Craft Electric Co.

1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Craft Electric Co and Local 136, International Brotherhood of Electrical Workers, AFL-CIO Case 10-CA-22811 May 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 22, 1988, Administrative Law Judge Philip P McLeod issued the attached decision The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief and limited exceptions 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' and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' We adopt in the absence of exceptions the judge s dismissal of the independent 8(a)(1) allegations The Respondent filed limited exceptions to the judge s failure to con sider its affirmative defense that it had no obligation to use the referral system because the Union operated it in a discriminatory manner We find it unnecessary to consider the meet or lack of merit of these excep tions as we are dismissing the complaint on other grounds J Howard Trimble Esq for the General Counsel C V Stelzenmuller Esq (Burr & Forman) of Birming ham Alabama, for the Respondent Robert H Stropp Jr Esq of Birmingham Alabama for the Charging Party DECISION STATEMENT OF THE CASE PHILIP P MCLEOD Administrative Law Judge I heard this case on 13 and 14 January 1988 in Birming ham, Alabama The charge which gave rise to the case was filed on 28 August and amended on 16 October 1987 A complaint and notice of hearing issued on 26 October 1987 which alleges, inter alia that Craft Electric Co (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by interrogating employees concerning their union activities threatening employees that it would not bargain with the Union if they chose it to represent them for purposes of collective bargaining, threatening employees with discharge if they joined or engaged in activities on behalf of the Union threatening employees that it would be futile for them to support the Union threatening employees to withhold benefits from them if they supported the Union and by unilaterally discontinuing use of the Union s referralhir ing hall procedure and subcontracting bargaining unit work In its answer to the complaint, Respondent admitted certain allegations including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of Local 136, International Brother hood of Electrical Workers, AFL-CIO as a labor organs zation within the meaning of the Act, and the status of certain individuals as supervisors and agents of Respond ent within the meaning of Section 2(11) of the Act Re spondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross exam me witnesses, and to introduce evidence Following the close of the trial, all parties filed timely briefs with me which have been duly considered i On the entire record in this case and from my observa tion of the witnesses, I make the following FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS I JURISDICTION Craft Electric Co is an Alabama corporation with an office and place of business in Birmingham, Alabama, where it is engaged in business as an electrical contrac tor In the course and conduct of its business operations Respondent annually purchases materials and supplies valued in excess of $50 000 from distributors in Alabama who, in turn purchase and receive materials and supplies directly from suppliers located outside the State of Ala bama Respondent is and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION Local 136 International Brotherhood of Electrical Workers AFL-CIO is and has been at all times materi al a labor organization within the meaning of Section 2(5) of the Act ' Prior to the trial the Charging Party served a subpoena on Respond ent seeking certain payroll information Respondent had that information available to it but did not have the information at the hearing primarily because of the volume of material subpoenaed Rather than delay the hearing I directed Respondent to supply the Charging Party with the material within a matter of days after the close of the hearing For reasons which are not altogether clear Respondent sent a copy of this material to me at the same time it supplied the material to the Charg ing Party The Charging Party now asks that the record be reopened to receive this material into the record I have considered the Charging Party s motion and after reviewing the material in camera I deny the Charging Party s motion to reopen the record simply to receive this material The material is contained in two boxes representing several hundred pages Without a witness to explain the material it adds little to this proceeding Further my review of this material indicates that it does not add any substantive evidence to the record which has already been produced by the parties It appears that the receipt of this voluminous evidence would only serve to burden the record Accordingly the Charging Party s motion is denied 293 NLRB No 133 CRAFT ELECTRIC CO 1075 III THE UNFAIR LABOR PRACTICES A Background Respondent began operations in 1981 In June of that year Respondent signed a letter of assent making the Birmingham chapter of the National Electrical Contrac tors Association (NECA) its bargaining agent and agree ing to be bound by the collective bargaining agreement in effect between the Union and NECA All parties ac knowledge that this was a prehire contract of the type permitted by Section 