 and on 23 November 1983, and North Town on 3 October 1983 and on 23 Novem- ber 1983 unilaterally repudiated collective-bargaining agreements with International Brotherhood of Electrical Workers, Local 110. Respondents deny the commission of any unfair labor practices. A hearing in these cases was held before me in Minne- apolis, Minnesota, on 29, 30, and 31 May 1984.' Briefs have been received from the General Counsel and the Respondents. The principal issues in this case are whether , by sign- ing Letters of Assent authorizing multiemployer associa- tions to act as their collective-bargaining representatives, Respondents became obligated to adhere to successive collective-bargaining agreements negotiated between the Associations and the Unions and, if so, whether Re- spondents later unlawfully repudiated those agreements. Respondents challenge the Board 's assertion of jurisdic- tion over them and raise a number of affirmative de- fenses. On the entire record in this case , including my obser- vation of the witnesses and their demeanor , I make the following FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENTS Stack Electric, Inc. is a Minnesota corporation con- ducting business from the Brooklyn Park, Minnesota resi- dence of Patrick and Colleen Stack. North Town Elec- tric, Inc. is a Minnesota corporation conducting business from the New Brighton, Minnesota residence of Roger and Margaret Joyce . Fowser Electric Co. is a sole pro- prietorship conducting business from the Long Lake, Minnesota residence of its owner Daniel Fowser. Bakken Electric, Inc. is a Minnesota corporation conducting business from the Plymouth , Minnesota residence of Alan and Sheila Bakken. All four named Respondents are engaged as electrical contractors in the building and construction industry. Colleen Stack, sole owner and president of Stack Elec- tric, on or about 10 October 1980, and on or about 16 April 1982, authorized, respectively, the Minneapolis Chapter, National Electrical Contractors Association (M- NECA) and the St. Paul Chapter , National Electrical Contractors Association (S-NECA), to act as the collec- tive-bargaining representatives of Stack Electric ,2 to bar- gain with IBEW Locals 292 and 110, respectively. STATEMENT OF THE CASE DAVID S . DAVIDSON, Administrative Law Judge. In these consolidated cases, the charges were filed on 25 January 1984, the complaints issued on 9 March 1984, and the amended complaints issued on 13 April 1984. The amended complaints allege violations of Section 8(a)(1) and (5) of the Act in that Stack Electric, Fowser Electric, and Bakken Electric each on 29 July 1983, and r On 21 June 1984, the parties jointly moved that the hearing record be reopened for the purpose of entering it Exh 80 , a stipulation concerning information compiled from materials subpoenaed by the General Counsel but not provided prior to the hearing 's close The motion was granted and the exhibit was received Respondents' separate motion to reopen the record was denied. 8 Stack Electric was a sole proprietorship at the time Colleen Stack. owner, signed the Letter of Assent with Local 292 On 12 April 1983, she notified Local 292 of the incorporation of Stack Electric to update the Local's records. STACK ELECTRIC Margaret Joyce, sole owner and president of North Town, on or about 11 March 1981 and on or about 18 March 1981 , authorized M-NECA and S-NECA, respec- tively, to act as the collective-bargaining representatives of North Town to bargain with Locals 292 and 110, re- spectively.3 Daniel Fowser, on or about 25 March 1979, authorized M-NECA to act as the collective-bargaining representa- tive of Fowser Electric with Local 292. Alan Bakken, on or about 11 April 1979, authorized M-NECA to act as the collective-bargaining representa- tive of Bakken Electric with Local 292. M-NECA and S-NECA exist, in part, for the purpose of representing, in the negotiation and administration of collective-bargaining agreements with the respective Unions, those employers who have signed Letters of Assent that so authorize the NECA Chapters. During the calendar year ending 31 December 1983, collectively Respondents and the employer-members of each of the aforementioned NECA Chapters in the course of their business operations purchased and re- ceived at their facilities located within the State of Min- nesota products, goods, and materials valued in excess of $50,000 directly from points located outside the State of Minnesota. Respondents contend that as each only employs one employee, they are not employers within the meaning of the Act. They contend further that jurisdiction cannot be asserted based on their relations with multiemployer as- sociations because they were not members of the associa- tions and never became part of the multiemployer units. The evidence shows that each Respondent , at all times material, employed at least one and at times more than one employee. It is true that "the Board will not require an employer to bargain in a unit consisting of only one employee." Stern Made Dress Co., 218 NLRB 372 (1975). But an employer of 1 is no less an employer within the meaning of the Act than an employer of 100.4 With respect to the second contention, for jurisdiction- al purposes the combined businesses of employers bar- gaining through associations may be considered if their employees comprise a multiemployer unit . Nelson Elec- tric, 241 NLRB 545, 546-547 (1979); Wayne Electric, 226 NLRB 409 (1976). Lack of formal membership in the NECA Chapters is immaterial; the important factor is delegation of bargaining authority to the Associations to represent Respondents in collective bargaining coupled with the indication of an "intention to be bound in col- lective bargaining by group rather than by individual action." Kroger Co., 148 NLRB 569, 573 (1964). Howev- er, for employees to become merged into a multiemploy- er unit there must also be some indication of the employ- ees' assent to becoming part of the multiemployer unit. As set forth more fully below, I find that by signing Let- ters of Assent that authorized the Associations to repre- sent Respondents in future collective bargaining, Re- spondents indicated their intent to be bound in collective 0 As owner of Helms Electric , the predecessor of North Town , Marga- ret Joyce previously had signed a Letter of Assent for Local 292 4 Respondents also contend that they do not meet the definition of em- ployer in the collective-bargaining agreements between the Associations and the Unions The facts do not support this contention. 579 bargaining by group rather than individual action, but that only in the case of North Town and Bakken is there evidence of employee assent to becoming a part of the multiemployer unit. Thus, I find that Respondents North Town and Bakken have been at all times material employers en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the poli- cies of the Act to assert jurisdiction as to them. I find further that in the absence of evidence establishing that Stack Electric or Fowser Electric individually meets the Board's jurisdictional standards, jurisdiction may not be asserted over them. 11. THE LABOR ORGANIZATIONS INVOLVED The Unions are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts i. Background Each of the Respondents in this case was established by an electrician who had worked in the trade as a member of Local 292 for a number of years. Following their decisions to operate their own businesses, these in- dividuals or their wives signed Letters of Assent "A" with the respective Unions. Respondents later repudiated the Letters of Assent and argued that they were not cov- ered by the then-current collective-bargaining agree- ments between the Unions and NECA Chapters. The facts as to each of the Respondents vary in detail and are set forth below. 