Convergence Communications, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2003

339 N.L.R.B. 408 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
Convergence Communications, Inc. and International
Brotherhood of Electrical Workers, Local 21,
AFL–CIO. Cases 13–CA–40308–1 and 13–CA–
40481–1
June 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 24, 2003, Administrative Law Judge Joseph
Gontram issued the attached decision. The General
Counsel filed limited exceptions.1
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The Respondent, Convergence Communications, Inc.,
Burr Ridge, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in
good faith, within the meaning of the Act, with the Inter-
national Brotherhood of Electrical Workers, Local 21,
AFL–CIO (the Union) as the exclusive bargaining repre-
sentative of employees in the following bargaining unit:

Telephone technicians who engage in low voltage con-
struction, installation, maintenance and removal of
telecommunication facilities (voice, sound, data and
video) including telephone and data inside wire, inter-
connect, terminal equipment, central offices, PBX, fi-
ber optic cable and equipment, microwaves, V-SAT,
bypass, CATV, WAN (wide area networks), LAN (lo-
cal area networks), and ISDN (integrated system digital
network).

(b) Failing to continue in effect all the terms and con-
ditions of employment provided by the collective-
bargaining agreement that had been effective until De-
cember 31, 2001, by unilaterally changing the work
hours, 401(k) plan payments, or working conditions of

1 Neither the Respondent nor the Charging Party has filed excep-
tions.
2 The General Counsel has excepted only to the judge’s failure to
provide the standard remedies for the violations he found. We find
merit in the General Counsel’s exceptions and shall modify the judge’s
recommended Order and notice accordingly.

bargaining unit employees without first notifying the
Union and affording it an opportunity to bargain about
the change.
(c) Constructively discharging employees because of
their union activity and support.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain collectively in
good faith with the Union, as the exclusive representative
of the employees in the bargaining unit, with regard to
rates of pay, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Restore and put into effect forthwith all terms and
conditions of employment provided by the collective-
bargaining agreement that had been effective until De-
cember 31, 2001, including those provisions unilaterally
changed by the Respondent, until the Respondent bar-
gains with the Union in good faith to an agreement or to
an impasse.
(c) Make all delinquent payments to the employees’
401(k) plan in the manner set forth in the remedy section
of the judge’s decision, continue such payments until the
Respondent bargains with the Union in good faith to an
agreement or to an impasse, and make whole the unit
employees for any loss of benefits or expenses resulting
from the failure to make such payments, with interest.
(d) Within 14 days from the date of this Order, offer
Greg Miller full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(e) Make Greg Miller whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the judge’s decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful constructive
discharge or resignation of Greg Miller, and within 3
days thereafter, notify him in writing that this has been
done and that the constructive discharge/resignation will
not be used against him in any way.
(g) Make the employees in the appropriate bargaining
unit whole by paying to them sums representing the dif-
ference between what they were paid for 32 hours’ work
per week and what they would have been paid for 40
hours work per week, since February 13, 2002, with in-
terest.
339 NLRB No. 56
CONVERGENCE COMMUNICATIONS, INC. 409
(h) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Burr Ridge, Illinois, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 1,
2002.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to recognize and bargain in good
faith with the International Brotherhood of Electrical
Workers, Local 21, AFL–CIO (Union) as the exclusive
bargaining representative of employees in the following
bargaining unit:

Telephone technicians who engage in low voltage con-
struction, installation, maintenance and removal of
telecommunication facilities (voice, sound, data and
video) including telephone and data inside wire, inter-
connect, terminal equipment, central offices, PBX, fi-
ber optic cable and equipment, microwaves, V-SAT,
bypass, CATV, WAN (wide area networks), LAN (lo-
cal area networks), and ISDN (integrated system digital
network).