8(f) of the Act This agreement does not specifically describe the bargaining unit repre sented by the Union, but hourly wage rates are specified for apprentice wiremen journeymen wiremen, foremen area foremen , and general foremen The agreement was effective by its terms until 31 August 1983 In bargaining for a new contract, NECA and the Union were unable to reach agreement The collective bargaining agreement referred to above provided that its terms would remain in effect even though a 60 day notice of termination had been given until a final 10 day notice of termination was given by either party On 22 September 1983 representatives of NECA and the Union signed a Memorandum which defined a formula for es tablishing new wage rates for the various contractual job categories That Memorandum concluded by provid ing It is understood and agreed that all other issues in volving the 1983 negotiations remain unresolved and that no agreement will be signed until the par ties have mutually resolved all differences on all issues to these negotiations This wage formula con tamed in the present agreement provides for the manner and way of disposing of wages only with out strike On the failure of NECA and the Union to reach agree ment on the terms of a new contract NECA gave the Union the required 10 day notice to terminate the con tract by letter dated 23 November 1983 The collective bargaining agreement was therefore terminated effective on or about 3 December 1983 After the collective bar gaining agreement was terminated negotiations between NECA and the Union floundered All parties agree that on a date which is not specifically set forth in the record, the Birmingham chapter of NECA completely dissolved On 15 January 1985 Respondent and the Union indi vidually entered into a written Memorandum which provided in part On September 22, 1983, an agreement was reached concerning the wage package to be paid by employ ers of Local 136, IBEW This agreement is now amended in the following sections The Memorandum' then set forth an hourly wage rate of $1475 per hour to be paid journeymen wiremen, a formula for determining the rate to be paid apprentices and foremen , and various rates to be paid as fringe bene fits The Memorandum" does not specify a termination date Counsel for the General Counsel argues that in this individual Memorandum Respondent agreed to con tinue to be bound by the terms of the expired collective bargaining agreement but nowhere does this Memoran dum make such a provision Moreover I note that the Memorandum of 22 September incorporated by refer ence in the Memorandum' of 15 January specifically provided that all other issues remain unresolved Between January 1985 and February 1987, various in dividual contractors including Respondent continued to recognize the Union as the bargaining agent of at least certain employees, including journeymen wiremen and foremen Since the expiration of the NECA agreement, the Union and NECA members have been engaged in protracted litigation concerning the operation and admin istration of the apprenticeship program and on a date which is unspecified in the record, the parties ceased op eration of the apprenticeship program altogether There after, individual employers, with the consent of the Union, began to use helpers which have not been rep resented by the Union, are not furnished through the Union s hiring hall and work at wage rates set unilater ally by the employer Use of helpers is the real issue un derlying the alleged unilateral changes, and is discussed in detail below B Petition Election and Certification On 27 April 1987, the Union filed a petition for an election with the Board seeking to represen* Respond ent s employees in a bargaining unit including construe tion and maintenance employees and excluding, inter alia supervisors as defined in the Act Following an election held on 15 May 1987, the Union was certified as the exclusive bargaining representative of employees in this unit C The Alleged Violations of Section 8(a)(1) Kenneth J Adams worked for Respondent from De cember 1984 to June 1987 Adams testified that on Monday or Tuesday 11 or 12 May 1987 Respondent President Rusty Craft told him and employee Greg Marlin that if it went yes to stay union that he wouldn t have to negotiate with the hall, he could just sit across the table from them and just listen and not do anything about it Although he did not openly display hostility or bias against Respondent Adams did not im press me as an altogether disinterested witness Although Marlin was called as a witness by counsel for the Gener al Counsel he was not asked about this alleged conversa tion Adams own testimony makes it abundantly clear that at the time of the alleged conversation with Craft Adams was running i e , supervising Respondents job at the Substance Abuse Treatment Center, where the con versation is alleged to have taken place On this project, Adams assigned and directed the work of other employ ees using his own independent judgment I find that Adams was a supervisor within the meaning of the Act Because Marlin testified concerning several incidents and conversations but was conspicuously not asked about this conversation by counsel for the General Counsel, I have serious doubt whether Marlin was actually present during any such conversation, and I find that