2. The Letters of Assent Both Unions use the same standard form by which an employer authorizes the applicable NECA Chapter to act as its collective-bargaining representative with the Union. That form reads as follows: Letter of Assent-A In signing this letter of assent, the undersigned firm does hereby authorize as its collec- tive bargaining representative for all matters con- tained in or pertaining to the current approved labor agreement between the and Local Union _ IBEW. This authorization, in compliance with the current approved labor agreement , shall become ef- fective on the day of -, __. It shall remain effective until terminated by the under- signed employer giving written notice to the 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. These letters have been used by the Unions for over 20 years. M-NECA represents over 125 employers signa- tory to such letters; S-NECA represents over 100 em- 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer-signatories. Representatives from both NECA Chapters and from both Unions testified that throughout their long bargaining history employer-signatories of the letters routinely treat them as authorizing the NECA Chapters to bargain for them through successive collec- tive-bargaining agreements for the indefinite future, until the employer-signatories timely withdraw their consent pursuant to the terms of the letters. New letters are not solicited or received at contract expiration time; some have been in effect for as long as 20 years. 3. The collective-bargaining agreements During the periods at issue here, M-NECA and Local 292 had successive collective-bargaining agreements in effect for the following dates: 1 June 1976 31 May 1978 1 June 1978 31 March 1980 1 April 1980 30 April 1982 1 May 1982 30 April 1984 Article I, section 1.01 of the 1982-1984 agreement pro- vides for the year-to-year continuation of the agreement unless it is specifically terminated or modified through procedures established in the agreement. S-NECA and Local 110 had a collective-bargaining agreement effective from 1 May 1982 to 27 April 1984. On 7 October 1983, the parties extended it to 30 April 1986, as a result of bargaining that began no earlier than 9 August 1983 and ended on 21 September 1983. The ex- tension was negotiated pursuant to article I, section 3 of the 1982- 1984 agreement, which subjects the agreement to "change or supplement at any time by mutal consent of the parties." 4. Stack Electric Before going into business, Patrick Stack went to see Owen Schleisman , business representative of Local 292, to find out what he had to do to go in business because he wanted to get commercial jobs. Stack also wanted to continue to make payments to union fringe benefit funds in order to get hospitalization coverage . Schleisman ad- vised him that he could not sign a Letter of Assent but that his wife could. Schleisman gave him a copy to take home to his wife to sign.5 Stack took the letter home and, on 10 October 1980, his wife Colleen Stack signed the Letter of Assent, effective 2 October 1980, authoriz- ing M-NECA to act as Respondent's representative in collective bargaining with Local 292. Colleen Stack was sole owner of Stack Electric and continued as sole owner after it was incorporated on 2 December 1980. In April 1982, Local 110 Business Representative Kelly approached Stack while working on a job in Local 110's jurisdiction and asked if he had signed a Letter of Assent with Local 110. When Stack said that he had not, Kelly told him he had better have one signed. On 16 April 1982, C. Stack signed the Letter of Assent, effective that date, similarly authorizing S- NECA to act as Respondent 's representative in bargain- ing with Local 110. On 12 April 1983, C . Stack sent a letter to Local 292 to update its records by informing it that Stack Electric, previously a sole proprietorship, had incorporated as of 2 December 1980. During Stack's initial visit to the Local 292 hall before his wife signed the Letter of Assent , Local 292 referred Stack to Stack Electric for employment . Stack runs the business with his wife and since the business became in- corporated has been its vice president . Since the latter part of 1981 Stack Electric has employed one additional employee for substantial periods of time and perhaps two for short periods of time. On 29 Jul; 1983, Stack Electric's attorney notified M- NECA and the business managers of Locals 110 and 292 that Stack was withdrawing its bargaining authorization from NECA and that Stack did not consider itself bound to any agreements in effect after 30 April 1982. On 20 September 1983, the attorney for both Unions responded by letter, indicating that , pending his review of the matter, Stack was still bound to both contracts , and on 3 October 1983 the Union's attorney by letter reiterated and amplified the Union's position that Stack was bound to both contracts. 5. North Town Electric In June 1980, Roger Joyce contacted Local 292 Busi- ness Manager Schleisman to find out what he had to do to become a union contractor . Schleisman told him he would have to sign a Letter of Assent. On 2 October he and his wife Margaret went to Schleisman's office where Schleisman repeated what he had said earlier and Marga- ret signed a Letter of Assent as sole proprietor of Helms Electric. Roger had known that it was necessary for his wife to own the business in order for him to work with the tools of the trade and receive fringe benefits. In February 1981, North Town was incorporated with Margaret Joyce as president and sole owner, and i*- became the successor to Helms. When Margaret notified Local 292 of the change, she was asked to sign a new Letter of Assent, and on 11 March 1981, she signed a Letter of Assent for North Town, effective that date, au- thorizing M-NECA to act as North Town's representa- tive with Local 292. On 18 March 1981, M. Joyce signed a Letter of Assent, effective that date, similarly authoriz- ing S-NECA to represent North Town with Local 110. At the time of the Joyces' initial visit to the Local 292 hall, Roger Joyce came off withdrawal status, paid dues, and was referred to Helms as an employee. When North Town was incorporated, Roger became its vice presi- dent, and he and his wife have run the business together. In January 1981 North Town hired Don Herlofsky, who worked continuously until July 1982.6 Later, North 5 Apparently, the reason for putting the business in Colleen Stack's name was to avoid a contractual requirement for employment of a full- time journeyman in addition to a working employer and also to make it possible for Stack to receive fringe benefits 6 The record does not show whether Herlofsky was referred by Local 292 but a monthly payroll report shows that Local 292 dues were de- ducted from his pay STACK ELECTRIC Town hired Warren Stimson on referral from Local 110. Stimson worked continuously from late August 1982 to April 1983. Payroll reports indicate that Stimson was a member of Local 110. In addition, Steven Eyler worked June through August 1982, overlapping with Herlofsky for only 2 weeks, and again from January through mid- March 1984. From February 1981 through November 1982, North Town made payments into the Local 292 benefits fund and from August 1982 through April 1983, North Town made payments into the Local 110 benefits fund. On 3 October 1983, North Town's attorney notified M-NECA and Locals 292 and 110 that North Town was withdrawing its bargaining authorization from NECA and that North Town did not consider itself bound to any agreements in effect after 30 April 1982. On 16 De- cember 1983, the Unions notified North Town that they considered North Town still bound to the agreements. 6. Bakken Electric In 1976 Alan Bakken went into business as a sole pro- prietor. He talked to Local 292 Business Manager Thomas to find out what he could do to freeze retire- ment benefits he had earned . Thomas told him he should sign a residential Letter of Assent and he did. In 1979 his wife called Local 292 to ask what she needed to do to get electricians referred for commercial work. The Union mailed her a Letter of Assent which Alan Bakken signed on 11 April 1979 to be effective that date, author- izing M-NECA to act as Bakken Electric's representative with Local 292 with respects to the inside commercial agreement . Bakken later incorporated his business in 1981 because he believed that if he was an employee he could still work under union rules. Before Bakken signed the Letters of Assent he had one other employee besides himself. After that he hired three or four employees through the Local 292 hall, never em- ploying more than one of them at a time. He paid them at the contract rate and made fringe benefit payments on their behalf to the Local 292 fund at least through 1980. Thereafter, Bakken hired directly without going through the Local 292 hall and did not make fringe benefit pay- ments for his employees. Bakken stopped paying dues for himself in July 1982 and did not consider Bakken Elec- tric to be a union shop after that. On 29 July 1983, Bakken Electric notified M-NECA and Local 292 that it did not consider itself to be bound by any agreements in effect after 30 March 1980 and that it retracted its authorization of NECA to bargain on its behalf. On 20 September 1983, union counsel indicated that, pending further investigation, it considered Bakken bound to the existing agreement and on 3 October 1983, the Union rejected Bakken's purported withdrawal. 