WE WILL NOT fail to continue in effect all the terms and
conditions of employment provided by the collective-
bargaining agreement that had been effective until De-
cember 31, 2001, by unilaterally changing the work
hours, 401(k) plan payments, or any term or condition of
employment for bargaining unit employees without first
giving notice to the Union and affording it an opportu-
nity to bargain about that change.
WE WILL NOT constructively discharge or otherwise
discriminate against any of you for supporting the Union
or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request, recognize and bargain collec-
tively in good faith with the Union as the exclusive rep-
resentative of the employees in the bargaining unit with
regard to rates of pay, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
WE WILL restore and put into effect forthwith all terms
and conditions of employment provided by the collec-
tive-bargaining agreement that had been effective until
December 31, 2001, including those provisions unilater-
ally changed by us, until we have bargained with the
Union in good faith to an agreement or to an impasse.
WE WILL make all payments to the employees’ 401(k)
plan provided in the most recent collective-bargaining
agreement with the Union from the date we stopped
making those payments until we have bargained with the
Union in good faith to an agreement or to an impasse,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
and WE WILL make the bargaining unit employees whole
for any loss of benefits or expenses resulting from our
failure to make such payments, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer Greg Miller full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed.
WE WILL make Greg Miller whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful constructive discharge or resignation of Greg Miller,
and WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that the constructive dis-
charge/resignation will not be used against him in any
way.
WE WILL make the bargaining unit employees whole
by paying to them the difference between what they were
paid for 32 hours’ work per week and what they would
have been paid for 40 hours work per week, since Febru-
ary 13, 2002, with interest.

CONVERGENCE COMMUNICATIONS, INC.

Jeanette Schrand, Esq., for the General Counsel.
Thomas Purpura, pro se, and Michael E. Avakian, Esq., for the
Respondent.
Michael Sacco, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case was
heard in Chicago, Illinois, on February 6, 2003. The charges in
Cases 13–CA–40308–1 and 13–CA–40481–1 were filed by the
International Brotherhood of Electrical Workers, Local 21,
AFL–CIO (the Union) on July 2, 2002 (together with a first
amended charge filed on October 8, 2002), and September 9,
2002, respectively. The complaint was issued by the Regional
Director for Region 13 on October 31, 2002, and was amended
on November 20, 2002, and at the hearing on February 6, 2002.
The complaint alleges that Convergence Communications, Inc.
(the Company or the Respondent) violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).
The principal issues are (1) whether the Respondent has re-
fused to bargain collectively with the representatives of its em-
ployees in violation of Section 8(a)(5) of the Act and (2)
whether the Respondent discriminated against its employee,
Greg Miller, on the basis of his membership in or support for
the Union, in violation of Section 8(a)(3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Convergence Communications, Inc. provides telephone
sales, services, and equipment from its facility in Burr Ridge,
Illinois. During the past calendar year, the Company had gross
revenue in excess of $500,000, and it purchased and received at
its Burr Ridge facility goods and materials in excess of
$50,000, which came directly from points located outside the
State of Illinois. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Respondent also admits and I
find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to Bargain Collectively with the Union
Respondent does not dispute the facts of this case, so much
as it disputes how these facts are characterized. Since at least
1998, Respondent has recognized the Union as the exclusive
collective-bargaining representative of the following employees
of Respondent pursuant to Section 9(a) of the Act:

Telephone technicians who engage in low voltage construc-
tion, installation, maintenance and removal of telecom-
munication facilities (voice, sound, data and video) including
telephone and data inside wire, interconnect, terminal equip-
ment, central offices, PBX, fiber optic cable and equipment,
microwaves, V-SAT, bypass, CATV, WAN (wide area net-
works), LAN (local area networks), and ISDN (integrated
system digital network).

The Company’s recognition of the Union’s representative status
is embodied in successive collective-bargaining agreements, the
most recent of which was due to expire on December 3, 2000.
However, the parties extended that agreement to December 31,
2001. Article 1 of section 1.02(a) and (c) of the extended
agreement states that a party wishing to change or terminate the
agreement must notify the other party, in writing, at least 60
days prior to the expiration date, and that “[t]he existing provi-
sions of the Agreement shall remain in full force and effect
until a conclusion is reached in the matter of proposed
changes.”1
The parties’ collective-bargaining agreement provides that a
workweek shall constitute 40 hours, and requires the Respon-
dent to make certain payments to a savings and security plan,
commonly referred to as “401(k)” benefits.
As the most recent collective-bargaining agreement with the
Union was approaching its termination, the Union made two
written attempts to bargain. On October 30, 2001, and January
2, 2002, the Union sent letters to the Respondent seeking bar-
gaining for a successor collective–bargaining agreement. The
Respondent’s president, Thomas Purpura, signed for the re-
ceipts of these letters and admits receiving them. In the letter