he was not I find that this conversation was solely between Craft 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Adams a statutory supervisor Accordingly even if Craft made the statement attributed to him by Adams it does not constitute a violation of Section 8(a)(1) of the Act Gary F Hadder worked for Respondent from Decem ber 1985 until he quit on 20 July 1987 Hadder testified that on the evening before the Board conducted election, he received a telephone call from Superintendent James McCutchen Hadder testified that McCutchen asked him how he was going to vote Hadder replied, You know how I in going to vote McCutchen then asked why he would do that Hadder replied that if he did not vote for the Union he could be brought before the Union and fined for working for a nonunion company McCutchen replied that such a fine would not mean anything be cause the International Union would reduce the fine Hadder replied that he did not want to pay a fine of any kind McCutchen then told Hadder that it really did not matter how the vote went that Craft would keep Hadder no matter how the vote went According to Hadder he and McCutchen talked for a long time but Hadder could not remember any other specific state ments made during this conversation McCutchen admitted having this conversation with Hadder McCutchen testified that at the time of the con versation, Hadder was both a union member and the union shop steward McCutchen denied asking 'Hadder how he was going to vote McCutchen testified that in stead, I told him how we wanted him to vote Ac cording to McCutchen I asked him as a favor to Rusty (Craft) to vote no, and that no matter how the vote went that he would have a job with us I find that even if McCutchen asked Hadder how he was going to vote the inquiry did not constitute unlawful interrogation which violates the Act McCutchen testified without contradiction that at the time of this conversation Hadder was not only a union member, but the union steward Hadder was therefore clearly a known union supporter Such questioning of a known union supporter is not considered a violation of Section 8(a)(1) of the Act Moreover it is clear in the circumstances of this conversation that McCutchen s question assuming it was asked, was not intended to intimidate and was not the type of question which likely would intimidate, Hadder Rather the question was simply a way for McCuthen to begin the conversation in which he wanted to ask and did ask, Hadder to vote against the Union Such a re quest not accompanied by other threats or promises of benefits, is in itself not unlawful Moreover the context of this entire conversation between Hadder and McCut chen shows that McCutchen s statements were neither intended nor received as intimidating or threatening Hadder testified that McCutchen stated that Respondent would continue to employ Hadder no matter which way the vote went For all these reasons, I find that McCut chen s conversation with Hadder, even assuming it took place as Hadder testified, did not violate Section 8(a)(1) of the Act Rossmore House 269 NLRB 1176 (1984), Dieckbrader Express 168 NLRB 867, 869 (1967) Jeffery M Garrett worked for Respondent as a jour neyman wireman from September 1986 until he was laid off on 19 June 1987 Garrett testified that within a week or two after the Board conducted election, he and Super intendent McCutchen had a conversation concerning the Union Garrett did not testify whether he or McCutchen initiated this conversation but according to Garrett McCutchen stated that if Respondent was his company He would not have fooled with this local [H]e wouldn t have nothing to do with the local Counsel for the General Counsel contends that be cause McCutchen was second in command at Respond ent, McCutchen s alleged statement to Garrett constitut ed an unlawful threat of futility to employees to be rep resented by the Union I find that this statement even if made does not rise to a violation of Section 8(a)(1) of the Act Clearly, Garrett knew that it was not McCut chen s company, and McCutchen s statement reflects this McCutchen did not make any unlawful threat that Respondent was not actually going to deal with the Union Moreover it must be remembered that for v„ars it had been an 8(f) relationship between Respondent and the Union At the time this statement was made, which was prior to the Board decision in John Deklewa & Sons, 282 NLRB 1375 (1987) Respondent would have been free to lawfully repudiate both the 8(f) relationship and any collective bargaining agreement that might have ex fisted between Respondent and the Union McCutchen s statement that he would not have fooled with this local is entirely lawful Even considered in the light most favorable to counsel for the General Counsel, McCutchen s alleged remark was simply a hypothetical opinion with no threat of reprisal, and I find that it did not in any way violate Section 8(a)(1) of the Act Ronald W Jones worked for Respondent as a journey man electrician and an estimator Although it is not clear how the practice began Jones testified that during the year preceding the election Respondent allowed Jones to use Respondent s name to obtain construction permits for work which Jones was actually doing on his own During evening hours and on weekends, Jones built swimming pools, work totally unrelated