7. Fowser Electric Co. Dan Fowser went into business as a sole proprietor in 1977. Previously he had contacted Local 292 Business Manager Thomas to ask what he had to do. He wanted to become a union contractor so that if he failed in busi- ness he could return to work as a union member. Thomas told him that he would have to sign a Letter of 581 Assent to get commercial jobs and that he might as well sign the Letter for the residential contracts as well in case he wanted to do residential work in the future. On 25 March 1977, he signed Letters of Assent, effec- tive that date, authorizing M-NECA to act as Fowser Electric's bargaining representative with Local 292 for both the commercial and residential contracts. He under- stood that he would pay dues to Local 292 and be a working member . He went into business about a month later. In 1980 Fowser hired a full -time employee who worked from April 1980 to December 1983 and he em- ployed one other employee temporarily from mid-April through mid-June 1980. Neither was hired through the referral system nor were they union members. On 29 July 1983, Fowser notified M-NECA and Local 292 that he considered himself to be bound to no agree- ments in effect after the expiration of the 1976-1978 agreement and that he retracted NECA's authority to bargain for him. Ensuing correspondence between the Union and Fowser was identical to that between the Union and Bakken as described above. Concluding Findings 1. Contentions There is no question that each of the Respondents ulti- mately took the position that they were no longer bound by the association agreements and atempted to repudiate them. The General Counsel contends that the Letters of Assent continued to bind Respondents to successive re- newals of the agreements in effect at the time the Letters were signed until such time as they gave timely notice of termination to the Associations and the Unions . With re- spect to Local 292, the General Counsel contends that the notices given by all Respondents were ineffective until 30 April 1984, the end of the M-NECA/292 agree- ment then in effect. With respect to Local 110 the Gen- eral Counsel contends that the notices were defective be- cause they were sent to M-NECA and not S-NECA. In addition, the General Counsel contends that North Town's notice was untimely with respect to the exten- sion of the 1982-1984 S-NECA/ 110 agreement. There- fore, the General Counsel contends that the untimely or unperfected repudiations of the agreements during their terms violated Section 8(a)(5) and ( 1) of the Act. Re- spondents contend that the letters did not authorize the Associations to represent them beyond the terms of the agreements in effect at the time they were signed, and that the attempts to withdraw were timely effective. In addition, they raise a number of affirmative defenses, in- cluding challenges to the Unions' majorities , the enforce- ability of the agreements as prehire agreements, alleged improper conduct by the Unions in obtaining Respond- ents' signatures on the Letters of Assent, alleged unfair representation of Respondents by the Associations, and alleged acquiescence by the Unions in Respondents' re- pudiation of the agreements. 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The effectiveness of the Letters of Assent as authorization to the Associations to enter into further contracts The Stacks, Joyces, Bakken, and Fowser all testified that they understood and intended that the Letters of Assent would bind them to only the collective-bargain- ing agreement in effect at the time they signed the let- ters. However, the reliability of this state-of-mind testi- mony is impunged by testimonial inconsistencies and by Respondents' actions.? Indeed, Respondents' actions show that they understood, as did the signers of similar letters with Locals 292 and 110, that the letters they signed invested the NECA Chapters with the Respond- ents' bargaining authorizations continuing into the future and were not conterminous with the collective-bargain- ing agreements then in effect. The letters state that they remain effective "until ter- minated by the . . . employer . . . at least one hundred fifty (150) days prior to the then current anniversary date of the . . . [current] approved labor agreement." The term "current anniversary date" is uniformly understood to mean the expiration date of the current contract. The phrase "then current anniversary date" indicates, through use of the modifier "then," that changing anni- versary dates were anticipated by those party to the Let- ters and contracts; changes in the anniversary dates, of course, can only come through renegotiated contracts. Moreover, the employer signing the letter authorizes the NECA Chapter "as its collective bargaining repre- sentative for all matters contained in or pertaining to the current approved . . . labor agreements." Both agree- ments here contain clauses by which the agreements are automatically renewed unless renegotiated or specifically terminated by the parties. Thus, renegotiation of the con- tract itself is "contained in" the current contract, and the subjects of renegotiation are also matters contained in or pertaining to the contract. The Board has previously considered the duration of virtually identical Letters of Assent and found that they extended representative authorization to an association beyond the expiration date of the contract in effect when they were signed. Nelson Electric, 241 NLRB 545 (1979), enfd. 638 F.2d 965 (6th Cir. 1981); Rayel Electric, 260 NLRB 1327 (1982). As noted in Nelson Electric, supra at 550, "it was the continuing authority to negotiate, which was granted to NECA and which has never been termi- r Fowser testified that he was told by Local 292 business manager that if he signed both the residential and commercial letters he would never have to come back again in the future . Bakken testified that he consid- ered himself a union contractor until he stopped paying dues in July 1982, well after expiration of the agreement in effect when he signed his second Letter of Assent. Bakken, North Town, and Stack Electric sub- mitted payroll reports and participated in benefit plans available only by contract after expiration of the contracts in force when their Letters of Assent were signed. The payroll reports showed that all three paid the wage rates established by the succeeding contracts. One of the payroll reports submitted by North Town was in response to a delinquency notice relating to a period after expiration of the initial contract term In addition, North Town and Bakken utilized union referral procedures after expiration of the initial contract term , and C. Stack notified Local 292 of the incorporation of Stack Electric to update its records a year after expi- ration of the contract in effect when its Letter of Assent was signed. nated, which is critical-not the adoption of the terms of a specific agreement." Thus, based on the actions of the parties, the plain lan- guage of the Letters of Assent, and prior constructions of identical letters, I conclude that the Letters of Assent authorized the Associations to negotiate and bind Re- spondents to agreements subsequently negotiated be- tween the Associations and the Unions until Respondents timely withdrew their bargaining authorizations. I reject Respondents' affirmative defense that the letters were ef- fective only for the terms of the contracts in effect at the time they were signed. 