1 GC Exh. 4, p. 3, § 1.02(c).
CONVERGENCE COMMUNICATIONS, INC. 411
dated October 30, 2001, the Union proposed to amend the ex-
isting collective-bargaining agreement and enclosed a proposed
3-year agreement. In the letter dated January 2, 2002, the Union
submitted a different proposal and enclosed a proposed 2-year
agreement. In addition, the Union’s business agent and negotia-
tor, Michael Sacco, telephoned Purpura in January 2002, and
left a message on Purpura’s voice mail, including a request that
Purpura telephone Sacco in order to arrange a meeting to dis-
cuss the contract.
The Respondent refused these requests to bargain and later
confirmed this refusal in a letter dated February 1, 2002. In this
letter, the Respondent stated that it had decided not to renew
the collective-bargaining agreement. The Respondent admits
taking this action as part of its decision to withdraw recognition
of the Union as the exclusive bargaining agent of its unit em-
ployees. The Respondent does not claim nor is there any evi-
dence that it had any reason to believe its employees no longer
wished to be represented by the Union. After receiving the
Respondent’s February 1 letter, the Union, through Michael
Sacco, called Thomas Purpura two more times, once in early
February 2002 and again in March 2002. On both occasions,
Sacco was told that Purpura was not available, and on both
occasions he left a voice-mail message for Purpura. Purpura
never returned either of these telephone calls.
On February 13, 2002, the Respondent changed the working
conditions of its employees by (1) reducing the workweek of its
employees from 40 to 32 hours per week, and (2) stopping
Respondent’s contributions to the employees’ 401(k) plan.
Greg Miller, a telephone technician and a member of the
bargaining unit, learned of these changes in the February 13
letter from Respondent. Respondent took this action without
prior notice to the Union and without affording the Union an
opportunity to bargain with respect to any aspect of the charges.
In the February 13 letter, the Respondent reaffirmed that it had
“decided not to renew the Union contract.” The Respondent did
not give any advance notification to the Union of these
changes. After these changes were implemented, Greg Miller
resigned from the Company on March 18, 2002.2
The Respondent claims in the present proceeding that the
Union did not attempt to negotiate a new collective-bargaining
agreement. This claim has no merit and is belied by the facts
admitted by the parties. The Respondent does not deny that the
Union did send it two proposed contracts for discussion or sig-
nature, and that the Union’s business agent telephoned Thomas
Purpura several times in an effort to negotiate a contract. Nor
does the Respondent deny that it failed to reply to any of these
attempts to bargain or to negotiate a contract.
B. Discrimination in the Constructive Discharge
of Greg Miller
After the foregoing changes in the working conditions of the
Respondent’s employees were implemented, and as a direct
result of the changes, Greg Miller, a telephone technician and a
member of the bargaining unit, resigned from the Company on