to Respondent s business Jones was not qualified to obtain such permits on his own and as a favor to Jones Respondent allowed Jones to use its name to obtain permits for such work Respondent also allowed Jones to charge materials and supplies needed to do this work, and then to pay Re spondent for these supplies when Respondent was billed Jones testified that on the Friday before the Board conducted election Craft asked Jones to vote no in the election On the Monday following the election Jones asked Craft if Jones could use Respondents name to obtain a construction permit for a particular pool which Jones wanted to build According to Jones, Craft asked Jones how he had voted in the election Jones ad mitted he had voted for the Union Jones testimony is somewhat inconsistent At one point Jones testified Craft stated it made Craft angry that he asked Jones to do something and Jones did not do it, but then Jones turned right around and asked Craft to do something for Jones At another point in his testimony Jones testified, And he didn t answer so I knew he must be upset Ac cording to that testimony Craft then simply said he would get Jones the permit Jones admits that Craft in CRAFT ELECTRIC CO fact proceeded to get the permit for Jones Jones testi feed, however, that approximately 2 weeks later when Jones was in Craft s office, Craft told him If you will don t ask me to get any more permits for you Jones testified Craft also told him not to buy any more material through Craft Electric Counsel for the General Counsel argues that this later conversation constituted an unlaw ful threat to withhold benefits from Jones because he voted in favor of the Union The record is clear that Respondent's practice of al lowing Jones to obtain swimming pool construction per mits and charge materials to Respondent was not related to the work which Jones performed for Respondent nor the business in which Respondent itself was engaged Neither did Respondent benefit in any way from this work which Jones did on his own time while not em ployed by Respondent Although I specifically requested counsel for the General Counsel to provide authority for his argument that Respondents practice of allowing Jones to permit such work and charge material to it was a working condition such that its threatened withdrawal might be unlawful counsel for the General Counsel of fered none I find Craft s directive to Jones that he stop permitting work through Respondent and stop charging materials to Respondents accounts not to be unlawful The circumstances under which Craft asked Jones not to permit any more work using Respondents name and not to charge materials to Respondents account are some what ambiguous and it is not altogether clear that Craft's request resulted from Jones union activity I note, for example, that immediately after the election Jones requested and was given permission to obtain a permit through Respondent although Jones told Craft he had voted for the Union Second I note that Jones use of Respondents name to obtain permits and charge mate rials in no way benefited Respondent either directly or indirectly Respondents practice was simply the exten sion of a personal favor which was in no way related to Jones wages, hours or working conditions Respond ent s practice in fact exposed it to liability for which it received no benefit, either direct or indirect Under these circumstances, I find that Respondents withdrawal of this favor even if it was precipitated by Jones union ac tivities not to be unlawful Shop Steward Gary Hadder testified that after the Board conducted election There were all kinds of rumors floating around Hadder testified that on one oc casion several weeks after the election, McCutchen ap proached him and asked Hadder if he had heard any rumors, stating he wanted to clear them up According to Hadder, he told McCutchen he had heard that every one who voted in favor of the Union would be gone in 6 weeks According to Hadder McCutchen responded, No, that s not correct Let s dust say, you know about 10 months According to Hadder, McCutchen stated that sooner or later Hadder was going to have to make a decision to either stay with Craft or keep on staying with the Union McCutchen denies making the statement as described by Haddet According to McCutchen, who I credit McCutchen simply told Hadder that he did not think the Union could last at the rate they were going Hadder s testimo 1077 ny suggests that McCutchen approached him specifically to dispel rumors which Hadder himself admits were rampant yet turned right around in the ensuing conver sation and exacerbated such rumors Hadder's testimony is incongruous and improbable Further McCutchen im pressed me as totally candid and straightforward McCutchen s version is particularly believable in the cir cumstances of the Union s relations with employers in the Birmingham area at this particular time The Union and NECA had failed to arrive at a new contract NECA had dissolved and the number of employers with whom the Union had collective bargaining agreements had therefore diminished significatly Based not only on inherent probabilities but also on my observation of the witnesses I credit McCutchen and find that he stated to Hadder on this occasion simply that he did not think the Union could last at the rate they were going McCut