3. Respondents' repudiation of the M-NECA/292 agreement At the time Respondents repudiated the M-NECA/292 agreement (29 July for Bakken, Fowser, and Stack and 3 October for North Town) the current agreement still had a number of months to run until its 30 April 1984 expira- tion date. Although Respondents could prospectively withdraw M-NECA's authority to enter into any succes- sor agreement with Local 292 on their behalf,8 they could not in midterm repudiate the existing agreement for the remainder of its term without the approval of Local 292 and M-NECA, which was never given.9 Ac- cordingly, as I find below no merit to Respondents Bakken and North Town's affirmative defenses, I con- clude that their repudiation of the M-NECA/292 agree- ments violated Section 8(a)(5) and (1) of the Act. 4. Respondent North Town's repudiation of the S- NECA/110 agreement On 3 October 1983, North Town's counsel wrote Richard Parenti, secretary-manager of M-NECA, to notify him that North Town did not believe it was bound by the collective-bargaining agreements with Locals 110 and 292 and to request "that it receive no fur- ther correspondence from N.E.C.A. or from Local 110 or 292 on the subject of these agreements or their admin- istration." In that letter counsel also took the position that North Town had never executed "a delegation of collective bargaining rights in connection with the 1982- 1984 agreements between N.E.C.A. and Locals 110 and 292." In conclusion, the letter stated that North Town Electric "hereby gives notice of its withdrawal from membership in and retraction of any previous authoriza- tion of N.E.C.A. to act on its behalf as collective bar- gaining representative, pursuant to Boro Burglar Alarm Co., 234 NLRB 58" On 23 November 1983 counsel for North Town again wrote Parenti terminating its authorization of M-NECA to serve as North Town's collective-bargaining repre- sentative with respect to renegotiation of the current agreements between M-NECA and Locals 110 and 292. Counsel expressly disclaimed waiver of any position taken in the 3 October letter. Copies of both letters were sent to Locals 110 and 292 but not to S-NECA. 8 See Electrical Workers IBEW Local 952 (D d R Electric), 275 NLRB 319 (1985) 9 Nelson Electric, supra. STACK ELECTRIC Counsel for the General Counsel contends that neither letter was effective to terminate S-NECA's authority to represent North Town in bargaining with Local 110 be- cause neither was sent to S-NECA. Counsel for the Gen- eral Counsel also contends that the 3 October letter was ineffective because it did not comport with the specified method of terminating an assent letter's authority. Insofar as the record shows, the first time S-NECA became aware of the letters was during January 1984 when the assistant manager of S-NECA received copies from its attorney. On 24 January 1984, North Town's counsel sent copies of the 3 October and 23 November letters to S-NECA for the first time. Although counsel for the General Counsel appears to contend otherwise, the 3 October letter conveys un- equivocally North Town's intent to terminate S-NECA's authority to bargain for it. Not only may that intent be inferred from the statements of position with respect to the present agreement and the authority of NECA, but the letter specifically retracts any previous authority of NECA to act as its bargaining representative. There is no question that the attempt to withdraw bar- gaining authority from S-NECA was timely with respect to the 1982-1984 association agreement with Local 110. That agreement provided: Sec. 1.01 AGREEMENT DATES-This agree- ment shall take effect May 1, 1982, and shall remain in effect through April 27, 1984, unless otherwise specifically provided for herein. It shall continue in effect from year to year thereafter from May 1 through April 30 of each year, unless changed or terminated in the way later provided herein. The agreement provides further that either party desir- ing to terminate or modify the agreement must notify the other at least 90 days before the anniversary date and that the agreement shall be subject to change or supple- ment at any time by mutual consent of the parties. Before 1983, for the previous several contracts, negoti- ations for extensions or new agreements typically began in January or early February of the expiration year. However, in 1983 negotiations began in the spring when the Association on behalf of the contractors sought to defer a wage increase due under the 1982-1984 agree- ment. Those discussions were unsuccessful, but discus- sions started again in August which led to the extension agreement signed on 7 October and effective on that date. Agreement on terms was reached in late Septem- ber, subject to ratification. S-NECA mailed communications describing the nego- tiations and the agreement on terms in September, but it did not mail copies to all contractors who had signed Letters of Assent. Rather, it mailed them to all members of S-NECA and to those contractors who were current- ly employing individuals under the collective-bargaining agreement based on their submission of payroll reports to the fringe benefits funds. Insofar as it appears, North Town did not receive the communications from S- NECA. North Town was not a member of S-NECA, and it did not file payroll reports or use employees re- ferred by S-NECA after April 1983. 583 In Retail Associates, 120 NLRB 388, 395 (1958), the Board held:' We would . . . refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit , except upon ade- quate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargaining negotiations based on the existing multiemployer unit have begun , we would not permit, except on mutual consent, an abandon- ment of the unit upon which each sides has commit- ted itself . . . absent unusual circumstances. Here actual bargaining negotiations to extend the 1982-1984 contract had begun and there was no mutual consent after the notice was given. However, the ques- tion remains whether the notice should be considered timely because of the terms of the Letter of Assent or the fact that negotiations began much earlier than cus- tomary and much earlier than the 90-day period men- tioned in the contract. Acropolis Painting, 272 NLRB 150 (1984), offers guidance. There the Board found that an "unannounced premature commencement of actual nego- tiations could not foreclose the Respondents from with- drawing in accord with the agreed-upon procedure set forth in [the association agreement]." In that case the agreement between the multiemployer association and the union provided that during January of the expiration year of the agreement any signatory party could withdraw from the agreement effective with its 1 July expiration date by giving written notice and that "said notice of withdrawal eliminates said party from participation in any negotiations regarding this Agreement." The agreement provided for automatic re- newal in the absence of written notice of a desire to change or revise the agreement not less than 120 days before the termination date. The agreement in effect at the time the case arose ran from 1 July 1980 to 30 June 1983. Historically, the union and association had negoti- ated successor contracts in the spring of the year in which a contract was scheduled to terminate. In Novem- ber 1982, however, the association and union agreed to early contract negotiations to grant employees covered by the contract economic relief from a 1 January 1983 pay raise called for by the 1980- 1983 agreement, and in early December they reached agreement on a new con- tract to run from 1 January 1983 to 30 June 1987 which was ratified by the association membership on 14 De- cember 1982 and by the union on 28 December 1982. During the negotiations representatives of the associa- tion and the union were in disagreement over the rights of employer members to withdraw under the terms of the 1980- 1983 agreement. Association representatives took the position that they could still withdraw during January 1983 while union representatives took the posi- tion that they could no longer withdraw once agreement was reached. When the respondents in the case sought to withdraw during January, the union wrote them that their letters were untimely, that the letters did not serve to remove them from the negotiations that took place 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD before they tried to withdraw, and that they were bound by the terms of the 1983-1987 agreement. All four re- spondents had been members of the association and at least