Freedman, S., Electric, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1981

256 N.L.R.B. 432 (N.L.R.B. 1981)

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. Freedman Electric, Inc. and International Broth-
erhood of Electrical Workers, AFL-CIO, Local
35. Cases 39-CA-13 and 39-CA-22
June 9, 1981
DECISIONS AND ORDER
On October 22, 1980, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed exceptions and a supporting brief,
and the Charging Party filed exceptions and a sup-
porting brief. The Respondent also filed a brief in
response to the General Counsel's exceptions, and
the Charging Party filed a brief in answer to the
Respondent's exceptions and a brief in support
thereof. '
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
i The General Counsel filed a motion to strike the affidavit dated Dec.
15, 1980, attached as Exh. A to the Respondent's brief in response to the
General Counsel's exceptions. The Charging Party filed a concurrence in
that motion. The General Counsel contends that the affidavit was signed
by Controller Michael Chambrello, and was not introduced as evidence
at the hearing, thus is not part of the record in this proceeding. The affi-
davit attempts to project the financial impact upon the Respondent as
leading directly to its financial demise. We find, in agreement with the
General Counsel, that Michael Chambrello's affidavit containing factual
allegations was not subjected to cross-examination, was not introduced at
the hearing, and thus is not a part of the record in this proceeding. See
Sec. 102.45 (b) of the Board's Rules and Regulations. Series 8. as amend-
ed. Accordingly, we grant the General Counsel's motion to strike Mi-
chael Chambrello's affidavit from the Respondent's brief. Southern Flor-
ida Hotel & Motel Association. and its Employer-Members The Esrate of
Alfred Kaskel d/b/a Carillon Hotel; The Estate of Alfred Kaskel d/b/a
Doral Hotel and Country Club; lThe Estate of Alfred Kaskel d/b/a Doral
Beach Hotel, 245 NLRB 561 (1979). Moreover, we note that the issue
raised by the Respondent's affidavit is a matter more appropriately raised
at the compliance stage of this proceeding
2 In adopting the Administrative Law Judge's finding that the Re-
spondent's refusal to be bound by the 1979 through 1981 NECA multiem-
ployer agreement with International Brotherhood of Electrical Workers.
AFL-CIO, Local 35, did not constitute a violation of Sec 8(a)(5) and (1)
of the Act, we do not adopt in full his rationale. We agree with his con-
clusion that Retail Associates, Inc., 120 NLRB 388 (1958), does not re-
quire that an employer who withdraws from a multiemployer bargaining
relationship on timely and unequivocal basis, as here, has a duty to ex-
press a willingness to bargain on an individual unit basis with the Union
in order for its withdrawal from the multiemployer unit to be effective.
In our view that is the meaning of that case, which stated the following
(p. 395):
We would accordingly refuse to permit the withdrawal of an em-
ployer or a union from a duly established multiemployer bargaining
unit, except upon adequate written notice given prior to the date set
by the contract for modification, or to the agreed-upon date to begin
the mutiemployer negotiations.
The Administrative Law Judge incorrectly made reference to Freed-
man's "Norwalk," Connecticut, office. We hereby correct this inadver-
tence by substituting "Norwich" for "Norwalk."
3 The Administraive Law Judge found that five of the nine discrimina-
tees were "constructively discharged" on May 31, 1979, and that four
were "unlawfully discharged" on that same date (Conclusions of Law 9
and 10.) The amended complaint here alleged the layoff and/or discharge
256 NLRB No. 68
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, S. Freedman
Electric, Inc., Hartford, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
of all nine in par. 8(a) and the constructive discharge of all nine in par.
8(b). The Board finds it unnecessary to make that distinction on the facts
of this case. In view of the record evidence which shows that the Re-
spondent would no longer recognize the Union as the employees' bar-
gaining representative, that "intolerable" changes would be made in the
employees' terms and conditions of employment, and that the Respondent
had already placed an advertisement in the newspaper for electricians on
May 27, we find that the termination of employees Sikorowicz, Stosato,
Coleman, and Robidoux was violative of Sec. 8(a)(3) and (1), since the
Respondent discharged them for the same reasons it constructively dis-
charged employees Broughton, Ingersoll, Baron. Silva, and Martiello,
notwithstanding the four electricians were terminated by the Respondent
before they quit or indicated their intention to quit, because the Respond-
ent assumed they would also "quit "
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: This
consolidated matter was heard before me in Hartford,
Connecticut, on various dates on and between April 21
and May 1, 1980, upon an amended consolidated com-
plaint, dated and issued January 30, 1980, and an amend-
ment thereto of March 24, 1980, which alleged generally
that S. Freedman Electric, Inc., Respondent herein, vio-
lated Section 8(a)(l), (3), and (5)1 of the National Labor
Relations Act, as amended, 29 U.S.C. §151, et seq., by
unlawfully terminating the employment of nine, named
employees, by unlawfully making certain unilateral
changes in terms and conditions of employment, and by
attempting, without lawful notice, to withdraw from a
multiemployer bargaining unit in which it had been, and
continued to be, a member. As an "alternative" pleading,
the General Counsel alleges that even if Respondent suc-
cessfully withdrew from the multiemployer unit, it nev-
ertheless, thereafter, upon request, failed to bargain in
good faith as an individual employer with the Charging
Party, the above-captioned International Brotherhood of
Electrical Workers, AFL-CIO, Local 35 (herein called
the Union). Respondent's timely answers admitted var-
ious allegations of the complaint, denied the unlawful
termination of the alleged nine discriminatees, denied
both any unlawful unilateral changes and its untimely
withdrawal from the multiemployer unit as well as with-
drawal of recognition from the Union as the collective-
bargaining representative of its employees, and inter-
posed 13 affirmative defenses. Several of the affirmative
defenses, on the General Counsel's motion, were struck
as insufficient in law to provide a defense. Others related
The first charge, filed June 6, 1979, alleged violation of Sec. 8(a)(5)
and (1) of the Act commencing December 22, 1978. A second charge,
alleging violation of Sec. 8(a)(1), (31, and (5) was filed June 22, 1979.
S. FREEDMAN ELECTRIC, INC. 433
to a possible compliance stage of the preceeding and still
others were provable under Respondent's denials and did
not constitute affirmative defenses. Respondent's affirma-
tive defense requesting referral to arbitration was denied
under the Board's contrary policy in cases involving, as
here, alleged discriminatory discharges, violating Section
8(a)(3) of the Act, General American Transportation Co.,
228 NLRB 808 (1977).
At the hearing, all parties were represented by counsel
and were afforded full opportunity to be heard, to intro-
duce and meet material evidence, to call and examine
witnesses, and to present oral argument. At the conclu-
sion of receipt of the evidence, all parties waived oral ar-
gument and filed posthearing briefs. Upon consideration
of the entire record, including the briefs, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, S. Freedman Electric, Inc., a Connecticut
corporation, at all material times has maintained its prin-
cipal office and place of business in Hartford, Connecti-
cut, where it is engaged in the business of electrical con-
tracting. In the course and conduct of its regular annual
business operations, Respondent purchases and receives
at its Hartford location goods and materials valued at in
excess of $50,000 which Respondent has caused to be
shipped to said location directly from points located out-
side the State of Connecticut. The complaint alleges, Re-
spondent admits, and I find that, at all material times, it
has been, and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Il. THE L.ABOR ORGANIZATION INVOI.VED
Local 35, International Brotherhood of Electrical
Workers, AFL-CIO (herein called the Union), is ad-
mitted to be, and I find is, a labor organization within
the meaning of Section 2(5) of the Act.
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Seymour Freedman, president of the Respondent since
1949, and Michael Chambrello, at all material times Re-
spondent's comptroller, are admitted to be supervisors
and agents of Respondent within the meaning of the Act.
Respondent, one of the larger electrical contractors in
the Hartford, Connecticut, area, first recognized the
Union in 1926 and became a member of Central Con-
necticut Chapter, National Electrical Contractors Associ-
ation, Inc. (Hartford Division), herein called NECA or
the Association, in 1949. Thereafter, Freedman was
prominent in the labor affairs of NECA as an employer-
bargainer in collective-bargaining sessions leading to
successive collective-bargaining agreements with the
Union covering "inside electricians."
There were approximately 14 employer-members of
the Hartford Division of NECA in December 1978 who
employed about 600 unit employees as of that time,
almost all of whom were members of the Union. On
May 31, 1979, a critical date herein, Respondent em-
ployed nine unit "inside electricians." Inside electricians
are those electricians ordinarily working on or inside
buildings as opposed to electricians working "outside"
on electric power lines.
On December 29, 1977, Respondent, consistent with
the prior practice of all employers using NECA as their
collective-bargaining agent, executed a "letter of assent"
(G.C. Exh. 2(b)), effective December 5, 1977, which au-
thorized NECA to act as Respondent's collective-bar-
gaining representative concerning its inside electricians in
collective bargaining with the Union. The letter of assent
provided that it would remain effective until terminated
by the employer with written notice given to NECA at
least 150 days prior to the expiration date of the existing
labor agreement. Pursuant to this letter of assent (and
similar assents executed by other NECA members),
NECA executed on behalf of its members, a collective-
bargaining agreement for the I-year period June 1, 1978,
through May 31, 1979 (G.C. Exh. 4). Thereafter, with
that agreement approaching expiration on or about May
11, 1979, NECA and the Union reached full agreement
on a further collective-bargaining agreement, covering
the same unit of inside electricians who were employed
by employers executing letters of assent. This later agree-
ment was executed on or about June 1, 1979, to run from
June 1, 1979, through May 31, 1981. In accordance with
past practice, the employers, having executed letters of
assent, did not sign the resulting collective-bargaining
agreement.
The principal issue in this case, aside from the alleged
unlawful discharges and constructive discharges of all
nine of Respondent's unit electricians on or about May
31, 1979, and the alleged unlawful unilateral changes
commencing June 1, 1979, is whether Respondent re-
mained a member of the Association and thereby became
bound by the collective-bargaining agreement executed
on June 1, 1979, the failure to abide by the terms of
which violates Section 8(a)(5) of the Act; or, in the alter-
native, if Respondent effectively withdrew from the As-
sociation, whether it nevertheless subsequently refused to
bargain in good faith with the Union on an individual
basis, also a violation of Section 8(a)(5). Actual bargain-
ing between NECA and the Union with regard to the
collective-bargaining agreement executed on June 1,
1979, started in or about March 1979.
B. Respondent's Attempted Withdrawal From NECA
and Its Repudiation and Withdrawal of Recognition
From the Union
It is uncontested that Michael J. Marzano has been, at
all material times, the managing director of NECA in the
Hartford area. Similarly, Robert Murray has been, and is,
the business agent in charge of the daily operations of
the Union.