chen s statement is simply an expression of opinion which does not in any way carry a threat of discharge or other reprisal toward Respondents employees I find that McCutchen s statement did not violate Section 8(a)(1) of the Act Employee Gregory Marlin testified that on some occa sion between 15 July and 29 July, he had occasion to speak to McCutchen about the Union apprenticeship pro gram According to Marlin, McCutchen told me that I wouldn t ever be a union electrician, that he didn t think that Craft would be union anymore mainly be cause he didn t think the Union was going to be around much longer He said he didn t think it would survive much longer According to Marlin, McCutchen also told me there was a NECA school available that I could go to that they would send me to Counsel for the General Counsel and the charging party argue that McCutchen s statements constitute an unlawful threat of loss of benefit that Marlin would not become a journey man electrician and an unlawful threat of futility in being represented by the Union McCutchen s testimony is similar to Marlin s, but McCutchen sheds greater light on the context in which his statements were made and to the extent there is any difference between the testimony of Marlin and McCut chen, I credit McCutchen testified Marlin stated that he was thinking of quitting and going to work for another employer in order to get into a union apprenticeship pro gram As is discussed in greater detail below soon after NECA dissolved the union apprenticeship program dis solved as well, and for some time immediately prior to this conversation between McCutchen and Marlin, there had been no union apprenticeship program McCutchen testified that in order to dissuade Marlin from quitting McCutchen told Marlin that he did not think Marlin would ever have one again McCutchen does not deny telling Marlin that he would try to get Marlin into an ap prenticeship or training program available to Respondent elsewhere I find that McCutchen's statements do not constitute a threat of loss of benefits or a threat of futili ty in being represented by Respondent Although they are not alleged as such I also find that McCutchen s statements do not constitute an unlawful promise of ben efit Rather, McCutchen's statements clearly represented 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD simply his own personal opinion that the Union would never again resurrect its former apprenticeship program McCutchen s statements were made not to dissuade Marlin from being represented by the Union but rather to dissuade Marlin from quitting in order to go to work elsewhere I find that McCutchen s statements did not violate Section 8(a)(1) of the Act D The Alleged Unilateral Changes At the time of the Board conducted election on 15 May, Respondent was performing electrical work on a project known as the Shelby County Substance Abuse Treatment Center On 20 July 1987, Kenneth Adams, who was supervising the project, and Gary F Hadder, a journeymen electrician and union steward, quit On 22 July, journeyman Ronald Jones also quit Rather than calling the union hiring hall for replacements for these three, Respondent manned the job with employees of an other contractor, D & G Electrical Contractors The complaint alleges and counsel for the General Counsel contends that Respondent unilaterally subcontracted work to D & G and unilaterally discontinued using the hiring hall in violation of Section 8(a)(5) of the Act Respondents contract for electrical work at the Sub stance Abuse Treatment Center had a 150 day comple tion date, and work commenced 30 days late due to bad weather In July, the architect began to push for comple tion of the job, and Respondent took steps to assign em ployees overtime necessary to complete the job It was then that Adams, Hadder, and Jones quit Respondent argues counsel for the General Counsel does not deny, and the facts clearly establish that Adams Hadder, and Jones were all given immediate referrals by the Union to a job which paid at least $2 more per hour than they were making from Respondent Respondent acknowl edges that it did not seek referral of additional journey men from the Union Craft and McCutchen discussed whether they needed employees with journeymen skill level or whether they could do the job with lesser trained men I credit Craft and McCutchen that they dis cussed the situation and noted in particular that most of the difficult wiring had been done The remaining work was relatively simple, and involved the installation of light fixtures light switches, and plugs to wiring which had already been installed by journeymen Craft and McCutchen concluded that the remaining work could be done with less skilled and lower paid helpers rather than journeymen Craft and McCutchen also discussed the fact that Adams, Hadder, and Jones all received immedi ate referrals to higher paying jobs and concluded that they probably could not get any help from the union hall For all these reasons Respondent contacted the owner of D & G Electrical Contractors, a former member of NECA with whom Respondent maintained friendly relations and who Respondent knew to be seek ing work It is uncontroverted that Respondent had subcontract ed work on special occasions in the past and subcon tracting was permitted pursuant to the expired collective bargaining