two were in good standing at the time they sought to withdraw. The facts in the instant case are substantially identical in most respects. Here, the Letter of Assent between North Town and Local 110 provided by its terms that the authorization of the S-NECA as collective-bargain- ing representative of North Town would remain in effect until terminated by written notice at least 150 days before the termination date of the current agreement. That agreement provided for automatic renewal in the absence of 90 days' notice of intent to terminate or modify. Historically, the parties had started to negotiate early in the year in which the contract was scheduled to terminate. In 1983 negotiations started almost 6 months earlier than normal , and the agreement entered into on 7 October 1983, more than 6 months before the termina- tion date of the 1982-1984 agreement, extended its term through 30 April 1986. The facts in this case differ with respect to the associa- tion membership of North Town, notice of the negotia- tions, and the positions taken by the Association and Union with respect to withdrawal. North Town was never a member of S-NECA. As it was not currently employing anyone on whom it was making reports to Local 110, it received no notices from S-NECA and in- sofar as the record shows had no notice of the negotia- tions which led to the extension of the 1982-1984 agree- ment.' ° There is no evidence that here the Association and Union discussed at all the impact of the extension of rights of employers to withdraw from multiemployer bargaining. I conclude that these factual differences do not war- rant a different result here from that reached in Acropolis Painting, supra. As a nonmember of S-NECA with no notice of any kind of the 1983 negotiations, North Town had if anything greater right to rely on the terms of the Letter of Assent it had signed than the respondents in Acropolis who were members of the association and at least some of whom had been sent notice of the exten- sion negotiations before the agreement was reached and ratified. Although the dispute between the association and the union in Acropolis over members' withdrawal rights may have led some members to rely on withdraw- al provision of the association agreement, the association and members had identical interests as parties to the con- tract. Certainly, absent agreement by the Association with the Union's position as to withdrawal, not present in either case, the contractual rights of a member vis-a- vis the Union could not be abrogated. Here, no less than in Acropolis, the terms of the Letter of Assent that was signed by North Town and Local 110 may be viewed as mutual consent to withdrawal from multiemployer bar- gaining regardless of whether bargaining for a new agreement has commenced. Inasmuch as there is no evi- dence that North Town knew of the negotiations or of the terms of the extension or withdrew because of dissat- 10 The testimony of Roger Joyce indicated awareness of negotiations for the 1982- 1984 agreement , not its later extension isfaction with its terms, there is no need to decide wheth- er failure to withdraw after receiving such notice might render withdrawal equivocal or otherwise warrant a dif- ferent result under Retail Associates. Thus, I conclude that the facts in this case are if anything stronger for giving effect to a withdrawal from multiemployer bar- gaining given timely with respect to the expiration date of the 1982- 1984 agreement. The question remains whether North Town gave timely notice in compliance with the Letter of Assent. The date 28 November 1983 was 150 days before 27 April 1984 and was thus the last date for timely notice during the 1982-1984 agreement . North Town gave notice to M-NECA and Local 110 on 3 October, clearly in advance of that date . But S-NECA did not receive a copy of the letter and had no other notice until January, well after the 1 December date. Under Retail Associates, supra, 120 NLRB at 393-394, although an untimely withdrawal requires consent of both the union and association, a timely withdrawal does not require mutual consent of the association and union but only that it be unequivocal , be made in good faith, and contemplate relatively permanent abandonment. Here, where it appears that Respondent's attorney mis- takenly assumed that the Minneapolis NECA office acted as a central office for the NECA Chapters in the area, the withdrawal letter is not deficient by any of the criteria prescribed by Retail Associates . The Union was timely notified of North Town's unequivocal "retraction of any previous authorization of N.E.C.A. to act on its behalf as collective bargaining representative." Even after receiving the copy of the 3 October letter, S- NECA made no response and apparently chose not to exercise its right-contained in the Letter of Assent-to timely notification. Moreover, North Town's failure to direct its notice properly to S-NECA had no impact on any policy served by the rules laid down in Retail Associ- ates. Because negotiations took place and were complet- ed by choice of the Association and Union before the time provided in the Letter of Assent for withdrawal and before the North Town letter was sent, North Town's letter could have no impact on the negotiations. Also, because North Town had communicated to Local 110 its determination to withdraw before it knew of the exten- sion agreement its decision could not have been influ- enced by the negotiations or their outcome and could have no more destabilized the multiemployer bargaining relationship than if S-NECA had been sent the 3 October letter on that date. Accordingly, I find that North Town's withdrawal notice of 3 October 1983 was effec- tively given and that North Town was released from the S-NECA/110 1982- 1984 contract on its original expira- tion date. However, as in the case of the M-NECA agreement discussed above, although North Town could withdraw prospectively S-NECA's authority to enter into any suc- cessor agreement with Local 110 on its behalf, it could not repudiate the existing agreement for the remainder of its original term . Accordingly, as I find below no merit to North Town's affirmative defenses, I conclude that its STACK ELECTRIC repudiation of the S-NECA/ 110 agreement before 27 April 1984 violated Section 8(a)(5) and (1) of the Act. 5. Respondents' defenses a. The Unions ' majority Respondents contend that the Letters of Assent and the agreements with Locals 110 and 292 are void and un- enforceable because they were prehire agreements which never matured into enforceable collective-bargaining agreements. Counsel for the General Counsel contends that the units defined in the agreements are association- wide units, that the employees of each Respondent do not constitute separate bargaining units, and that the de- sires of the employees of the individual employers are therefore irrelevant. In a single employer setting applicable case law with respect to prehire agreements is clear . A union and em- ployer in the building and construction industry may un- lawfully enter into a prehire agreement but it creates no presumption of majority status. A relationship thus estab- lished may be converted into a 9(a) relatioship on a showing that the union has obtained majority status in,a permanent and stable complement of employees, but in the absence of such a showing, the agreement remains voidable, NLRB v. Iron Workers Local 103 , 434 U.S. 335 (1978). In a multiemployer setting the status of contracts be- tween additional employers joining the multiemployer group and the union representing the multiemployer unit is less clear. The Board has certified multiemployer units without inquiring into the number of employees em- ployed by individual employer-members of the group. Central New Mexico Chapter, 152 NLRB 1604 (1965); Northern Nevada Chapter, 131 NLRB 550 (1961). But in those cases there was an established history of multiem- ployer bargaining, and the issue of the status of employ- ers joining the group by signing prehire Letters of Assent does not appear to have been raised." In C.I.M. Mechanical Co., 275 NLRB 685 (1985), con- curring Member Dennis squarely faced this issue, writ- ing: An employer cannot bind its employees to repre- sentation in a multiemployer unit without the em- ployees' express or implied consent . Mohawk Busi- ness Machines, 116 NLRB 248, 249 (1956). Typical- ly, a union gives such consent, but to do so, the Union must be the employees' statutory bargaining representative. Otherwise, employees could become part of .a preexisting multiemployer unit without in any way having expressed a desire to select the union as their collective-bargaining representative, and would be unable to challenge the union's status except in the multiemployer unit. If, however, a union attains majority status support among an em- ployer's own employees, it will have gained the au- I' See also Nelson Electric, supra. Although the issue was not raised, it appears from the facts that the union had acquired a majority in a perma- nent and stable work force before the respondent tried to repudiate the agreement. U& thority to give the employees' consent and to merge them into the multiemployer unit. In that case the majority did not reach the issue be- cause it found that the employer had not expressed a clear and unequivocal intent to engage in multiemployer bargaining. However, Member Dennis' analysis was also adopted in Baton Rouge Building Trades Council Y. E. C. Schafer Construction Co., 657 F.2d 806 (5th Cir. 1981). This analysis is consistent with longstanding authorities and principles, and I have found no authority to the con- trary. Accordingly, I conclude that the analysis set forth in Member Dennis' concurrence should be followed in this case. To determine whether the relationship between the Unions and Respondents in this case matured into 9(a) relationships, the facts as to each of the Respondents must be examined separately. At the time C. Stack signed the Letter of Assent with Local 292, the only employee of Stack Electric was Pat- rick Stack, who ran the business with his wife and became vice president when it was incorporated. As hus- band of the owner and as a managerial employee , Patrick Stack would be excluded from any collective-bargaining unit and was not an employee within the meaning of the Act.12 Thus, the Letter of Assent with Local 292 was signed and the collective-bargaining agreement entered into at a time when Stack Electric had no employees. As Stack Electric, like the other Respondents was an electri- cal contractor performing work in the building and con- struction industry the agreement between Stack and Local 292 was an 8(f) agreement at the time of its incep- tion. As set forth below, there is also no evidence that Local 110 represented any employees of Stack Electric when C. Stack signed the Letter of Assent with Local 110, so that the agreement between Stack Electric and Local 110 was also an 8(f) agreement. ' Since the latter part of 1981 , for substantial periods of time Stack employed four different persons, essentially one at a time, but there is no evidence that any of these employees were members of Local 110 or Local 292 or authorized either Union to represent them. There is no evidence that Stack obtained their services by referral from either Union, reported their earnings to either Union, or paid fringe benefits on their behalf. Thus, it has not been established that Local 110 or Local 292 ever attained majority status in a permanent and stable complement of employees. Therefore, both agreements remained subject to repudiation by Stack. Consequently, following the analysis set forth in Member Dennis' con- currence above, Stack Electric 's employees did not become a part of the multiemployer unit, and in the ab- sence of any evidence that Stack Electric's business oper- ations taken by themselves meet the Board's jurisdiction- al standards, I shall recommend that the Board not assert ' Although Stack and Local 292 may have considered Patrick Stack a full-time journeyman electrician and not a working employer for pur- poses of contract enforcement, their agreement is not determinative of his status as an employee within the meaning of the Act 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jurisdiction over Stack Electric and that the complaints against it be dismissed. North Town's predecessor, Helms Electric, had no employees when Margaret Joyce signed the Letter of Assent with Local 292. Like Patrick Stack, Roger Joyce was referred to North Town by Local 292, and he ran the business with his wife and later became its vice presi- dent when it was incorporated. Like Stack, he was not an employee within the meaning of the Act. Within a month or two after the Letter of Assent was signed, Helms hired Don Herlofsky who worked for Helms from January 1981 until July 1982. The record does not show whether Herlofsky was referred by Local 292, but it does show that Helms and later North Town made payroll reports and contributions to the Local 292 fringe benefit funds and remitted union dues on Her- lofsky's behalf. During the period of Herlofsky's employ- ment, Helms and then North Town employed no other employees. I find that Helms and North Town had a stable and permanent complement consisting of Her- lofsky, that Herlofsky had become a member of Local 292, and that Local 292 thus had a majority among Helms and North Town's employees. Thus, I conclude that the initial agreement between Helms and Local 292 became a 9(a) agreement and that the successor Letter of Assent executed after North Town was incorporated was likewise a 9(a) agreement. After North Town signed the Letter of Assent with Local 110, the month after Herlofsky left, North Town hire Warren Stimson, a member of Local 110 on referral from Local 110. Stimson worked until April 1983 as North Town's only employee. Thus, at least by the time Stimson was hired , Local 110 represented a majority of a permanent and stable complement of North Town's em- ployees. Accordingly, I find that under the principles set forth above, North Town's employees were merged into the multiemployer units under contract between the As- sociations and Locals 110 and 292 . These contracts were thus not subject to repudiation by North Town as 8(f) agreements, and having become merged into the existing multiemployer units the question of whether either Union continued to represent a majority of North Town's employees was no longer material. Bakken went into business in 1976. The Letter of Assent he signed at that time applied to the residential contract not at issue in this case. In 1979 Bakken signed the Letter of Assent applicable to the commercial agree- ment. Before signing the Letter of Assent, Bakken em- ployed one employee in addition to himself and he con- tinued to do so thereafter with some turnover of individ- uals. Bakken, as owner of his Company, is not an em- ployee within the meaning of the Act. Although it is un- clear when Bakken started to utilize the Local 292 hiring hall, he started to do so at some time after the first Letter of Assent was signed and continued to employ electricians referred by Local 292 through 1980. Thus, I find that at least after, if not before, the 1979 Letter of Assent was signed Respondent had a stable and perma- nent complement of employees that Local 292 represent- ed. Accordingly, I find that Bakken's employees were merged into M-NECA unit under the contract between M-NECA and Local 292 that was not subject to repudi- ation by Bakken as an 8(f) agreement. Thereafter, the question of Local 292's majority among Bakken's em- ployees was no longer material. Finally, turning to Fowser, the evidence shows that Fowser signed Letters of Assent in 1977 when he went into business as a sole proprietor. Apart from himself, Fowser employed no one until 1980 when he hired a full-time employee and a temporary employee . Neither was hired through the Local 292 referral system and nei- ther was a union member. Thus, there is no showing that Local 292 ever represented employees of Fowser. Ac- cordingly, as in the case of Stack Electric, Fowser's em- ployees did not become part of the multiemployer unit, and in the absence of any evidence the Fowser's business operations taken by themselves meet the Board 's jurisdic- tional standards, I shall recommend that the Board not assert jurisdiction over Fowser and the complaint against Fowser be dismissed. b. Alleged unfair labor practices, misrepresentation, fraud, coercion, and duress Respondents contend that the Letters of Assent are tainted by unfair labor practices and related misconduct of the Unions at the time the Letters of Assent were signed and continuing thereafter. More specifically, Re- spondents contend that they were required to join and pay exactions to the Unions , that the Unions interfered with Respondents' choice of bargaining representatives, and that the Unions refused to bargain over any alterna- tives to signing the Letters of Assent as a basis for agree- ment between Respondents and the Unions.'a At the outset of the hearing counsel for the General Counsel moved to strike the affirmative defense based on the Unions' alleged unfair labor practices because it was barred by Section 10(b) of the Act. The motion was granted to the extent that the allegations of union unfair labor practices Were based on conduct which occurred more than 6 months before the charges in this case were filed. Respondents' request that this ruling be reconsid- ered is denied. Barrington Plaza & Tragniew, 185 NLRB 962, 964 (1970). Although this ruling disposes of most of Respondents' contentions, they are in any event virtually without fac- tual foundation.' 