On or about December 22, 1978, Seymour Freedman,
Respondent's president, sent similar letters (G.C. Exh. 6;
Resp. Exh. 5) dated December 22, 1978, to Robert
Murray and Michael Marzano, with copies of each letter
to the other party. The names of the addresses vary
S. FREEDMAN ELECTRIC, INC
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, in the letter to the Union (G.C. Exh. 6), there is no
expression of thanks to NECA as appears in the follow-
ing letter to NECA (Resp. Exh. 5):
Central Connecticut Chapter
National Electrical Contractors Association
151 Meadow St. Hartford, Conn. 06114
Att: Mr. Michael Marazano
Gentlemen:
After careful thought, the Board of Directors of
the S. Freedman Electric, Inc., Company, and its
subsidiaries, have voted to sever its working ar-
rangements with the International Brotherhood
of Electrical Workers Local No. 35.
Please consider this letter our official notification
of our intent to terminate our association with
I.B.E.W. Local No. 35 effective May 31, 1979.
We wish to express our sincere thanks to NECA
and to I.B.E.W. Local No. 35 for its help and co-
operation during the past years, and extend to
you our wish for continued success and prosper-
ity in the years ahead.
Very truly yours,
S. FREEDMAN ELECTRIC, INC.
s/s Seymour Freedman
Seymour Freedman
President
SF/m
cc: Local No. 35 I.B.E.W.
(Mr. Murray)
Called by the General Counsel as its witness, John E.
Flynn, New England vice president of I.B.E.W., testified
that while he did not see Respondent's December 22
letter to NECA (Resp. Exh. 5), he did see Respondent's
similar letter to the Union (G.C. Exh. 6) and said that he
construed it to be a request from Respondent to with-
draw from the NECA agreement and from future
NECA bargaining and agreements. There is no showing
that NECA or any member thereof objected to or com-
plained of Respondent's December 22 letters other than
Marzano's desire that Respondent reconsider its decision
to terminate its "working arrangements," i.e., its recogni-
tion of the Union, inter alia, because of the deterimental
effect of Respondent's withdrawal on other union con-
tractors (Resp. Exh. 3).
Freedman credibly testified that he wrote the above
letter and was withdrawing from NECA (and thereafter
was "going non-Union" and making changes in Respond-
ent's employees' conditions of employment) because of
business reasons, i.e., working under union conditions,
made his business operations noncompetitive. The evi-
dence is uncontested that thereafter in a series of meet-
ings January 1979 through January 1980, Freedman met
jointly with the Union and NECA wherein Respondent
sought (and NECA and the Union rejected) special, indi-
vidualized, more favorable contract terms from the
Union as a condition of Respondent (a) rejoining NECA
and (b) recognizing and dealing with the Union as statu-
tory representative of his inside electricians. There is no
dispute that Respondent abided by the substantive terms
of the existing collective-bargaining agreement until its
expiration on May 31, 1979.
Had Freedman's withdrawal from NECA been unac-
companied by his contemporaneous (December 22, 1978)
notice of forthcoming rejection of the Union as his em-
ployee's bargaining agent, no serious legal bargaining
issue would have arisen. Here, however, as more fully
disclosed below, Freedman and Respondent left no doubt
concerning his December 22 letters that Respondent's
otherwise timely withdrawal from NECA was to be ac-
companied by a repudiation of any obligation to recog-
nize the Union after May 31, 1979, contract expiration.
For he and Chambrello repeatedly told the Union and
his unit employees, commencing on or about January 18,
1979, that, commencing with May 31 contract expiration,
he was going "non-union" and "open shop" and would
then place new economically competitive terms and con-
ditions of employment into operation. Indeed, the evi-
dence shows that well prior to May 31, 1979, Respond-
ent was bidding for work based on noncompliance with
union contract conditions.
The precise bargaining issue raised is whether and to
what extent Respondent's December 22 conduct in re-
jecting the Union commencing May 31, 1979, at the time
of its otherwise timely notice of withdrawal from
NECA, affects the lawfulness of the withdrawal. Put an-
other way, the issue is whether an otherwise timely and
unequivocal withdrawal is tainted by an anticipatory re-
fusal to recognize and bargain individually with the
Union.
Discussion and Conclusions
There is no dispute that the rules regarding withdraw-
al of employers from multiemployer bargaining are gov-
erned by Retail Associates, Inc., 120 NLRB 388, 393-395
(1958):
Thus, the Board has repeatedly held over the years
that the intention by a party to withdraw must be
unequivocal, and exercised at an appropriate time.
The decision to withdraw must contemplate a sin-
cere abandonment, with relative permanency, of the
multiemployer unit and the embracement of a dif-
ferent course of bargaining on an individual-em-
ployer basis. The element of good faith is a neces-
sary requirement in any such decision to withdraw,
because of the unstablizing and disrupting effect on
multiemployer collective bargaining which would
result if such a withdrawal were permitted to be
lightly made. The attempted withdrawal cannot be
accepted as unequivocal and in good faith where, as
here, it is obviously employed only as a measure of
momentary expedience, or strategy in bargaining,
and to avoid a Board election to test the union ma-
jority. ...
Among other things, the timing of an attempted
withdrawal from a multiemployer bargaining unit
. . is an important lever of control in the sound
S. FREEDMAN ELECTRIC, INC. 435
discretion of the Board to ensure stability of such
bargaining relationships. We would accordingly
refuse to permit the withdrawal of an employer or a
union from a duly established multiemployer bar-
gaining unit, except upon adequate written notice
given prior to the date set by the contract for modi-
fication, or to the agreed-upon date to begin the
multiemployer negotiations. Where actual bargain-
ing negotiations based on the existing multiem-
ployer unit have begun, we would not permit,
except on mutual consent, an abandonment of the
unit upon which each side is committed itself to the
other, absent unusual circumstances ....
The General Counsel argues, and I agree, that the
phrase "adequate written notice" as it appears in Retail
Associates refers back to the necessity for the notice to be
"unequivocal notice." The General Counsel and Charg-
ing Party, however, also argue () that Respondent's De-
cember 22 letters to NECA and the Union were merely
withdrawal of recognition by Respondent from the
Union and that such withdrawal from reorganizing the
Union cannot constitute an "adequate written notice" of
withdrawal from NECA within Retail Associates. As I
understand the General Counsel's further argument (2)
the attempted withdrawal, whatever its timeliness and
unequivocality, fails to satisfy Retail Associates because it
was unaccompanied by Respondent's assurance of a will-
ingness to bargain on an individual basis. Thus, the Gen-
eral Counsel argues that the language in Retail Associates
(at 394), wherein the Board speaks of the "element of
good faith is a necessary requirement in any decision to
withdraw," relates to the question of the party's motive
in withdrawing; and that motive is as necessary an ele-
ment in the further, ultimate conclusion of "adequacy of
withdrawal" as are the elements of "timeliness" and "un-
equivocality."
With regard only to the element of "timeliness" there
is no dispute that Respondent met not only the statutory
requirement of notifying NECA and the Union of its
desire to withdraw from bargaining through NECA
prior to the commencement of negotiations, but also met
its contractual obligation to NECA and its members to
notify NECA not less than 150 days prior to the termina-
tion date of the contract. Thus in the absence of any spe-
cial circumstance (such as a question concerning repre-
sentation existing even before the commencement of ne-
gotiations which would make ineffective an otherwise
timely notice of withdrawal, Roberts Electric Co., Inc.,
227 NLRB 1312 (1977)), there is no question, and the
parties herein do not dispute, that Respondent's Decem-
ber 22 letter to NECA and the Union notifying them of
its desire to terminate the relationship with the Union,
was "timely." Cf. Groton Piping Corporation, 246 NLRB
99 (1979).
With regard to the Retail Associates requirement of
written "unequivocality" of the desire to withdraw from
NECA bargaining, read as a whole, Respondent's De-
cember 22 letters state that they are "official notification
of our intent to terminate our association" with the
Union and at the same time giving "thanks" to NECA
and to the Union for past "help and cooperation." It is
unnecessary to argue the issue of ambiguity in the letter
for the International Union's vice president, Flynn, clear-
ly construed the letter to the Union as constituting Re-
spondent's desire to withdraw from collective bargaining
through NECA whatever else the letter signified. Thus,
whatever issue could be raised with regard to the clarity
of Respondent's written expression of a relatively perma-
nent desire to avoid future bargaining through NECA,
the issue is resolved by the fact that, as above noted,
Flynn, in particular understood the meaning of the let-
ters and, in addition, there was neither an objection to
the meaning or intent of the letters nor to the withdraw-
al itself from either NECA or the members of the Asso-
ciation. Cf. Teamsters Union Local No. 378, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Capitol Chevrolet Co.),
243 NLRB 1086 (1979).2
There remains the question of whether and to what
extent there is a necessity of a willingness to bargain in
"good faith" on an individual basis in the withdrawal
rules under Retail Associates.
Multiemployer bargaining is a consensual arrangement.
Acme Wire Works, Inc., 229 NLRB 333, 335 (1977); Ship-
owners Association of the Pacific Coast, 7 NLRB 102
(1938); J. F. Swick Insulation Co., 247 NLRB 579 (1980).
The purpose of the sharp line in the Retail Associates rule
in establishing the method and timing of withdrawal is
that of "fostering and maintaining stability in bargaining
relationships," The Carvel Company, 226 NLRB 111, 112
(1976). The necessity for clearcut rules relating to the re-
lationship between and among the parties is to prevent
whipsawing and any disruption of the multiemployer
group for the purpose of bargaining leverage. Mor Pas-
kesz, 171 NLRB 116, 118 (1968), enfd. 405 F.2d 1201 (2d
Cir. 1969).
However, in The Carvel Company, supra at 112, as well
as in Acme Wire Works, Inc., supra at 335, and Groton
Piping Corp., supra, various administrative law judges
(and, in The Carvel Company, supra, the Board), have
suggested not only that an employer may withdraw
without the Union's consent, prior to the start of bar-
gaining, by giving unequivocal written notice of intent to
abandon the multiemployer unit, but, apparently, as a
further requirement, have added: "and to pursue negotia-
tions on an individual employer basis." Although these
statements appear either in dictum or as alternative hold-
ings, and thus are not required specifically as part of the
rationale in deciding the cases, their repetition requires
some discussion and observation especially where, as in
Groton Piping Corp., supra, the Board apparently accept-
ed the Administrative Law Judge's statement that the
Retail Associates rule requires for "effectiveness," as part
of the withdrawal mechanism, that the party seeking
withdrawal must "set forth its sincere willingness to
pursue negotiations on an individual basis." In Groton
2 It is undisputed that Freedman said that he was going "non-union" in
later discussions with the Union and NECA and also that, perhaps, in a
year or so, if his nonunion operation did not work out, he would return
to the union status I do not regard Freedman's speculative future plans
as a whipsaw tactic such as to make his otherwise timely withdrawal
"equivocal" within Retail Associates.