agreement between NECA and the Union provided it was to a person firm or corporation which recognizes the Union as the collective bargaining repre sentative of its employees 2 Respondent did not enter a formula subcontract with D & G D & G suggested sending needed employees to help Respondent who would remain on the payroll of D & G to simplify maintaining health insurance cover age D & G agreed to bill Respondent at the actual cost of wages, payroll taxes and insurance Pursuant to this arrangement, D & G sent Respondent three helpers These employees, however, worked under the direct supervision and control of McCutchen Re spondent kept their time, and paid D & G on purchase orders and invoices Thereafter, until the completion of the job, McCutchen was the only individual working as a journeyman full time Other journeymen employed by Respondent worked on the job but only occasionally Any work which was more complicated than installing fixtures switches, and plugs was performed by McCut chen, assisted as possible by helpers During the week ending 22 July 1987, D & G sup plied Respondent with three helpers During the weeks ending 29 July and 5 August, it supplied Respondent with five helpers During the week ending 12 August Respondent hired two of the five helpers which previ ously had been supplied by D & G, and it ceased using the other three Work was complete 3 weeks later during the week ending 9 September E Past Practice of Using Helpers As has been referred to above after the collective bar gaining agreement between NECA and the Union ex pired the parties were unable to reach agreement on the terms of a new contract Thereafter NECA dissolved The Union and individual NECA members became in volved in protracted litigation concerning the operation and administration of the apprenticeship program As a result the apprenticeship program ceased as well One of the main areas of concern to employer members of NECA even before the expiration of the collective bar gaining agreement, and continuing ever since has been the fact that the contractual wage rate was $14 76 per hour while nonunion employers in the Birmingham area pay their journeyman in the neighborhood of $8 to $10 per hour NECA employers therefore found it difficult to compete in bidding on jobs against nonunion employ ers In order to recapture the commencal market which had been largely lost to nonunion competition the Union began making informal, oral concessions to many em ployers Although the Union continued to get the $14 76 per hour contractual rate on captive jobs where the owner would not permit nonunion competition, all com petitive jobs were given the informal designation target jobs and concessions were given by the Union to reduce the journeyman rate, first to $12 17 per hour sometime in 1983 and then to $12 per hour in 1984 This 2 Prior to NECA dissolving D & G was a member of NECA After NECA dissolved the Union demanded recognition from D & G which responded by agreeing to sit down and pursue negotiations with the Union Following this response however the Union did not pursue ne gotiations with D & G and there was no collective bargaining agreement in effect between D & G and the Union in July 1987 CRAFT ELECTRIC CO wage reduction was never reduced to writing between the parties Rather, in the space provided for the rate of pay on referral slips from the union hiring hall, the Union simply entered the reduced wage rates It is quite clear from Union Business Manager Bill Roberson s own testimony that after he became assistant business agent in mid 1984, Roberson began to enter into so many infor trial verbal arrangements with employers that they became commonly known as Bill s Deals Roberson himself had no trouble recognizing the term when ques tioned about it on cross examination Of particular significance to this case are the informal arrangements which the Union made with NECA em ployers concerning the use of Helpers `Helpers is a classification which is not even mentioned in the most recent collective bargaining agreement between the Union and NECA Rather, that agreement provided for only two nonsupervisory job classifications, journeymen wiremen and apprentice wiremen Apprentice wiremen were paid a percentage of the journeymen rate ranging from 45 to 80 percent, depending on the individuals tenure The number of apprentices which an employer was permitted to hire depended on the number of jour neymen employed If the employer had one to three journeymen, he was permitted only one apprentice If the employer employed four to six journeymen, he was permitted two apprentices and so forth Union Business Manager Roberson testified that help ers were used in place of apprentices beginning sometime in 1985 when the apprenticeship program was no longer functioning Roberson also testified that informal ar rangements were made with employers concerning the use of helpers whereby the employer was first to seek an informal referral of helpers from the union hiring hall If none were available, the employer was then free to hire helpers off the street, but was still required to maintain the apprentice journeymen ratio I credit no part of this testimony by Roberson Respondents evidence is overwhelming and altogether credible that the use of helpers was agreed to and began as early as 1983 when Roberson himself