4 Despite Respondents' claims that the Unions forced Respondents to sign Letters of Assent, insisted that they do so, and refused to consider other alternatives or to bargain individually with Respondents , the facts show an entirely different picture. Respondents went to the Unions, not vice versa. They asked the union business representatives what to do in order to become union contractors. When the business representatives told them "' Although these contentions were made collectively by all Respond ents, in view of the dismissal recommended above as to Stack and Fowser, the remaining contentions will be considered only insofar as they apply to North Town and Bakken If it were necessary to reach these issues in relation to Stack and Fowser, however, generally the same con- clusions would follow 14 Record citations in support of this contention and indeed throughout Respondents' brief are largely to unrelated evidence or evidence that re- quires highly subjective and colored interpertation to draw from it the assertions Respondents base on it STACK ELECTRIC to sign Letters of Assent, they did not ask if there were other alternatives nor did they ask to bargain separately. The business representatives did not demand any action or refuse any action . They answered the questions asked them by Joyce and Bakken, and Joyce and Bakken ac- cepted those answers. As the Unions represented no em- ployees of Joyce or Bakken at that time, they had no duty to bargain with Joyce or Bakken at all; bargaining between them was entirely consensual . The contention by Respondents that the Unions had special obligations to Joyce and Bakkens as union members to tell them of other alternatives is baseless. The Unions' duty to Joyce and Bakken was only to represent them fairly as employ- ees. Union membership conferred no obligation on the Unions when it dealt with them as prospective employ- ers.'15 When Joyce and Bakken approached the Unions ini- tially it was because they wanted something from the Unions. In Joyce's case he wanted to be a union contrac- tor, to work, and to receive fringe benefits . In Bakken's case, he wanted to freeze his retirement benefits and to obtain commercial referrals . Only later did each decide that he no longer wanted to be bound by the agreements he had made. Although Respondents contend that the Unions engaged in a continuing violation of Section 8(b)(3) of the Act by refusing to bargain individually with Respondents, the Unions' refusal to do so was hardly an unfair labor practice; rather it was a logical consequence of their position , supported by the com- plaint, that Respondents were bound by the existing asso- ciation contracts. Closely related are Respondents' contentions that the association agreements are void or unenforceable because of misrepresentation , fraud, duress, or coercion . They are rejected for the same reasons. Again most, if not all the allegations, if sustained , would constitute unfair labor practices that occurred more than 6 months before the charges in this case were filed. But more basic, the factu- al assertions are not supported by the evidence in the record. Respondents would have it that they were the objects of pressure from the Unions to sign the Letters and join the Unions "or else." They would have the Unions seen as aggressors who pressured Respondents, insisted that they sign the Letters and pay union dues, and deliberately concealed information from them. No fair reading of the record can lead to that conclusion. C. Alleged unfair representation by M-NECA and S- NECA Respondents contend that M-NECA and S-NECA un- fairly represented them in contract administration and negotiations with the Unions and that the unfair repre- sentation constituted unusual circumstances that justified Respondents' withdrawal from the multiemployer bar- gaining units. They contend that the consequences of the is There is some irony in the contentions that the Unions should have protected Respondents from doing what they wanted to do and that they unlawfully exacted dues from Respondents when it was Respondents who came to the Unions to ask what they could do to become union em- ployers while at the same time preserving for themselves the benefits of employees and, in Joyce's case, the right to be viewed as an employee. See Nelson Electric, supra, 241 NLRB 551 fn. 20 587 unfair representation resulted in dire economic circum- stances that also justified withdrawal from the multiem- ployer units . The gist of Respondents' contention is that the Associations favored large employers over small con- tractors by acquiescing in the Unions' insistence that each small employer be required to employ a full-time journeyman and pay full-time fringe benefits for him de- spite a past practice ignoring that requirement and by participating in the premature extension of the 1982-1984 S-NECA/110 agreement. The evidence fails to establish any factual basis for their contentions. The Local 292 contract contains a re- quirement for employment of a full-time journeyman in addition to a working employer . The Local 110 agree- ment limits the amount of work which may be per- formed by an owner and describes a 40-hour normal workweek for employees. Both agreements contain ex- ceptions in effect at all times material for periods of ex- cessive unemployment. Both Unions permit individuals to put ownership in the names of their spouses to avoid restrictions on work by employers. There is no evidence that North Town was required to employ a full-time journeyman in addition to Joyce or that Bakken was re- quired to employ a full-time electrician . The evidence as to grievances filed against them by the Unions show only that they protested the use of employees not hired through the union referral systems, not that they insisted on full-time employment for their employees. Moreover, the evidence shows that the small employers were repre- sented in the membership and boards of both Associa- tions, and there is no factual basis from which to con- clude that their interests were subordinated to those of larger employers. With respect to the extension of the S-NECA/110 agreement , Respondents assert that in reopening the 1982-1984 contract and reaching agreement to extend it for another 2 years fully 9 months before its expiration date and many months before the outset of renewal ne- gotiations in any previous contract year, S-NECA en- gaged in conspiratorial negotiations to extend premature- ly the 1982-1984 agreement , to prevent the defection of small employers, and to promote the interests of larger employers to the detriment of small employers like Re- spondents. This contention relates only to the complaint against North Town based on the Local 110 agreement. There is, however, no evidence that these negotiations were conducted in secret , conspiratorially, or with intent to promote the interests of large employers over those of small employers. S-NECA communicated with contrac- tors currently employing electricians under the Local 110 agreement during the course of the negotiations and reported to contractors the failure of an attempt earlier in the spring to negotiate agreement to adjust a wage in- crease due on I May 1983 to give relief to the contrac- tors. Whether North Town specifically was notified of or was aware of the negotiations, it is clear that the ne- gotiations were neither secret nor conspiratorial. The outcome of the negotiations was to provide a 10- cent hourly increase in the employers' contributions for medical benefits, a 2-year wage freeze, and a reduction in apprentice wages for the first 2 years of apprenticeship. 