S. FREEDMAN ELECTRIC, INC.
-
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Piping Corp., supra, since the employer had unlawfully
recognized another union, that employer was unwilling
and unable to state in its defective and equivocal notice
of withdrawal (which was not served on the incumbent
Union) that it was indeed willing to bargain with the
Union (since it has already recognized another union). In
this posture, the Administrative Law Judge in Groton
Piping Corp., supra, asserted that not only was the notice
of withdrawal defective, but the Retail Associates rule
contained the further obligation, on the part of the with-
drawing employer, to notify the Union of the withdraw-
ing employer's willingness to bargain on an individual
basis.
On the other hand, the First Circuit's opinion, in The
Carvel Company v. N.L.R.B., 560 F.2d 1030, 1034-35
(1977), demonstrates that that court viewed the Retail
Associates rule more narrowly:
The application of the Retail Associates rule over
the last two decades has given it sufficient precision
of formulation to leave action under it unembar-
rassed by uncertainty and misgivings about possibly
vagarious administrative applications. No more is
necessary to operate safely in its domain of oper-
ation than advertence to the notice dates in the cur-
rent bargaining agreement. Freedom of action is un-
controlled as long as it is unequivocal and timely.
While it is true, as above noted, that even the require-
ments of timeliness and unequivocality may be limited by
the existence of external legal circumstances, e.g., Rob-
erts Electric Co., Inc., supra, it would appear that the
Retail Associates rule contains no obligation, insofar as
the withdrawal mechanism goes, for the withdrawing
party, as a matter of Law, to give notice of its willing-
ness to bargain on an individual basis in good faith. I fur-
ther conclude that the "good faith" requirements in the
statement in Retail Associates, supra, relate only to the ne-
cessity of good faith in the unequivocality and timing of
the withdrawal itself.
In Retail Associates, a labor organization was found to
be attempting to withdraw from multiemployer bargain-
ing as a temporary tactic to prevent an employer from
testing the Union's majority status in an election. The
Board held that there was no "good faith" in the with-
drawal in that the withdrawal was merely tactical and
therefore not "unequivocal." Thus, in Retail Associates,
the expression "good faith" relates back, not to the moti-
vation of the withdrawing party regarding his willing-
ness to bargain on an individual basis, but, rather, only to
the finding that the withdrawal was not of a permanent
nature and merely tactical in order to achieve ends detri-
mental to the otherwise stable multiemployer bargaining
obligation. In short, "good faith" measures only the un-
equivocal nature of the withdrawal. Since the withdraw-
al was tactical, it was not "unequivocal."
Moreover, to add the obligation of "good faith" to the
Retail Associates rule, in the sense that the withdrawing
employer, for instance, must demonstrate a good-faith
willingness to bargain on an individual basis, would lead
the Board into unnecessary and complex investigations of
irrelevant nature and would undermine the basic consen-
sual element. In addition, to require a nonconsenting,
otherwise withdrawing, employer to abide by the terms
of a multiemployer collective-bargaining agreement after
he has otherwise timely and unequivocally withdrawn
(whatever his intent regarding future individual bargain-
ing) could be punitive.
Lastly, to require proof of "good faith" assurance that
the employer will bargain on an individual basis as a
condition precedent to permitting his otherwise timely
and unequivocal withdrawal may bring the employer
into an anomolous position as a matter of law. In this
regard, it is not difficult to foresee cases where the with-
drawing employer, under no circumstances, could give
the assurance that he was willing to bargain in good
faith. Putting aside cases of "special circumstances," a
common example of such a situation would be the case
where a withdrawing individual employer wishes to
withdraw because of a substantial and good-faith doubt
of his employees' desires for continued representation by
the incumbent labor organization. In view of the fact
that, in a multiemployer unit, majority status is the ma-
jority of employees in the overall, multiemployer unit,
N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (2d
Cir. 1966), the only way that the individual employer
may test the continued lawful representation status of the
labor organization is timely to withdraw and then, upon
the labor organization's request for further bargaining on
an individual basis, file an RM petition to test the major-
ity status in the individual, as opposed to the multiem-
ployer, unit.
For all the above reasons, and notwithstanding that
the obligation to bargain on an individual basis often fol-
lows lawful withdrawal, I am convinced that there is no
requirement in the Retail Associates rule for a withdraw-
ing employer who withdraws on a timely and unequivo-
cal basis, to "set forth its sincere willingness to pursue
negotiations on an individual basis," as apparently re-
quired in Groton Piping Corp., supra. I conclude that the
Board's Retail Associates rule is limited, absent special
circumstances, as above noted, to the limits described by
the First Circuit in its decision in Carvel, supra.3 I further
conclude that Respondent herein, despite its withdrawal
letters of December 22, 1979, asserting its withdrawal of
future dealings with and recognition of the Union, repre-
sented a timely and unequivocal desire to withdraw from
membership in and bargaining through NECA and that
the withdrawal from NECA was effective on December
22, 1978, notwithstanding the existence of any additional
motive. This withdrawal relieved Respondent of an obli-
gation to execute or abide by the terms of the new
NECA-Union collective-bargaining agreement effective
June 1, 1979, through May 1, 1981. 4 Respondent's with-
3 1I am not adopting a court rule inconsistent with the Board's. I am, of
course, bound by the Board's view, Iowa Beef Packers, Inc., 144 NLRB
615 (1963). I conclude that the Board rule is concisely stated by the
Carvel court.
4 In view of this disposition, I need not reach or decide the further
questions relating to whether the parties' post December 1978 meetings
and discussions on the question of the conditions, if any, under which Re-
spondent would return to bargaining through the Association and execute
a NECA contract amounted to "acquiescence" on the part of the Union
Continued
S. FREEDMAN ELECTRIC, INC. 437
drawal being timely and unequivocal, its refusal to be
bound by 1979-81 agreement does not constitute a viola-
tion of Section 8(a)(5) and (1) of the Act.
I therefore recommend that that part of the consoli-
dated complaint, appearing in the amendment to the
amended complaint, dated and issued March 24, 1980, by
the Officer-in-Charge for Subregion 39, consisting of "al-
ternative" allegations in paragraphs 2(A) to (M), which
posit an 8(a)(5) violation on Respondent's failure to law-
fully withdraw from NECA be dismissed.
C. Alleged Discharge and Constructive Discharge of
Nine Unit Employees in Violation of Section 8(a)(3) of
the Act
The evidence is undisputed that the parties, in the
period March 1979 through January 9, 1980, met on nu-
merous occasions; that the Union was desirous of Re-
spondent executing the NECA agreement which was
being negotiated in the spring of 1979, and, after June
1979, had been executed; that Respondent, over and
over, mentioned that it was "going non-union"; and that
various economic considerations had caused it, com-
mencing May 31, 1979, to withdraw from NECA and to
repudiate its obligation to recognize the Union in its
status as its employees' collective-bargaining representa-
tive. The evidence is in dispute, however, concerning
whether, and to what extent, Respondent desired to
retain its unit of employees employed prior to May 31,
1979. In this regard, there is no dispute that Respondent,
on several occasions prior to May 31, 1979, (a) inquired
of the Union whether the Union would permit it to
retain in its employ the existing employees, all of whom
were members of the Union; and (b) stated that it wished
to retain at least some of the employees. There is no dis-
pute that the Union failed to give Respondent assurance
that the Union would not object to the continued em-
ployment of union members if Respondent failed to
"return to the fold"; i.e., bargain through NECA and
abide by the union contract. Lastly, the facts show that
in or about May 24, 1979, Respondent, having failed to
receive union assurance for Respondent's continued em-
ployment of its union employees, placed an advertise-
ment (G.C. Exh. 10) in a Hartford newspaper wherein it
advertised for journeymen inside electricians. The adver-
tisement, appearing Sunday, May 27, 1979, contained the
following:
in individual bargaining with Respondent, compare: I. C. Refrigeration
Service, Inc., 200 NLRB 687, 691 (1972), with Hartz-Kirkpatrick Construc-
tion Co., Inc., 193 NLRB 863 (1971), and see Teamsters Union Local 378
(Capitol Chevmlet Co.). supra, (consent of the multiemployer group re-
quired to permit untimely withdrawal) or with the further question
whether evidence of these further meetings may not be used to prove the
Union's "acquiescence" in individual bargaining because the parties met
pursuant to documents executed by all parties (except the General Coun-
sel) wherein they "reserved their rights" not to use whatever transpired
in these meetings as evidence to be introduced in any National Labor Re-
lations Board proceedings or to be divulged to the National Labor Rela-
tions Board. I recognize as a separate issue whether these meetings
amounted to re-recognition of the Union and good-faith individual bar-
gaining.
ELECTRICIANS
WE ARE NOW INTERVIEWING CONNECTICUT
LICENSED
JOURNEYMAN ELECTRICIANS FOR COMMERCIAL AND
INDUSTRIAL INSTALLATIONS THROUGH
CONNECTICUT
WE OFFER:
HOURLY RATES FROM $8.00-$12.00 HR.
40 HOUR WORK WEEK
PAID MEDICAL BENEFITS
EARNED HOLIDAY AND VACATION PLAN
STEADY EMPLOYMENT
FOR INFORMATION
CALL
S. FREEDMAN ELECTRIC, INC.
The alleged unlawful discharge and constructive dis-
charge of Respondent's nine, union-member inside elec-
tricians on May 31, 1979, is based on the following
events.
In a telephone call from Robert Murray to Seymour
Freedman sometime after December 22, 1978 (the date
of Respondent's dispatch of the withdrawal letters to
NECA and the repudiation letter to the Union) and
before January 1, 1979, Murray, having read the letters,
asked for a meeting with Freedman to discuss the matter.
Michael Chambrello stated that on January 17, 1979, he
attended the meeting requested by Murray (held at the
NECA office in Hartford, Connecticut) along with Sey-
mour Freedman, Murray, Robert Preston, a union offi-
cial, and Michael Marzano of NECA.