2 In a letter dated March 18, 2001, Miller advised the Company of
his intent to resign in 2 weeks. (GC Exh. 9.) The Company informed
Miller at the end of his workday on March 18 that his resignation
would be effective immediately.
March 19, 2002. Although the Respondent disputes that its
unilateral actions in changing the terms and conditions of
Miller’s employment caused him to resign, it offered no evi-
dence or argument pointing to any other cause for his resigna-
tion. Miller testified that the benefits provided to him as a un-
ion member, including the 401(k) benefits and full-time, 40-
hours per week employment, were so important to him and his
family that he could not work under the conditions imposed by
the Respondent on February 13. Accordingly, he was forced to
resign and to seek employment in a union position with another
employer. I accept this credible, unimpeached and uncontra-
dicted testimony.
C. The Company’s Defense
The defense offered by the Respondent, through Thomas
Purpura, is that he is not antiunion, that he was formerly a
member of the Union, and that the reason he refused to negoti-
ate with the Union and imposed the unilateral changes noted
above was because of the lack of earnings by his Company.
For example, the Respondent’s income statement for the period
January through June 2001 shows net ordinary income of only
$12,523.25. The Respondent’s financial statements also show
that during the period 2000 and 2001, Thomas Purpura was
paid less in wages than some employees, including union
members.
D. Analysis
1. Section 8(a)(1) and (5)
(a) Section 8(a)(5) of the Act provides that it shall be an un-
fair labor practice for an employer “to refuse to bargain collec-
tively with the representatives of his employees,” subject to
other provisions not applicable herein. Section 8(d) of the Act
defines “bargain collectively” as the mutual obligation of the
employer and the representative to “meet” at reasonable times
and to “confer” in good faith concerning the terms and condi-
tions of employment.
In the present case, the Respondent refused to meet or confer
with the representative of its employees concerning the terms
and conditions of employment. On four separate occasions
during the 2 months prior to or immediately after the termina-
tion of the existing collective-bargaining agreement, union
representatives contacted the Respondent in an effort to negoti-
ate a new contract. The Respondent failed to respond to the
written requests and failed to even take the telephone calls,
much less return the telephone calls, from the union representa-
tive. The Respondent subsequently made clear why it was
refusing to bargain when it informed the Union, as well as its
employee, Greg Miller, that it had unilaterally decided “not to
renew the Union contract.”
When an employer and a union have established a 9(a) rela-
tionship, such as the relationship between the parties in this
proceeding, the union enjoys a presumption of continuing ma-
jority support after the expiration of the contract. Fleming In-
dustries, 282 NLRB 1030 (1987). Accordingly, the Respon-
dent’s unilateral refusal to recognize and bargain with the Un-
ion violated the Act.
The Respondent claims that it refused to bargain with the
Union because it was experiencing declining collections and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
revenues. Nevertheless, the reason or reasons why the Respon-
dent refused to bargain are not relevant to a violation of Section
8(a)(5). NLRB v. Katz, 369 U.S. 736, 745 (1962) (“there is no
occasion to consider the issue of good faith if a party has re-
fused even to negotiate in fact—‘to meet and confer’—about
any of the mandatory subjects”); J & C Towing Co., 307 NLRB
198 (1992) (where the Board held that the employer violated
Sec. 8(a)(5) by refusing to meet with the union and by refusing
to return the union negotiator’s telephone calls). Indeed, as-
suming the reliability of the Respondent’s records, the financial
difficulty it might have had in paying the wages proposed in the
collective-bargaining agreement, as well as its ability to con-
tinue making payments to its employees’ 401(k) plans as it had
in the past, are matters that it could have, in the first instance,
negotiated with the Union. The Respondent’s lack of earnings
might explain or even justify a position it might take at the
bargaining table, but it does not explain or excuse the Respon-
dent’s failure to bargain. By refusing to even confer or meet
with the Union, the Respondent deprived the Union and itself
of the opportunity to discuss and attempt to accommodate these
financial issues. The Respondent’s refusal to meet and confer
with the Union under the facts of this case, and without regard
to the reason why it so refused, constitutes a violation of Sec-
tion 8(a)(5) and (1) of the Act
(b) After the Respondent refused to meet and confer with
the Union, it unilaterally changed the working conditions of its
employees. These changes involved, inter alia, the employees’
working hours and the employer’s payments to the employees’
401(k) plan. The Respondent did not notify the Union of its
intent to change these working conditions of its employees,
much less give the Union an opportunity to bargain concerning
such changes.
Generally, the terms of a collective-bargaining agreement
remain in force until a new agreement has been reached or im-
passe occurs. E.g., W. A. Krueger Co., 299 NLRB 914, 915
(1990). Moreover, the collective-bargaining agreement in the
present case specifically provided for the continuation of its
provisions in the absence of timely notice, which was not pro-
vided by the Respondent. Unilateral changes in hours and other
terms and conditions of employment, even when made after the
collective-bargaining agreement has expired, violate the em-
ployer’s obligation to bargain collectively as mandated in Sec-
tion 8(a)(5) of the Act. NLRB v. Katz, supra. The statute ex-
pressly covers work hours, while 401(k) plan contributions are
matters within the meaning of “terms and conditions of em-
ployment.” 29 U.S.C. § 158(d); Trojan Yacht, 319 NLRB 741
(1995); see Superior Sprinkler, Inc., 227 NLRB 204 (1976).
Accordingly, the obligation to bargain concerning such matters
as 40l(k) plan payments and hours of work continues after expi-
ration of the existing collective-bargaining agreement. Frank-
line, Inc., 287 NLRB 263 (1987). This is especially so when the
expiration of the collective-bargaining agreement is due, at
least in part, to the unfair labor practices of the Respondent.
The Respondent may not profit from its own unfair labor prac-
tices. Hen House Market No. 3, 175 NLRB 596 (1969), enfd.
428 F.2d 133 (8th Cir. 1969).
As noted above, the only defense offered by the Respondent
is that it withdrew recognition of the Union, refused to bargain,
and imposed the unilateral changes in order to save money,
which was necessitated by declining collections and revenues.3
However, it is well established that financial inability to pay is
not a defense to a charge that the employer violated Section
8(a)(5) and (d) of the Act. Navigator Communications Systems,
LLC, 331 NLRB 1056 (2000); Trojan Mining Processing, 309
NLRB 770 (1992); see NLRB v. Katz, supra. Accordingly, I
conclude that the unilateral actions of the Respondent in elimi-
nating payments to its employees’ 401(k) plan and in reducing
the hours of its employees to a 32-hour workweek were done in
violation of Section 8(a)(1) and (5) of the Act.
2. Section 8(a)(1) and (3)
After the Respondent changed the working conditions of its
employees, including the suspension of 401(k) payments and
the reduction of working hours from 40 hours to 32 hours per
week, Greg Miller, a member of the Union, tendered his resig-
nation. Miller testified that he was forced to quit because he
needed the 401(k) plan and a full 40-hour workweek for him
and his family’s welfare. The General Counsel asserts that he
was constructively discharged in violation of Section 8(a)(3).
In Crystal Princeton Refining Co., 222 NLRB 1068, 1069
(1976), the Board set forth the elements for establishing a con-
structive discharge as follows:

There are two elements which must be proven to establish a
“constructivedischarge.” First, the burdens imposed upon the
employee must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force
him to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activities.

The first criterion is satisfied by the Respondent’s unilateral
change regarding contributions to its employees’ 401(k) plan.
See M.P.C. Plating, Inc. v. NLRB, 912 F.2d 883 (6th Cir. 1990)
(cut in benefits); Borden, Inc., 308 NLRB 113 (1992), enfd. 19
F.3d 502 (10th Cir. 1994) (cut in pay and benefits). Also, the
Board has held that employees who quit as a result of a reduc-
tion in work hours have been constructively discharged. Sulli-
van Transfer Co., 247 NLRB 772 (1980). The second criterion
is satisfied by the Respondent’s admitted motive in committing
the above-described 8(a)(5) unfair labor practices, viz, its uni-
lateral and preemptive decision to stop dealing with or recog-
nizing the Union as the representative of its telephone techni-
cian employees. Moreover, the Board has found that employers
constructively discharge employees by unilaterally changing
working conditions. Auto Fast Freight, 272 NLRB 561 (1984),
enfd. 793 F.2d 1126 (9th Cir. 1986). Like the employees in
Auto Fast Freight, the union employees of the Respondent,
such as Greg Miller, were given the choice to “accept changed
working conditions, including deceased [benefits and hours],