was employed by Respondent in a supervisory position As has already been referred to above, helpers are nonunion employees whose wage rates are set by the employer and who do not receive contractual benefits The record is clear that the use of helpers began not only in part because of a shortage of apprentices but also and even primarily to allow NECA employers to reduce overall payroll ex penses and thereby be in a position to bid and compete against nonunion employers After Respondents practice of hiring nonunion helpers began in 1983 under Rober son s own supervision, Roberson even had cone union members volunteer' to work for Respondent without pay in order to allow Respondent to compete effectively in bidding again nonunion employers I credit Craft that there has never been any agreement on hiring helpers through the union hiring hall and that Respondent has never done so The record evidence is quite clear that Respondent has employed helpers and hired them directly without use of the union hiring hall ever since December 1983 It is also clear that Respond ent has employed these helpers without regard to the ap 1079 prentice journeymen ratio set forth in the expired collec tive bargaining agreement between the Union and NECA It is undisputed that Respondent has had about 100 jobs in the past 3 years All but one of these was a target job in which Respondent paid journeymen less than the contractual wage rate and freely used nonunion helpers who Respondent hired at its unilaterally estab lashed rate of pay Although the Union claimed there was some understanding that the helpers were to be paid between $4 and $5 an hour the Union was aware that Respondent gave helpers various raises and paid some of them more than $5 per hour Roberson admits in 1986 or earlier Further, Respondents records reflect that during 1984 through 1986 it was common for Re spondent to have twice and even three times as many helpers as journeymen These records reflect that Re spondent never maintained the ratio of helpers to jour neymen as was provided for apprentice to journeymen in the expired collective bargaining agreement The record is quite clear that the Union entered into similar arrangements with other employers Richard Reeve, owner of Reeve Electric, testified credibly that he was continuing to pay journeymen the wage rate pro vided for in the expired collective bargaining agreement long after it was common acknowledge that the Union was granting concessions on wages and the use of help ers to competitors Reeve testified credibly that James Mullinax then a union business agent, came to Reeve s shop in February 1985 and agreed to reduce the journey men wage rate to $12 per hour and to allow Reeve after exhausting available apprentices, to hire as many helpers off the street as Reeve pleased Thereafter Reeve fre quently hired nonunion helpers Reeve testified credibly that it was not uncommon to have more helpers than journeymen The record is equally clear that journeymen appren tice, and helpers frequently did the same type of work Respondent testified credibly and without contradiction that for years, helpers and journeymen have done the same tasks The expired collective bargaining agreement between the Union and NECA provided that all on site electrical work had to be done by journeymen and ap prentices The only limitation placed on apprentices was in terms of supervision rather than the type of work per formed When helpers began to be hired in 1983 they immediately began doing work which was within the range of journeymen work as defined by the collective bargaining agreement This is entirely consistent with the fact that part of the reason for hiring nonunion helpers in the first place was to reduce labor costs I credit Re spondent and find that although journeymen might need more supervision, the fact remains that journeymen ap prentices, and helpers commonly performed the same tasks F Analysis and Conclusions Regarding Alleged Unilateral Changes Until the Union filed its petition on 27 April 1987 for an election among Respondents employees the bargain ing relationship between the Union and Respondent was one founded solely on Section 8(f) of the Act Since the 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board Decision in John Deklewa & Sons supra it is clear that once the collective bargaining agreement between the Union and NECA expired Respondent was free to unilaterally abrogate or alter terms and conditions of em ployment which had been set by that agreement My reading of John Deklewa & Sons, therefore leads me to the conclusion that so long as the practice of hiring help ers was established either bilaterally during the term of the collective bargaining agreement between NECA and the Union or unilaterally after the agreement expired but prior to the Union filing its petition for an election on 27 April Respondent did not engage in an unfair labor practice by continuing that practice after the petition was filed The record establishes that the Union long ago aban doned any requirement in the expired collective bargain ing agreement with NECA concerning Respondent s need to use journeymen electricians to perform specific kinds of work Beginning in 1983, and continuing there after, the Union consented to, and perhaps even initiated, the hiring of nonunion lower paid