Murray asked whether Freedman was "serious" in
withdrawing from NECA and why Respondent was ter-
minating its membership in NECA as the bargaining
agent. Freedman answered that Respondent could not
live under the collective-bargaining agreement and
remain competitive. When Murray asked Freedman what
items in particular Freedman found to cause the lack of
competitive status, Freedman named five items: (1) lack
of flexibility of pay rates; (2) a better apprenticeship ratio
(a greater number of apprentices per journeymen on the
job); (3) elimination of travel pay; (4) the need for a 40-
hour workweek with straight-time pay for 40 hours
rather than the contract obligation of a 36-hour week
with overtime permitted only in emergency situations
and even then paid at premimum rates; (5) increased pro-
ductivity. Chambrello credibly testified that there was no
response from Murray except that Murray would take
the matter up in the future. Murray recalled that at this
and other meetings with Freedman, rather than Cham-
brello or Freedman demanding these five economic items
as conditions for rejoining the "flock" (a description con-
tinually used by Murray in requesting information con-
cerning the items which would be required by Respond-
ent in order for it to return to both recognizing the
Union and bargaining through NECA), Chambrello and
Freedman listed these five items as the reasons why Re-
spondent was going "nonunion." Murray particularly
denied that Respondent demanded these five items as
conditions for returning to bargaining through NECA or
returning to recognizing the Union. Upon my observa-
tion of Freedman and Murray while testifying the impre-
S. FREEDMAN ELECTRIC. INC.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cision of language and the intrinsic circumstances, I con-
clude that Freedman mentioned these items for both pur-
poses: to justify going "nonunion" and as the basis for re-
joining the "flock." In any event, Murray asked Freed-
man if Respondent's employees were aware that Re-
spondent had ceased bargaining through NECA and was
"going nonunion." Murray and Freedman used the ex-
pressions "going nonunion" or "going open shop" inter-
changeably at this and subsequent meetings. Both expres-
sions, I conclude, meant that Respondent would neither
recognize the Union as statutory bargaining agent nor
execute a union contract. In response to this question,
Chambrello told Murray that he was going to hold a
meeting with the Respondent's employees the next day
and tell them of Respondent's plans.
At noon of the next day (on or about January 18,
1979), Chambrello addressed six unit employees in Re-
spondent's Hartford office. Present were Stanley Inger-
soll, William Broughton, Antonio Silva, Herbert Laflin,
Edward Baron, Donald Martorelli, and various other
persons including Seymour Freedman's son, Mark Freed-
man, Respondent's estimator, Paul Giangrave, Jr., and
Respondent's job superintendent, William Bigl.5
Chambrello testified that he told them that he was ter-
minating Respondent's association with NECA; that Re-
spondent probably would not enter into a new contract
thereafter through NECA; that Respondent would like
to keep them as employees; that he would not decrease
their wages or benefits, but would pay all benefits that
they were receiving directly to them or, if he could con-
vince the Union to accept contributions, pay the moneys
into the union funds to which Respondent had therefore
previously contributed under the expiring contract. I do
not credit Chambrello's testimony of Respondent keep-
ing all benefits for the employees in view of the contra-
dictory testimony of General Counsel's witnesses herein
described, infra, which I credit. 6 In any event, Cham-
brello made no suggestion to the employees that Re-
spondent was going to cease recognizing or dealing with
NECA until May 31 contract expiration. Chambrello
asked the employees to continue in Respondent's employ
and told them that there would be further meetings with
the Union to see what arrangements might still be
worked out. In response to an employee's question
whether Respondent was going "nonunion" or "open
shop," Chambrello said that Respondent would be going
nonunion or open shop. In response to another question
from employees concerning the kind of medical program
that they could expect to be working under after May
31, Chambrello said that he did not know, but he would
get an excellent plan for them. He told the employees
that, if they remained with Respondent after the May 31
termination of the collective-bargaining agreement, they
would be working under a 40-hour a week rather than
36 hours.
IFour other electncians who were terminated on May 31, 1979, were
hired after this speech.
6 Respondent did not call Bigl or Mark Freedman to corroborate
Chambrello's version of his statement to the six employees at this meet-
ing. Although Giangrave testified in rebuttal, he failed to testify on this
matter.
Finally, Chambrello then told the employees to think
the matter over; that it was not necessary for them to
give him an answer at this time (in January 1979); but to
let him know in a reasonable time whether they would
remain in Respondent's employ or leave.
In regard to this Chambrello meeting with the six em-
ployees, the General Counsel called employees Silva, In-
gersoll, Broughton, Baron, and Martorelli. Laflin died in
February 1979.
Silva, who spoke only Portuguese and did not under-
stand Chambrello, was ultimately given a termination
slip by Respondent's estimator, Giangrave, on May 31,
1979. He had told Giangrave, who also enjoys the title
project manager, that he would not remain in the employ
of Respondent but would leave because of his reliance
on union membership and its benefits.
Stanley Ingersoll credibly testified that Chambrello
told him that he was satisfied with their work and that
they were welcome to stay with Respondent if they so
desired; that Respondent would not be able to carry a
full benefit program for them which they presently en-
joyed, especially the pension fund; that there would be
no pension fund, but there would be a new major medi-
cal program. Ingersoll also recalled that Chambrello said
that as of May 31, 1979 (with the termination of the ex-
isting collective-bargaining agreement), the door would
still be open for negotiations and he was not 100 percent
sure that Respondent would not negotiate with the
Union; that Respondent was not competitive and could
not compete against nonunion shops and felt that Re-
spondent had to make a change; and that Respondent
could not compete because of the additional costs re-
quired to be paid employees under the union contract.
Finally, Chambrello told them that he wanted to hear
from them when they made up their minds concerning
whether they wanted to continue to work for Respond-
ent. Chambrello told them that if they elected to stay
with Respondent, they would get the same pay as before.
Ingersoll could not recall that Chambrello said anything
regarding direct payments to them of contributions
which Respondent had previously paid into the Union's
funds pursuant to the collective-bargaining agreement. I
find that Chambrello made no such assurance or offered
direct payment to employees of moneys Respondent was
contributing to the union pension fund. Around the first
of May, Ingersoll told Chambrello that he had made up
his mind and decided to remain a member of Local 35.
Chambrello said that he appreciated Ingersoll's wishes
and there were no hard feelings. On May 31, Ingersoll
received his pay and a layoff slip. It was stipulated that
all the unit employees, the nine alleged discriminatees,
received layoff slips from Respondent on May 31; that
the reason on the layoff slip for each layoff was "lack of
work"; and it is uncontested that, at the time of layoff,
there was much work to be done on the jobs that these
employees were working on. It is further uncontested
that the reason for the "layoffs" advanced on the layoff
slips was untrue and was given to the employees only so
that they could qualify for the receipt of unemployment
insurance benefits under the laws of the State of Con-
necticut. Murray and Freedman, however, contradict
S. FREEDMAN ELECTRIC, INC. 439
each other concerning who wanted or insisted on this
untrue statement on the slip. It is unnecessary to resolve
this issue.
William Broughton credibly recalled that, at the Janu-
ary 18 meeting, Chambrello said that things had not
worked out as they had figured and that Respondent was
going "nonunion"; that Chambrello offered the employ-
ees a plan if they wished to remain: there would be no
pension, but there would be a health plan; and they
would work with approximately the same wages. Like
Ingersoll, he recalled that Chambrello asked the employ-
ees to inform him of their decisions to remain with the
Respondent but not at the meeting. Broughton, sometime
before May 1979, told estimator Giangrave that he was
not staying with Respondent if the Respondent did not
remain with the Union. At the end of May 1971 he was
given his pay and the above termination slip.
Martorelli testified that Chambrello said that Respond-
ent was going "open shop"; that the wages would be the
same; and there would be some type of insurance policy.
Martorelli also recalled nothing being said about pen-
sions but recalled that Chambrello said that he would
like to hear from the employees as to their intentions
whether they would stay or leave. Martorelli never told
Chambrello of his decision, but on May 31, like the other
inside electricians, he was terminated with a similar ter-
mination slip.
Finally, Edward Baron recalled that Chambrello told
them that Respondent was "thinking" of going open
shop; that Respondent had sent a letter to Local 35; and
that the employees had 6 months to make up their minds
concerning their willingness to remain with Respondent.
Chambrello told them that he was still not sure if Re-
spondent was going open shop or "Union." He recalled
that Chambrello said that they might make as much as
$18,000 a year if they remained with the Company. In
particular, he recalled that Chambrello said that the em-
ployees would have to give up certain benefits if there
were an open shop, but he recalled that there were no
specific benefits mentioned. In the last week of May
1979, Baron telephoned Chambrello and told him that he
would not remain in Respondent's employ because he
would lose too many benefits including his pension.
On May 30, 1979, the day before the discharges, Ken-
neth Leech, assistant business agent of Local 35, instruct-
ed all of Freedman Electric's employees to attend a
union meeting early the next morning at the union office.
At or about 4 p.m., however, on May 30, on Murray's
uncontradicted, corroborated and credited testimony, he
telephoned Freedman who was in his Norwalk, Con-
necticut office but reached only Freedman's office cleri-
cal at that phone number. Murray told her to tell Freed-
man that the Union took no position concerning Re-
spondent's continued employment of its members. This
telephone call resulted from the above-noted inconclu-
sive answer which the Union gave Respondent upon Re-
spondent's repeated requests to retain the Union's mem-
bers as its employees.
It should be noted that during May 1979 Respondent,
on several occasions, told the Union that, in view of the
Union's failure to assure it of continued employment of
union members, it would advertise for replacement elec-
tricians. By May 27, 1979, as above noted, there ap-
peared in a Hartford newspaper the advertisement offer-
ing employment to Connecticut-licensed journeymen
electricians with hourly rates from $8 to $12 per hour:
40-hour workweek; paid medical benefits; earned holiday
and vacation plan. Nothing appears in the advertisement
regarding a pension.
I find that Murray's 4 p.m., May 30, 1979, telephone
call to Freedman in Norwalk resulted from a decision
reached by the Union, under the direction of Vice Presi-
dent Flynn, to seek legal advice concerning the Union's
position on Respondent's retention of union members in
its employ after bargaining had theretofore failed to
bring Respondent's "back into the fold" i.e.: signing the
new NECA agreement. The Union succeeded in obtain-
ing this advice immediately prior to Murray's call to
Freedman.
On May 31, pursuant to Kenneth Leech's direction of
the prior day, all of Respondent's unit employees met
with Murray at the Union's office from 7 a.m. to about
10 a.m. The evidence of what occurred there is unsure.
What is clear is that there was no evidence that Murray
told them they could not work for Respondent. It ap-
pears that Murray told the employee-members that he
was still trying to get Respondent to execute the NECA
agreement. Chambrello asserts, and Murray denies, that
sometime during that meeting, Murray telephoned
Chambrello in Respondent's Hartford office and made
certain abrupt remarks particularly including a Murray
inquiry whether the parties might still work out their dif-
ferences and have the employees remain in employment.