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent contends that the provisions favored larger shops because only they could utilize apprentices. How- ever, the ratios of apprentices to journeymen provided in the Local 110 agreement show no such favoritism. The evidence Respondent adduced to show dire eco- nomic consequences of the alleged misrepresentation by the Associations is unworthy of reliance . It is specula- tive, based on off-the-top-of-the-head recollections, esti- mates, and questionable assumptions by witnesses who seemingly testified on these matters on the spur of the moment . If such evidence is to have any weight , it must have a more solid foundation than that which underlay the testimony of economic consequences proffered in this case. Moreover, even accepting that evidence at face value, it showed at most impairment of profit, not the kind of losses which would make continued operation under the association agreements impossible . According- ly, I find no merit in this defense. d. The alleged acquiescence in Respondents' noncompliance with the agreements Respondents contend that these cases "cry out" for ap- plication of the doctrines of waiver, equitable estoppal, and related law because Respondents failed to observe various terms of the agreement with the acquiescence or agreement of the Unions and the Unions failed to take enforcement action. Once again the evidence fails to support Respondents' claims. With respect to Bakken , although Bakken paid no local dues after signing the initial Letter of Assent, made no fringe benefit contributions on nonunion employees, did not pay contract wage scales to nonunion employees, and did not utilize referrals from Local 292 after 1980, none of these facts show acquiescence in contract viola- tions by Local 292. At the time Bakken signed the first Letter of Assent he was a sole proprietor and, insofar as the record shows, he remained the owner after Bakken Electric incorporated. There is simply no showing that under the Local 292 contract Bakken was required to pay dues or make fringe benefit payments on his own behalf. As to remainder, there is no showing that Local 292 knew or should have known of Bakken 's violations before a grievance was filed against Bakken in early 1983. It is common in the industry for employers with Letters of Assent not to work within the Union's juris- diction for some period of time and to make no fringe benefit reports to the Union. The Union becomes aware of contract violations only if a business representative happens to visit a jobsite while the contractor is there.' 6 There is no showing that that happened before the griev- ance against Bakken was filed. North Town relies on the fact that its benefit coverage was terminated by Local 292 in December 1982, that North Town stopped fringe benefit contributions to Local 110 in April 1983, that Roger Joyce stopped dues payments to Local 292 in December 1982, that he never paid dues to Local 110, and that North Town did not pay union wage scales except to those employees who were referred by the Unions. With respect to Local 292, 16 A contention that Local 292 ignored a request for a referral by Bakken is wholly unsupported by the record. the evidence shows that Local 292 stopped accepting fringe benefit payments from Roger Joyce because North Town was then working as a St . Paul contractor . Joyce's own testimony supports that conclusion , at least in part. Although Joyce testified that he tried by telephone with- out success to talk to someone about the reason for ter- mination, he did not contest the termination in writing or inform the Union that it was in error as to the location of his work . Terminating Roger Joyce's fringe benefits because he was working within Local 110's jurisdiction did not carry with it acquiescence in North Town's vio- lation of the Local 292 agreement at times when North Town was working within its jurisdiction and, indeed, Local 292 filed a grievance only several months later when North Town was found working within its juris- diction . There is no evidence that Local 292 was or should have been aware of North Town's contract viola- tions before the grievance was filed. What has been said with respect to Local 292 is essentially applicable to North Town's relations with Local 110 as well. Insofar as Respondents' contentions are based on delay by the Unions and their counsel in responding to the at- tempts of Bakken and North Town by letter to repudiate the contracts on 29 July and 3 October 1983, respective- ly, in the light of the length and complexity of the con- tentions made by Respondents' counsel , there is no showing of delay in response that would imply acquies- cence by the Unions or of reliance on the delay by Re- spondents that would support their defense. Accordingly , I find that there is no merit in the affirm- ative defenses advanced by North Town and Bakken, that they violated Section 8(a)(5) and (1) of the Act by repudiating the M-NECA/292 agreement in midterm, and that North Town violated Section 8(a)(5) and (1) of the Act by repudiating the S-NECA/ 110 agreement before its 27 April 1984 expiration date. CONCLUSIONS OF LAW 1. North Town Electric, Inc. and Bakken Electric, Inc. are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Stack Electric, Inc. and Fowser Electric are not em- ployers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act over whom the Board would assert jurisdiction. 3. International Brotherhood of Electrical Workers, Locals 110 and 292, AFL-CIO are labor organizations within the meaning of the Act. 4. All employees employed by employers who have authorized the Minneapolis Chapter, National Electrical Contractors Association , to bargain for them, who per- form work as described in article III, section 3.12 of the Inside Construction and Maintenance Agreement, 1982- 1984, between Local 292 and the Minneapolis Chapter constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By repudiating the collective-bargaining agreement between Local 292 and the Minneapolis Chapter of the Association on 29 July 1983, before its expiration date, Respondents Bakken Electric, Inc. and North Town Electric, Inc. have engaged in unfair labor practices af- STACK ELECTRIC 589 fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 6. All employees employed by employers who have authorized the St. Paul Chapter, National Electrical Con- tractors Associations, to bargain for them, who perform work as described in article III, section 3, of the Con- struction and Maintenance Agreement, 1982-1984, be- tween Local 110 and the St. Paul Chapter constitute a unit appropriate for the prupose of collective bargaining within the meaning of Section 9(a) of the Act. 7. By repudiating the collective-bargaining agreement between Local 110 and the St . Paul Chapter of the Asso- ciation on 3 October 1983, before its 27 April 1984 expi- ration date, Respondent North Town Electric, Inc. has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that Respondents Bakken and North Town engaged in unfair labor practices , I shall recom- mend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Bakken and North Town unlaw- fully repudiated the 1982-1984 M-NECA/292 collective- bargaining agreement and that North Town unlawfully repudiated the 1982- 1984 S-NECA/110 collective-bar- gaining agreement, I shall recommend that they be or- dered (a) to give retroactive effect to the repudiated agreements, (b) to make their employees whole for any losses sustained by them by the failure to honor the terms and conditions of the repudiated agreements, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus interest, as computed in Florida Steel Corp., 231 NLRB 651 (1977), and (c) to make whole the vari- ous fringe benefit funds for any contributions required to be paid under the terms and provisions of the agree- ments, as prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979). [Recommended Order omitted from publication.]