helpers in order to reduce labor costs With the Union s consent, these non union helpers were hired by Respondent directly and without referral from the Union, at wage rates estab lashed unilaterally by Respondent Of particular significance to this case is the fact that ever since 1983, Respondent has employed such helpers without regard to the apprentice journeyman ratio set forth in the expired collective bargaining agreement be tween the Union and NECA Simply stated there is nothing that restricts the number of helpers which Re spondent is permitted to use The main point of counsel for the General Counsel s and Charging Party s argument is that prior to the week of 22 July 1987, Respondent had never hired so many helpers as it had on its payroll from the week of 22 July to the week ending 9 September However, because there is nothing which in any way restricts the number of helpers Respondent was and is permitted to use, it can hardly be said Respondent engaged in any unilateral change simply by hiring more helpers than it had hired before When three union journeymen electricians quit during the week of 22 July, Respondent considered whether it needed employees with journeyman skills or whether it could perform the remaining work with lesser trained men Respondent noted that the difficult wiring had already been done The remaining work was rela Lively simple Respondent concluded that the remaining work could be done with less skilled and lower paid helpers There is nothing in this case which suggests that Re spondent hired helpers in order to discriminate against union members Indeed the complaint does not allege an unlawful motive on Respondents part, or that Respond ent violated Section 8(a)(3) of the Act The complaint simply alleges an unlawful unilateral change on Respond ent s part by subcontracting work and by not hiring em ployees through the union hiring hall The evidence es tablishes that in fact Respondent did not subcontract work at all Although employees that were brought in to do the work technically remained on the payroll of D & G, they were in reality employees of Respondent working under Respondents direct supervision and con trol The focus of the General Counsels case must there fore be on the fact that Respondent hired helpers to re place the employees who quit rather than hire journey men electricians through the Union s hiring hall The evidence is clear, however, that ever since 1983 the Union has acquiesced in Respondent hiring nonunion helpers When three union journeymen electricians quit during the week of 22 July, Respondent considered its staffing needs, the skill level of needed employees and the likely availability of union journeymen and nonunion helpers In choosing to hire nonunion helpers Respondent acted in a reasonable business manner without any showing or claim by counsel for the General Counsel of an unlawful motive The evidence establishes Respondent reasonably concluded that nonunion helpers were capable of per forming the relatively simply work Respondent needed to have completed Because there is nothing that restricts the number of helpers Respondent was and is permitted to use, it can hardly be said that Respondent engaged in any unilateral change simply by hiring more helpers than it had hired before Accordingly I find that Respondent did not unilaterally subcontract bargaining unit work nor unilaterally discontinue utilization of the Union s referral hiring hall procedure as alleged in the complaint, and I shall dismiss those allegations in the complaint 3 CONCLUSIONS OF LAW 1 Respondent, Craft Electric Co, is an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 136, International Brotherhood of Electrical Workers, AFL-CIO is, and has been at all times maters al, a labor organization within the meaning of Section 2(5) of the Act 3 Respondent did not unlawfully interrogate employ ees concerning their union activities threaten employees that it would not bargain with the Union if they choose it to represent them for purposes of collective bargain ing threaten employees with discharge if they joined or engaged in activities on behalf of the Union, threaten employees that it would be futile for them to support the Union or threaten employees to withhold benefits from them if they supported the Union 4 Respondent did not unilaterally subcontract bargain ing unit work nor unilaterally discontinue use of the Union s referral hiring hall procedure in violation of Sec tion 8(a)(5) of the Act 5 Counsel for the General Counsel has failed to estab lish that Respondent engaged in any unfair labor practice in violation of Section 8(a)(1) or (5) of the Act as alleged in the complaint s Because I find that Respondent did not act unlawfully in hiring non union helpers rather than hiring journeymen electricians through the union hiring hall I also find that by McCutchen telling employee Marlin on or about 25 July that Respondent was not going to call the hall to hire journeymen Respondent did not violate Sec 8(a)(1) of the Act as alleged in the complaint CRAFT ELECTRIC CO 108 1 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed4 ORDER It is recommended that the complaint be dismissed in its entirety 4 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all put Order shall as provided in Sec 102 48 of the Rules be adopted by the poses