Murray denies any such call. The employees sitting near
Murray noted that he used the telephone but none of
them could determine who he called or the substance of
any conversation. Murray failed to identify who, if
anyone, he called.
In any event, about 7:50 a.m. on May 31, 7 Murray
again telephoned Freedman in Norwalk, Connecticut,
and this time reached him. As noted hereafter, Freedman
asserts, and Murray denies, that Murray told him (1) the
Union would not allow Respondent to retain as its em-
ployees the union members and (2) asked him for a
favor: to provide the employees with termination slips
showing that they were laid off for lack of work. Con-
tradicting Freedman, Murray asserts that he told Freed-
man that he understood Freedman was terminating the
employees, and, when Freedman affirmed that he was,
Murray asked him what kind of termination slip he was
giving. When Freedman said that he was giving them a
slip which would permit them to qualify for Connecticut
unemployment compensation, by putting "lack of work"
on the slip, Murray said that he sarcastically answered
"that's kind of you."
GC. Exh. 13, the telephone company record of the Union's long-
distance phone calls, corroborating Murray's testimony, demonstrates
that the Union telephoned Norwalk. Connecticut, on May 30 at 4:13 p.rn
and spoke for about 1 minute. This relates to Murray speaking to Freed-
man's office clerical. The same exhibit shows that, on May 31, at 7:40
am., the Union made a telephone call to Norwalk which lasted I minute
Both phone calls were made to Respondent's phone number in Norwalk
at which Freedman was located
S. FREEDMAN ELECTRIC, INC 1?
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 10 a.m. on May 31, the inside electricians left
the union meeting, reported to work, did perform work,
and were terminated at the end of the day with slips
showing termination for lack of work.
Thus, there was mutually contradictory testimony by
Murray, Freedman, Chambrello, and Giangrave concern-
ing whether, according to Respondent's witnesses,
Murray said that the Union would not permit its mem-
bers to work after May 31 in a nonunion shop; and, ac-
cording to Murray, that he explicitly told Freedman on
May 30 (through contact with the office clerical) and di-
rectly on May 31 that the decision of whether to contin-
ue the Union's members in employment was a decision
up to the employees and that the Union would take no
position.
There is no dispute that in meetings with the Union
after June 1, 1979, Freedman and Chambrello told the
Union of Respondent's continuing success in bidding jobs
with nonunion rates and the amount of money to be
made under these circumstances. In my view of this
matter, the resolution of such conflicting testimony is un-
necessary and not controlling. On this record, Respond-
ent, in my view, had no legal right to terminate the nine
journeymen regardless of the Union's position or state-
ments. Indeed, it is no defense to Respondent that the
Union may have "caused" or "attempted to cause" Re-
spondent to terminate the employees because of consid-
erations involving their membership in or loyalty to the
Union. See Section 8(b)(2) of the Act. Whatever the law-
fulness of the Union's actions, a matter not before me,
Respondent may not defend its own discriminatory con-
duct on any union causation. In any event, Respondent's
initial repudiation of the Union, its continued statements
of a desire to operate on a nonunion basis, and its termi-
nation of the nine employees, all union members, are acts
consistent with an unlawful discriminatory motive of its
own, quite apart from any union action. That Respond-
ent desired to retain the employees-or at least some of
them-under diminished conditions does not seriously
mitigate against this. It gave the employees the unlawful
choice of quitting or working under poorer conditions.
Also, as noted hereafter in the text, in determining the
factual issue of whether the Union, by its conduct, led
Respondent to believe that the Union would not permit
its members to continue to work with Respondent if Re-
spondent failed to have contractual relations with the
Union, I was adversely impressed, in particular, by Re-
spondent's failure to call as its witness (or to explain the
failure) the office clerical in Seymour Freedman's Nor-
walk, Connecticut, office who, on the uncontradicted
testimony of Union Agent Murray (corroborated by the
telephone company's records) received Murray's phone
call on May 30 and in Freedman's absence, was advised
that the Union "took no position" with regard to the
continued employment of the inside electricians. I would
and do draw an adverse inference from the failure of Re-
spondent to meet and deny Murray's corroborated testi-
mony. Such adverse inference necessarily affects Freed-
man's subsequent testimony with regard to the disputed
conversation on May 31 both on the telephone and alleg-
edly in person between Murray and Freedman in Freed-
man's Norwalk office. The employees reporting for work
on May 31 after attending the union meeting is too am-
biguous to forcefully support or detract from this infer-
ence, although it is not inconsistent with the Union's po-
sition that it never prevented the employees from work-
ing for Respondent.
1. The constructive discharges of Ingersoll,
Broughton, Baron, Silva, and Martiello
In Haberman Construction Co., 236 NLRB 79, 87
(1978), enfd. 618 F.2d 298 (5th Cir. 1980), the Board held
that an employer's announcement to union-member em-
ployees covered by a collective-bargaining agreement
that the employer was going "open shop" violated Sec-
tion 8(a)(l) of the Act and that where, as here, it was
coupled with a statement that it would no longer pay
fringe benefits (contributions to the Union's welfare and
pension funds) and the employees thereafter quit because
of such conduct, such "quits" constituted constructive
discharges in violation of Section 8(a)(3) and (1) of the
Act. The Board held that such changes in the terms and
conditions of employment of these employees met the
Board's requisite qualification for the existence of a con-
structive discharge of "intolerable" change in employee
working conditions. See Johnson Electric Co., 196 NLRB
637 (1972). Such conduct tends to discourage union
membership of employees. Thus, the two conditions in
the face of employee "quits" necessary for a conclusion
of "constructive discharge" (a) intolerable changes in
conditions; and (b) conduct to discourage union member-
ship, exist in this case as in Haberman Construction Co.,
supra. See N.L.R.B. v. Haberman Construction Company,
618 F.2d 288 (5th Cir. 1980).
In the instant case, no credibility resolution is neces-
sary for these issues. Here, Chambrello admitted that he
told the employees that Respondent was going "open
shop" or "nonunion" which meant to these employees
then covered by a collective-bargaining agreement and
union recognition that Respondent would no longer rec-
ognize the Union as their statutory collective-bargaining
representative after May 31; that he was giving them a
choice of remaining employees on Respondent's unilater-
ally imposed terms (nothing here of bargaining first with
the Union) or leaving; that, thereafter, commencing May
31, they would have no pensions and have to work a 40-
hour week in order to remain in Respondent's employ,
and be paid straight time for the 40 hours rather than to
work only 36 hours and receive premium pay if they
worked after 36 hours. These are "intolerable" changes
in the terms and conditions of employment under Haber-
man Construction Co., supra, and conditioning their post-
May 31 employment (albeit without actually telling them
that they would be unwelcomed if they rejected these
conditions) on their accepting such terms was sufficient
to cause constructive discharges of the five employees
(Laflin died) who were offered Chambrello's choice and
ceased work on May 31 rather than work under these
conditions. Contrary to Respondent's assertion that these
voluntary cessations of work were not constructive dis-
charges, I conclude that the May 31, 1979, terminations
of Stanley Ingersoll, Edward Baron, William Broughton,
Antonio Silva, and Donald Martiello, who told Respond-
S. FREEDMAN ELECTRIC, INC. 441
ent they would not work under those conditions amount-
ed to constructive discharges.
It might be noted, in passing, that, even if Chambrello
had assured the employees that they could retain their
union membership while working in a nonunion shop
under nonunion conditions, it would not alter the conclu-
sion that the employees were constructively discharged
since the choice of working under otherwise unilaterally
and unlawfully imposed conditions of employment equal-
ly discourages union membership. See Electric Machinery
Company, 243 NLRB 239 (1979); 44 Ann Rep. 106
(1979). The Board does not require, as a prerequisite for
finding constructive discharges, that the employer's uni-
lateral action required those employees to abandon or
lose their union membership. Rather, forcing employees
to make a choice of working under illegally imposed
conditions or quitting their employment discourages
union membership almost as effectively as actual dis-
charge. To quit under those conditions demonstrates a
constructive discharge as well as an employer's ultima-
tum. Thus the above five employees, as alleged, were
constructively discharged in violation of Section 8(a)(3)
and (1) of the Act.
2. The discharges of Sikorowicz, Stosato, Coleman,
and Robidoux
I further conclude that the remaining four employees
terminated that day, Andrew Sikorowicz, Louis Stosato,
Frances Coleman, and Henry Robidoux were unlawfully
discharged in violation of Section 8(a)(3) and (1) of the
Act. See McCormick Electrical Construction Co., Inc., 240
NLRB 418 (1979).
Comptroller Chambrello testified that Murray tele-
phoned him about 9 a.m. on May 31, asked if they could
work out a plan to have Respondent keep the employees,
and then abruptly said that he would call again. Accord-
ing to Chambrello, Murray did not call again.
Murray denies any such telephone call. As above
noted, Murray testified that he telephoned only Freed-
man that morning while Freedman was in Norwalk,
Connecticut, and said that he told Freedman that he un-
derstood Freedman was terminating the employees that
day. According to Murray, Freedman admitted that he
was terminating the employees that day. Freedman
denied any such statement. Murray further testified that
in that conversation with Freedman, which Freedman
admits to have occurred that morning, Murray denied
asking Freedman to put "lack of work" on the separation
notices to the inside electricians. As above noted, in view
of Respondent's failure to produce or adequately explain
the absence of the office clerical in regard to the unden-
ied Murray telephone call to the clerical on the after-
noon of May 30, I would ordinarily credit Murray's ver-
sion of the conversation wherein he said the Union took
no position and Freedman said he was terminating the
employees. I need not, however, resolve this issue but, as
noted hereafter, credit Freedman, arguendo.