3 It is not at all clear that the Respondent was financially unable to
make the 401(k) contributions as it had done in the past. Nevertheless,
for purposes of this Decision, and because such difficulty would not
affect the result in this case, it is assumed that the Respondent would
have had much difficulty in continuing to make the 401(k) payments
after the termination of the most recent collective-bargaining agree-
ment.
CONVERGENCE COMMUNICATIONS, INC. 413
and give up union membership, or quit their jobs. Such an
option is unlawful.” 272 NLRB at 563.
This unlawful option, also known as a “Hobson’s Choice”
constructive discharge, is an independent reason supporting the
determination that Greg Miller was constructively discharged
from the Respondent. The unlawfulness of such a choice is
heightened when the employer improperly withdraws recogni-
tion of the union. Goodless Electric Co., 321 NLRB 64 (1996).
An employee, such as Greg Miller, who is forced to choose
between losing his job and giving up statutory rights, is con-
structively discharged when he chooses the former. Superior
Sprinkler, Inc., supra. In these circumstances, the employer’s
conduct is inherently destructive of important employee rights,
so that independent proof of antiunion motivation is not re-
quired. Electric Machinery Co. v. NLRB, 653 F.2d 958, 965
(5th Cir. 1981) (citing NLRB v. Great Dane Trailers, 388 U.S.
26, 34 (1967).
Accordingly, I conclude that the Respondent constructively
discharged Greg Miller, a member of the bargaining unit, in
violation of Section 8(a)(1) and (3).
3. Posthearing issues
Although the Respondent was represented by its president
and owner, Thomas Purpura, throughout the hearing process, it
elected to obtain legal counsel after the hearing. Despite clear
directions and warnings given to Purpura at and prior to the
hearing, he did not obtain legal counsel until February 26,
2003, the date that posthearing briefs were due. The Respon-
dent’s counsel did file a brief on February 27, 2003, 1 day after
it was due, a Herculean effort in light of the fact that the
“Brief” was 39 pages in length. The General Counsel and the
Union have filed objections to the brief, and request that the
untimely brief be stricken. Although I find their objections to
be well taken, particularly in light of the Respondent’s late
attempt to obtain counsel on the very date that briefs were due,
I have considered Respondent’s brief, especially in light of the
Respondent’s pro se status throughout the hearing.
Nevertheless, and in spite of my consideration of the matters
contained in the Respondent’s brief, I have determined that my
reasons and conclusions as previously set forth herein remain
unchanged.
The Respondent maintains that the Union does not represent
a majority of the bargaining unit members. However, for the
reasons set forth above, this contention must be rejected. See,
for example, Fleming Industries, supra. In this regard, I also
note that the Respondent made no attempt throughout the hear-
ing to attempt to establish or disprove the majority status of the
Union.
The Respondent alleges in its brief, without citation to au-
thority or to any particular facts in the present case upon which
it relies, that the dispute in this case should have been submit-
ted for resolution to the arbitration/grievance process set forth
in the collective-bargaining agreement. However, this claim
ignores the Respondent’s actions in the case and its position
throughout the hearing process—that it had repudiated the col-
lective-bargaining agreement and was no longer bound by its
terms. In circumstances such as these, the Board has held that
deferral to the parties’ agreed resolution procedure is not ap-
propriate. Avery Dennison, 330 NLRB 389 (1999). In Avery
Dennison, the Board stated:

The statutory issues in this case, including the lawfulness of
the Respondent’s withdrawal of recognition and subsequent
changes in working conditions, are particularly poor subjects
for deferral because they involve the very existence of a col-
lective-bargaining relationship between the parties, a matter
within the exclusive jurisdiction of the Board.