It should be noted, moreover, that an hour or so after
Murray allegedly telephoned Chambrello, in the morning
of May 31, Freedman testified that he telephoned Cham-
brello to advise Chambrello of Freedman having re-
ceived a phone call from Murray wherein Murray alleg-
edly questioned whether Respondent was going to lay
off the employees. Freedman and Chambrello, in mutual
corroboration, testified that in Freedman's call to Cham-
brello, Chambrello told Freedman of Murray's prior call
to him. Over the General Counsel's objection, I permit-
ted Giangrave's hearsay corroboration of the fact that
Murray, indeed, did telephone Chambrello that morning,
contrary to Murray's denial. But, if Murray, contrary to
his denial, did telephone Chambrello on the morning of
May 31 inquiring whether there was some way whereby
the parties could keep the inside electricians working for
Respondent; and if, according to Chambrello's and
Freedman's testimony, Chambrello about 1 hour thereaf-
ter told Freedman of Murray's telephone conversation
questioning whether a plan could be devised to keep the
employees, then the record is barren of any explanation
why Freedman did not, then and there, after receiving
on the morning of May 31 from Chambrello the news of
Murray's call to Chambrello, try to contact Murray in a
last-minute effort to keep the nine inside employees
working for Respondent. This, according to Respond-
ent's repeated testimony, was a most important object for
Respondent. Instead, Freedman terminated the employ-
ees. Such conduct would be clearly consistent with Mur-
ray's version of a later May 31 morning visit to Freed-
man (after his earlier May 31 telephone call), wherein
Murray asked Freedman if there were any "concessions"
to resolve the problem and allegedly Freedman answered
"we're going through with it." Freedman denied that
any such visit by Murray took place. Further, Freed-
man's failure to contact Murray, crediting arguendo
Freedman and Chambrello, to seek a last-minute device
to keep the union employees is consistent with Respond-
ent's success in attracting nonunion employees in the 4-
day period following its May 27 newspaper advertise-
ment. It is also consistent with Freedman's and Cham-
brello's later statements that Respondent was enjoying a
new, large volume of business generated by bidding on a
nonunion basis.
As above noted, Murray testified (as corroborated by
the telephone bill) that he reached Freedman's office
clerical on the day before and told her that the Union
took no position on whether Respondent should retain
the employees. While Freedman may have inferentially
denied knowing of this phone call, he did not appear in
rebuttal to clearly deny it, nor, more important, was the
office clerical produced to deny Murray's testimony. My
view of Respondent's failure to adequately explain its
failure to produce its clerical to deny Murray's alleged
message is dispositive. On resolution of this credibility
issue, I have taken in to account Respondent's argument
(Resp. Br., p. 46) that the General Counsel's witnesses
(Broghton and Baron) testimony shows that Murray was
still meeting with them at the Union's office on the
morning of May 31 when Murray alleged that he was in
Norwalk talking with Freedman. Whatever the accuracy
of their testimony on the question of time, often notori-
ously unreliable, I conclude that this element in favor of
Respondent's argument that Murray did not speak with
Freedman on the morning of May 31, as he testified, is
overbalanced by Respondent's failure to produce the
S. FREEDMAN ELECTRIC, IN .
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical and by the above-circumstantial evidence
demonstrating reasons whereby Respondent desired to
rid itself of employees because of their affiliation and ac-
customed wages and conditions of employment.
I therefore conclude that the above four employees
were unlawfully discharged on May 31 even if Freedman
is credited and that Murray repeatedly told him that the
Union would not permit the employees to work for Re-
spondent without a union contract. Instead of permitting
the inside electricians, other than the five who had al-
ready been constructively discharged in their "quits," to
quit (which might have occurred), Respondent terminat-
ed them. There is no showing that these employees com-
municated an intent to quit to Respondent or that Re-
spondent inquired of these employees if they desired to
remain regardless of any Union sentiments and unhappi-
ness. Respondent may have assumed that these employ-
ees would no longer work and placed its advertisement
in the Hartford newspaper anticipating their quitting.
The employees had no opportunity to quit. I conclude
that at the very least Respondent was obliged to inquire
of these employees, notwithstanding the Union's state-
ments and sentiments, whether the employees themselves
intended to quit. Failing that, as here, Respondent could
not lawfully terminate them speculating-perhaps reason-
ably-that the employees would not work without a
union contract.
Indeed, if Respondent hired nonunion employees
through the newspaper advertisement and terminated
these four union-member employees only because it be-
lieved that they, like their brethren who had already
"quit," would not work under illegally (i.e., unilaterally)
imposed nonunion conditions, the discharges would still
be unlawful.
Further, as Respondent concedes, there is not a scintil-
la of evidence that, whatever the Union told Respond-
ent, it told these four employees, or any other employees
that they could not work for Respondent (regardless of a
reason) or that they would suffer reprisals if they did
so.' In the absence of any evidence to the contrary, I
credit Flynn, Leech, and Murray that the Union made
no such statements.
Finally, in spite of Respondent's testimony and other
suggestions (Resp. Exh. 12, rejected) that the Union
caused it to terminate the nine electricians on May 31 by
failing to give assurances to Respondent that the employ-
ees would continue to work for Respondent; or that they
quit, and that Respondent, at all times, desired to keep
these employees in employment, yet even after the issu-
ance of complaint on July 20, 1979, alleging unlawful
termination of these nine employees, Respondent, on this
On cross-examination, none of the employees suggested that the
Union said they could not work for Respondent. Respondent. neither on
serving the separation slips on the nine employees, nor at any other time,
told the employees that Respondent was terminating them on the Union's
demand. Rather, the circumstances lead to the conclusion that the re-
sponse to Respondent's May 27 newspaper advertisement was sufficiently
positive so as to permit Respondent to successfully continue its business
operations without union employees and without the Union. Respond-
ent's suggestion (br., p 26) that Ingersoll "understood" he would be pe-
nalized is irrelevent to any act by the Union. As the transcript shows,
there was no union action to support that understanding
record, failed to offer any of the alleged discriminatees
reinstatement.
I therefore conclude that the above four employees
were unlawfully terminated and discharged in violation
of Section 8(a)(3) and (1) of the Act on May 31, 1979.
D. The Unilateral Changes Commencing June 1, 1979
The complaint alleges that commencing June 1, 1979,
Respondent violated Section 8(a)(5) and (1) of the Act
by making unilateral changes in the terms and conditions
of employment without having afforded the Union an
opportunity to negotiate and bargain in the following
four respects: (a) in failing to pay contributions into the
employees' benefit funds; (b) in failing to contribute to
the medical benefit fund; (c) in failing to contribute to
the pension fund; and (d) in failing to reimburse employ-
ees for travel money between jobs.
The background to this allegation must include Re-
spondent's December 22, 1978, withdrawal from NECA
and repudiation of the Union as the unit employees' stat-
utory representative; Chambrello's January 18, 1979, dec-
laration to unit employees with regard to their loss of
benefits and Respondent going "nonunion"; Freedman's
and Chambrello's statements in the period January-May
1979, to the Union that Respondent was going "non-
union" or "open shop"; and meetings between Respond-
ent and the Union in the aforesaid period. At the hear-
ing, Seymour Freedman admitted that commencing June
1, 1979, without giving the Union notice and an opportu-
nity to bargain, Respondent, notwithstanding the terms
of the contract which had expired on May 31, 1979: (a)
instituted a 40-hour workweek whereas the expired con-
tract had a 36-hour workweek; (b) instituted a rule of
paying straight time for the difference between 36 and 40
hours of work rather than a premium rate as required by
Section 2(c) of the expired collective-bargaining agree-
ment, and, as demonstrated by Respondent's records
(G.C. Exh. 7), (c) changed the hourly wage rates of em-
ployees after June 1, 1979; (d) failed to pay the employ-
ees a mileage allowance; (c) discontinued the paid travel
time; (f) changed the ratio of apprentices to journeymen
under article IV, section 6 of the collective-bargaining
agreement; and (g) failed to pay into the union pension
fund, hospital and medical benefits fund, and apprentice
fund. Freedman further testified that these items were re-
peatedly mentioned in formal meetings with the Union
prior to June 1, 1979, wherein the Union desired to have
Respondent return to the NECA contract. Respondent
asserts that these meetings constituted "bargaining" on
these matters, and, sub silentio, a re-recognition of the
Union by Respondent. As above noted, Murray testified
that, while these items were indeed mentioned, they
were not conditions under which Respondent would
"return to the fold," but were merely the elements that
made Respondent noncompetitive and caused it to be
"nonunion." I have above concluded that, inter alia, even
after May 31, Respondent mentioned these items to sup-
port its decision to go "nonunion."
In context of Respondent's particular unfair labor
practices, these conversations between the parties, both
before and after May 31, could hardly be called bargain-
S. FREEDMAN ELECTRIC, INC. 443
ing, much less good-faith bargaining, especially in view
of Chambrello's January 18 speech and Respondent's De-
cember 22, 1978, notice of future repudiation of any obli-
gation to recognize or bargain with the Union.
In agreeing with the Board, the court of appeals in
N.L.R.B. v. Haberman Construction Company, supra at
302-303, notes that at:
. . . contract expiration, an employer may not uni-
laterally alter, without bargaining to impasse, a con-
tractual term that is a mandatory subject of bargain-
ing. This result obtains because such a term "by op-
eration of statute continues even after the contract
embodying it has terminated." . . . Examples of
contractual terms which survive contract expiration
include a schedule of wages and fringe benefits ...
employee seniority rights . . . and grievance proce-
dures. .... Since [these] benefits are contractual
terms that continue by operation of the Act, re-
spondent would not have been free to cancel those
benefits, even though the contract expired, without
first bargaining to impasse.
The court of appeals adds the observation that con-
tractual terms which are solely a product of the contract
itself form an exception to the general rule and that these
nonsurviving terms of the contract include the arbitra-
tion and union-security provisions in the contract.
N.L.R.B. v. Haberman Construction Co., cases cited in fn.
16, at 302. Accord: Ortiz Funeral Home Corp., 250
NLRB 730 (1980).9 In short, contract provisions govern-
ing the employer-employee, rather than employer-union,
relationship survive. Gordon L. Rayner d/b/a Bay Area
Sealers, 251 NLRB 823 (1980).
A word might be added here in regard to Chambrel-
lo's testimony that, relating to pensions, he offered (in his
statement to employees on or about January 19, 1979) to
pay the pension contributions either directly to the em-
ployees or, if he could persuade the Union, into the
union pension funds. I have not credited this Chambrello
testimony. Instead, consistent with Respondent's newspa-
per advertisement, I have credited the contrary testimo-
ny of the General Counsel's witnesses: that Chambrello
told them that their pension would not be continued if
they chose to remain in Respondent's employ after May
31, 1979. However, even if Chambrello's version is ac-
cepted, his statement agreeing to make the employer's
contribution directly into their paychecks rather than
supporting a multiemployerwide pension plan, obviously
unlawful direct dealing, nevertheless would constitute, in
I As will be hereinafter noted, the remedy in this case will, inter alia,
require Respondent to retroactively reinstate all the terms and conditions
of employment of the collective-bargaining agreement which expired on
May 31 other than, for example, the union-security and arbitration de-
vices. Since there was no bargaining impasse much less a good-faith im-
passe. Pillowtex Corporation, 241 NLRB 40 (1979), the employees hired by
Respondent on and after June 1, 1979, as well as those unlawfully terni-
nated on or before May 31, 1979, may well receive the benefits of conl-
tract coverage. It is irrelevant, for 8(aH5) purposes, that Respondent's
unilateral changes may have been based on compelling economic consid-
erations. Here, there were no compelling economic considerations shown
In any event, its motives, under Sec. 8(a)(5), for these unlawful changes,
are irrelevant. NL.R.B. v. Laredo Coca Cola Botling Co., 625 F.2d 593
(5th Cir. 1980).
addition, a violation of Section 8(a)(1) of the Act and, as
Respondent's further conduct demonstrated after June 1,
1979, a violation of Section 8(a)(5) in the actual unilateral
changes. Thus, certainly after Respondent's repudiation
of the Union as collective-bargaining representative, even
if Respondent would pay the amount of the pension
funds directly into the employees' pockets, such a device
would nevertheless constitute a serious infringement of
employee collective-bargaining rights and part of an "in-
tolerable" change in their wages and conditions of em-
ployment, as above noted. For it has long been recog-
nized that pension and welfare benefits, being in the
nature of compensation, are among the more important
subjects of bargaining, Brockway Motor Trucks v.
N.L.R.B., 582 F. 2d 720 (3d Cir. 1978); and employees
have a substantial interest in obtaining these benefits
from a multiemployer fund, both because of the obvious
advantages of broader-based funds which can take ad-
vantage of economies in administrative costs and invest-
ments, and because, through industrywide funds, employ-
ees can generally enjoy continuity of benefits, and accu-
mulate continuous seniority towards their retirement
benefits even when they change employers. Association of
Plumbing Contractors v. Plumbers' Local 3, 587 F.2d
1367, 1375 (10th Cir. 1978).
F. Respondent's Refusal To Bargain on an Individual
Basis
The amended complaint alleges that Respondent, on
various dates in March, April, and May, 1979, refused to
bargain in good faith with the Union on an individual
basis.
Respondent's answer to the original amended consoli-
dated complaint, dated July 24, 1979, admits both the ap-
propriateness of a unit composed of: "All inside electri-
cal workers employed by the Respondent at its Hartford
location," and that such unit"0 was the basis of recogni-
tion contained in successive collective-bargaining agree-
ments with the Union, the most recent of which was ef-
fective in the term June 1, 1979, through May 31, 1980.
In its further answer filed on April 21, 1980, at the open-
ing of the hearing, Respondent continued in those admis-
sions but denied that the Union, at all material times,
continued to be the unit employees' collective-bargaining
representative.
In view of the fact that (1) Respondent, at all material
times prior to the May 31, 1979, recognized the Union in
the alleged lawful unit; that (2) such recognition, em-
bodied in an otherwise valid collective-bargaining agree-
ment, raised a presumption of continuing majority status;
and (3) that Respondent would rebut that resumption
only by showing that it unlawfully dissipated that major-
ity by its own unlawful acts, I find and conclude that all
material times, both before and after May 31, 1979, the
Union was, and continued to be, the statutory collective-
bargaining representative of Respondent's employees in
in Under the General Counsel's alternate pleading, if Respondenti failed
to lawfully ithdra from NECA, then the appropriate unit would have
been the NECA-wide unit If the withdrawal as lawful, as I hase held.
the appropriale bargaining unit would bh that of Respondcnt's own em-
ployees
S. FREEDMAN ELECTRIC, INC.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-described unit of "All inside electricians em-
ployed at Respondent's Hartford location."
With regard to Respondent's failure to bargain collec-
tively on an individual basis (an obligation arising on and
after May 31, 1979), the following elements are uncontra-
dicted: (1) on December 22, 1978, Respondent, by its
written communications to NECA and the Union, stated
that, effective on and after the termination of the con-
tract on May 31, 1979, Respondent would withdraw rec-
ognition of the Union as the statutory representative of
the unit employees; (2) on or about January 18, 1979, Re-
spondent advised the unit employees that it would go
"nonunion" and would, after the May 31, 1979, expira-
tion of the contract, unilaterally change their working
conditions; and (3) on or about January 18, 1979, told a
group of its unit employees that, if they wished to con-
tinue to work for Respondent, they could do so only on
its terms which, as above noted, were unlawfully im-
posed unilateral conditions. The evidence further dis-
closes that on various dates in March, April, May, No-
vember, and December, 1979, and on January 2 and 9,
1980, Respondent met with the Union, T' at the Union's
request, to see if there were some way that Respondent
could lawfully execute its obligations to bargain with the
Union and, indeed, to execute the associationwide
NECA contract. As above noted, Respondent in sub-
stance stated that it needed various economic relief, re-
lating to the five unilateral changes it was to implement
on June 1979. Respondent contends that, in these meet-
ings with the Union, it outlined the conditions and eco-
nomic concessions under which it would again recognize
the Union, bargain through NECA, and execute the
NECA agreement. Contradicting Respondent, as above
noted, the Union's witnesses contend that the five condi-
tions of economic concessions which Respondent men-
tioned, were the reasons Respondent mentioned only for
going "nonunion" rather than forming the basis on
which it would execute the agreement.
While I have resolved the above contradictory testi-
mony and found that the statements were made for both
purposes, it is clear that these meetings failed to consti-
tute good-faith bargaining commencing December 22,
1978. Respondent never altered from its December 22,
1978, declared course of withdrawing recognition from
and repudiating its legal obligation to bargain with the
Union after May 31. Whatever might be the case with
regard to minor unfair labor practices, Respondent, com-
mencing December 22, 1978, here cannot be said to have
l The General Counsel and the Union argue that all meetings after
issuance of complaint on July 2(1, 1979, are not evidence of individual
bargaining but merely of "settlement discussions," the subject matter of
which should be excluded from "bargaining." Whether this was individu-
al bargaining is not crucial but whether it was individual bargaining in
good faith is dispositixe. I find, as above noted in the text, that it was not.
In any event, these meetings were not mere settlement discussions merely
because they followed issuance of coniplaint. Moreover, with regard to
the meetings of the parties on January 2 and 9, 1980, the General Counsel
and the nioi vult suppress the nature of those discussions on the ad-
ditional ground that the Unioll had entered into such discussions only
after execution of agreements with Respondent reserving the participants'
right to claim that no individual bargaining occurred and that Respond-
ent had unsuccessfully and unlawfully withdrawn from multiemployer
bargaining (C.P. Exhs I and 2). Such agreements, however, do not cover
prior, postcomplaint discussions in November and December
bargained in good faith with the Union since its unfair
labor practices were so serious as to obliterate its statu-
tory obligations to the Union. Where, as here, Respond-
ent has repudiated the Union, terminated its employee
members, unilaterally changed 30 working conditions,
hired replacements for the unlawfully discharged em-
ployees, and then advised the Union, inter alia, that if the
Union did not accede to its demands with regard to the
five enumerated economic concessions, it would not only
not execute collective-bargaining agreement, but would
continue in its withdrawal of recognition and remain
nonunion, concurrent meetings with the Union do not
constitute good-faith bargaining. Freedman's repeated
statements that Respondent's withdrawal of union recog-
nition was not a stance embedded in concrete supports
the conclusion that he was using recognition as a bar-
gaining device as does his repeated statement that Re-
spondent would try out its nonunion status for a year
and then decide whether it would re-recognize the
Union and bargain through the Association. Thus, at
best, what Respondent succeeded in doing at these var-
ious discussion sessions with the Union, in 1979 and
1980, was to bring the Union to the "bargaining" table,
not in economic confrontation as the collective-bargain-
ing representative of its employees, but as an unlawfully
estranged supplicant. With Respondent's December 22,
1978, notice of future withdrawal of recognition already
established and outstanding, together with the anticipated
unilateral changes already made known to its employees
in January (which Respondent was to require as a condi-
tion of their further employment), Respondent cannot
come to the bargaining table prior to contract expiration
urging that it was willing to, and in fact did, bargain on
an individual basis in good faith with the Union. After
the May 31 contract expiration, with the unlawful dis-
charges and withdrawal of recognition, and unforsaken
unilateral changes in place after unlawful direct bargain-
ing with the employees, Respondent, a fortiori, cannot be
heard to say that its meetings with the Union constituted
good-faith bargaining on an individual basis. Nor can
such 1979 and 1980 meetings permit the conclusion that
Respondent, bargaining on an individual basis, impliedly
abandoned its unlawful December 1978 notice of repudi-
ation of the Union as statutory representative of unit em-
ployees. At all times in possession of the unlawful advan-
tages of such repudiation (unilateral changes, direct deal-
ing, unlawful discharges, Respondent cannot cloak its
dealings with the Union under the protective description
of "good faith bargaining." 2 If negotiations against a
background of unremedied unfair labor practices consti-
tute "an exercise in futility" where an employer merely
repudiates a collective-bargaining agreement in midterm,
Gordon L. Rayner d/b/a Bay Area Sealers, 251 NLRB
823, fn. 5 (1980), then here such negotiations, a fortiori,
are futile since Respondent repudiated the Union.
2 It is futile to suggest that any "impasse" occurred after the January
9, 1980, meeting where the Union apparently refused thereafter to meet
with Respondent to resolve their continued outstanding differences
which resolution would permit Respondent to again recognize the Union
and rejoin NECA. Any such "impasse," would not have been the result
of good-faith bargaining and therefore no good-faith "impasse" can be
held to have occurred Pillo'wtex Corporation, 241 NLRB 40 (1979).
S. FREEDMAN ELECTRIC, INC. 445
Thus, while the lawfulness of Respondent's withdraw-
al from multiemployer bargaining has been resolved, yet,
Respondent by its negotiating with the aid of serious, un-
remedied unfair labor practices was at no time after De-
cember 22, 1978, negotiating in good faith with the
Union.
By such acts and by each of them as alleged in the
complaint, Respondent, commencing December 22, 1978,
refused to bargain collectively on an individual basis in
good faith with the Union in the above-described single
employer unit and has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) of the Act. The
Walmac Co., 106 NLRB 1355 (1953), cited by Respond-
ent, is distinguishable.
CONCLUSIONS OF LAW
1. Respondent S. Freedman Electric, Co., Inc., is now
and has been at all material times, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Union, International Brotherhood of Electrical
Workers, AFL-CIO, Local 35, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All inside electrical workers employed by S. Freed-
man Electric Co., Inc., at its Hartford location, ex-
cluding guards and supervisors within the meaning
of Section 2(11) of the Act.
4. At all material times, the Union has been and is the
exclusive bargaining representative of all the employees
within the above-described appropriate unit for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. Respondent, by repudiating on December 22, 1978,
its obligation to recognize and bargain with the Union in
the above unit commencing May 31, 1979, violated Sec-
tion 8(a)(5) and (1) of the Act.