330 NLRB at 391. The Board also noted that the rationale for
deferral loses its force when the respondent has sought to ter-
minate its relationship with the Union, as the Respondent has
done in the present case. Id. Accordingly, the Respondent’s
assertion that the issues in this case should be resolved through
the arbitration process and that the Board should defer to such
process is rejected.
The Respondent also alleges that Section 10(b) of the Act,
which imposes a 6-month limitation period on charges alleging
unfair labor practices, bars the present proceeding. The charge
in the present case was filed on July 2, 2002, and the Respon-
dent alleges that the Union had notice of the Respondent’s re-
pudiation of the collective-bargaining agreement on January 1,
2002.
Section 10(b) is a statute of limitation and is not jurisdic-
tional in nature. Accordingly, it is an affirmative defense which
must be pleaded, and if not timely raised, is waived. R. G.
Burns Electric, 326 NLRB 440 (1998). The burden of proving
such an affirmative defense is on the party asserting it. Chinese
American Planning Council, 307 NLRB 410 (1992). Moreover,
the 10(b) period commences when a party has clear and un-
equivocal notice of the violation of the Act. Mine Workers Lo-
cal 17, 315 NLRB 1052 (1994), or where a party in the exercise
of reasonable diligence should have become aware that the Act
has been violated. Bryant & Stratton Business Institute, 327
NLRB 1135, 1145 (1999). In the present case, the Respondent
failed to allege the limitation period as a defense until the filing
of its posthearing brief. Accordingly, I find that this defense has
been waived.
In addition, the Respondent offers no evidence that the Un-
ion had notice of the repudiation of the collective-bargaining
agreement on January 1, 2002. The first time that the Respon-
dent gave the Union notice of its repudiation of the collective-
bargaining agreement was its letter of February 1, 2002. See
also Waste Management of Utah, 310 NLRB 883 (1993) (a
refusal to bargain is not ripe when an employer has merely
failed to respond to a union’s demand for bargaining). Since the
charge was filed within 6 months of the date the Union first
received clear and unequivocal notice of the Respondent’s re-
pudiation of the agreement and refusal to bargain, the charge in
the present case is timely.
The remainder of the Respondent’s brief is devoted to a
lengthy recitation concerning the supposed application of Sec-
tion 8(f) of the Act. The short answer to this overly long argu-
ment is that the Respondent has failed to prove or attempt to
prove that it is in the building or construction industry. There is
simply no evidence in the record to support the Respondent’s
claim that it is in the building or construction industry. The
Respondent has the burden of proof to establish that it falls
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
within 8(f)’s exception. Brannan Sand & Gravel Co., 289
NLRB 977, 979 fn. 10 (1988). Therefore, the Respondent’s
argument under Section 8(f) is rejected because of its failure to
meet its burden of proof.
Accordingly, for the reasons set forth herein, I conclude that
by virtue of the preemptive and unlawful action of the Respon-
dent in refusing to recognize and to bargain with the Union, the
unilateral changes imposed by the Respondent to the working
conditions of its bargaining unit employees, and the Respon-
dent’s unlawful, constructive discharge of Greg Miller, a mem-
ber of the bargaining unit, the Respondent violated Section
8(a)(1), (3), and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is the exclusive bargaining representative of
telephone technicians employed by the Respondent.
4. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally and without notice refusing to recognize the
Union as the exclusive representative of the employees in the
appropriate bargaining unit and refusing to bargain with the
Union regarding a successor collective-bargaining agreement.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally and without notice changing the working
conditions of its bargaining-unit employees.
6. The Respondent violated Section 8(a)(1) and (3) of the
Act by constructively discharging its employee, Greg Miller.
7. The foregoing violations constitute unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully refused to rec-
ognize and bargain with the Union as the exclusive bargaining
representative of the employees in the appropriate bargaining
unit, I shall order it to recognize and bargain with the Union.
Having found that the Respondent unilaterally changed the
terms and conditions of the collective-bargaining agreement
between the Respondent and the Union which expired on De-
cember 31, 2001, I shall order that the collective-bargaining
agreement be reinstated forthwith and continued in effect until
after a new agreement or an impasse is reached.
Having found that the Respondent, unilaterally and without
bargaining with the Union stopped making payments to its
bargaining unit employees’ 401(k) plan on or about February
13, 2002, I shall order that it must make payments to the bar-
gaining unit employees’ 401(k) plan as required by the collec-
tive-bargaining agreement and as it had done before its unilat-
eral action, in the manner prescribed in Kraft Plumbing &
Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest as provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent, unilaterally and without
bargaining with the Union, decreased the work hours of its
bargaining unit employees from 40 hours to 32 hours per week,
I shall order the Respondent to restore the status quo ante and
make its bargaining unit employees whole for the loss suffered
by such unlawful action and pay to such employees the loss in
pay that they suffered when their workweek was reduced from
40 hours to 32 hours.
Having found that the Respondent discriminatorily dis-
charged Greg Miller, I shall order that it offer him reinstate-
ment and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, supra.
[Recommended Order omitted from publication.]