6. By announcing to employees, on or about January
18, 1979, that Respondent was going "open shop" or
"nonunion" and that the employees could either work
for Respondent after May 31, 1979, under terms and con-
ditions of employment then to be unilaterally imposed or
could cease being employed, threatened employees with
constructive discharge and told its employees it was re-
jecting its obligation to recognize and bargain with their
statutory representative thereby independently violating
Section 8(a)(l) of the Act.
7. By unilaterally changing, on or about June 1, 1979,
the existing wage rates and other terms and conditions of
employment of its employees included in the above-de-
scribed bargaining unit and by modifying the terms and
conditions of employement then enjoyed by said unit em-
ployees pursuant to the collective agreement which ex-
pired on May 31, 1979, all without notifying the Union
of its intention of doing so or affording the Union an op-
portunity to bargain on such changes, Respondent re-
fused to bargain collectively with the Union in the above
unit of employees and thereby violated Section 8(a)(5)
and (I) of the Act.
8. By attempting, on and after around January 18,
1979, to bargain directly with its employees regarding
wages, hours, and other terms and conditions of employ-
ment notwithstanding the Union's status as the collec-
tive-bargaining representative of said employees in the
above-described unit, Respondent refused to bargain col-
lectively with the Union as the collective-bargaining rep-
resentative of the employees in the said unit above de-
scribed and thereby violated Section 8(a)(5) and (1) of
the Act.
9. By on or about May 31, 1979, constructively dis-
charging employees Stanley Ingersoll, Edward Baron,
William Broughton, Anthony (Antonio) Silva, and
Donald Martorelli, Respondent violated Section 8(a)(1)
and (3) of the Act.
10. By on or about May 31, 1979, unlawfully discharg-
ing employees Andrew Sikorowicz, Louis Stosato, Fran-
cis Coleman, and Henry Robidoux, Respondent violated
Section 8(a)(1) and (3) of the Act.
11. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(2), (6). and (7) of
the Act.
THE REMEDY
In view of Respondent's commission of unfair labor
practices, I will require it, in accordance with Gordon L.
Rayner d/hb/a Bay Area Sealers, supra, to cease and desist
from further violations, to recognize and bargain in good
faith, on request, with the Union, to revoke, on the
Union's request, any or all of its unilateral changes com-
mencing June 1, 1979, in the terms and conditions of em-
ployment of its unit employees, Kal-Equip Company, 237
NLRB 1234 (1975), to make contributions into the pen-
sion and other funds, Vin James Plastering Company, 226
NLRB 125 (1976); Win. Chalson & Co., Inc.. 252 NLRB
25 (1981), and to otherwise retroactively to June 1, 1979,
continue in full force and effect all the terms and condi-
tions of the contract (except union-security and checkoff
provisions), Peerless Roofing Co., Ltd., 247 NLRB 300
(1980); Trico Products Corp., 238 NLRB 1306 (1978),
which expired on May 31, 1979, until such time that it
reaches agreement or bargains to good-faith impasse with
the Union or the Union refuses to bargain on such mat-
ters. If an understanding is reached, it shall be embodied
in a signed agreement. I shall also order that the nine dis-
charged and constructively discharged employees be of-
fered reinstatement to their former positions of employ-
ment, discharging, if necessary, other employees who
may have been hired in their places; and that they be
made whole because of the discrimination against them
for any loss of pay and other employment benefits in-
cludable as net backpay. Furthermore, I shall order that
unit employees hired on and after June 1, 1979, be made
whole as a result of Respondent failing to apply to them
the terms and conditions of the contract which expired
May 31. 1979. Ogle Protection Service, Inc., 183 NLRB
682 (1970). Interest, except with regard to amounts to be
contributed to the several Union funds, as noted below,
shall be paid in accordance with Florida Steel Corp.. 231
S. FREEDMAN ELECTRIC. INC.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 651 (1977). Thus, the terms of the expired con-
tract will be applied in futuro until such time as Re-
spondent performs its above-bargaining obligations. See,
generally, Gordon L. Rayner, et al., d/b/a Bay Area
Sealers, supra. The question of interest and other addi-
tional amounts payable into the several union trust funds
as part of this "make whole" remedy will be left to the
compliance stage of this proceeding. Merryweather Opti-
cal Co., 240 NLRB 1213 (1979). Backpay, if any, to the
discharged employees will be computed in accordance
with F: W. Woolworth Company, 90 NLRB 289 (1950),
with interest as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977). The make whole remedy to the dis-
charged employees shall not only include Respondent's
transmissions of defaulted and continuing contributions
to the Union's health and welfare, pension, apprentice-
ship, and other funds under the expired contract, but also
the reimbursement of employee contributions or losses
otherwise covered by the contractual funds and policies.
Kraft Plumbing and Heating, Inc., 252 NLRB 891 (1981).
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I issue the
following:
ORDER' 3
The Respondent, S. Freedman Electric, Inc., Hartford,
Connecticut, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively,
upon request, concerning rates of pay, wages, hours, and
other terms and conditions of employment with Interna-
tional Brotherhood of Electrical Workers, AFI,-CIO,
Local 35, herein called the Union, as the exclusive bar-
gaining representative for employees in the following ap-
propriate unit:
All inside electrical workers employed by S. Freed-
man Electric, Inc., at its Hartford, Connecticut lo-
cation but excluding guards and supervisors within
the meaning of Section 2(11) of the Act.
(b) Discouraging membership in, activity on behalf of,
or support for, the Union by discharging or constructive-
ly discharging employees, or otherwise discriminating in
any manner with respect to their wages, hours, tenure of
employment, or any other term or condition of employ-
ment.
(c) Announcing to employees covered by a collective-
bargaining agreement that it is going "nonunion" or
"open shop" or informing employees, prior to good-faith
impasse with the Union, that they can either work under
Respondent's unilaterally imposed conditions of employ-
ment or they can cease working for Respondent.
':' In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulatils of the National Labor Relations Board the
findings, cotclusions, anId recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted hy the Hoard and
become its findings. conclusiolns anld Order, and all objections thereto
shall be deelmed waived for all purposes
(d) Failing or refusing to make payments to the
Union's health, welfare and pension, and other trust
funds as required by the collective-bargaining agreement
which expired on or about May 31, 1979.
(e) Unilaterally altering for unit employees any of the
terms and conditions of employment which are specified
in the collective-bargaining agreement which expired on
May 31, 1979, covering such employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with the
above-named labor organization as the exclusive repre-
sentative of all the employees in the above appropriate
unit with the respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Upon the Union's request, revoke any or all unilat-
eral changes made effective by Respondent on and after
June 1, 1979, with regard to the wages, hours, and terms
and conditions of employment of all employees in the ap-
propriate unit described above.
(c) Give retroactive effect, commencing June 1, 1979,
to all the terms and conditions of the collective-bargain-
ing agreement which expired May 31, 1979, until such
time that Respondent and the Union reach good-faith im-
passe, execute a collective-bargaining agreement, or the
Union refuses to bargain in good faith with respect to
such matters.
(d) Offer to employees Stanley Ingersoll, Edward
Baron, William Broughton, Anthony (Antonio) Silva,
Donald Martorelli, Andrew Sikorowicz, Louis Stosato,
Francis Coleman, and Henry Robidoux immediate and
full reinstatement to their respective former positions of
employment, without loss of seniority or privileges, dis-
charging, if necessary, other employees who may have
been hired or assigned to perform their functions; or, if
their former respective positions do not exist, to substan-
tially equivalent positions without prejudice to their se-
niority or other rights and privileges.
(e) Make whole the employees specified in paragraph
2(d), above, and all unit employees hired on or after June
1, 1979, for any losses of pay each may have suffered,
respectively, either as a result of the discrimination
against each of them or because of Respondent's failure
to apply to them the terms of the collective-bargaining
agreement which expired on May 31, 1979, in the
manner set forth above in the section entitled "The
Remedy." No part of the Order herein shall be construed
as forcing or requiring Respondent to subtract or with-
draw any benefit or benefits heretofore granted to unit
employees commencing June 1, 1979.
(f) Pay to the appropriate trust funds the contributions
required by the agreement which expired May 31, 1979,
to the extent that such contributions have not been made
or that the employees have not otherwise been made
whole for their ensuing medical and other expenses, and
continue such payments until Respondent negotiates in
S. FREEDMAN ELECTRIC, INC. 447
good faith with the Union to an agreement, or to good-
faith impasse or until the Union refuses to bargain.
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, work schedules, production reports and
data, social security payment records, timecards, person-
nel records and reports and all other records and entries
necessary to determine Respondent's compliance with
this Order and the amount of backpay and other sums
and benefits due under the terms of this Order.
(h) Post at its place of business in Hartford, Connecti-
cut, copies of the attached notice marked "Appendix."'4
Copies on forms provided by the Officer-in-Charge of
Subregion 39, shall, after being duly signed by Respond-
ent's representative, be posted by it immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(i) Notify the Officer-in-Charge of Subregion 39, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
14 In the event that this Order is enforced by a Judgment o a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found that S. Freedman Electric, Inc., has
violated the National Labor Relations Act and has or-
dered us to post this notice. We therefore notify you
that:
WE WILL NOT refuse to recognize and bargain
collectively, upon request, concerning rates of pay,
wages, hours, and other terms and conditions of em-
ployment with International Brotherhood of Elec-
trical Workers, AFL-CIO, Local 35, herein called
the Union, as the exclusive bargaining representa-
tive for our employees in the following appropriate
unit:
All inside workers employed by us at our Hart-
ford, Connecticut location, but excluding guards
and supervisors within the meaning of Section
2(11) of the Act.
WE WILL NOT discourage membership in, activity
on behalf of, or support for, the Union by discharg-
ing or constructively discharging employees, or oth-
erwise discriminating in any manner with the re-
spect to their wages, hours, tenure of employment
or any other terms and conditions of employment.
WE WILL NOT announce to our employees cov-
ered by a collective-bargaining agreement that we
are going "nonunion" or "open shop" or inform
employees, prior to good-faith impasse with the
Union, that they can either work under Respond-
ent's unilaterally imposed conditions of employment
or they can cease working for Respondent.
WE WILL NOT fail or refuse to make payments to
the Union's health, welfare and pension and other
trust funds as required by the collective-bargaining
agreement which expired on or about May 31, 1979.
WE WILL NOT unilaterally alter for our unit em-
ployees any of the terms and conditions of employ-
ment which are specified in the collective-bargain-
ing agreement which expired on May 31, 1979, cov-
ering such employees.
WE WILI. NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL recognize and, upon request, bargain
with the above-named labor organization as the ex-
clusive representative of all the employees in the
above appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agreement.
WE WILL. upon the Union's request, revoke any
or all unilateral changes made effective by us on
and after June 1, 1979, with regard to the wages,
hours, and terms and conditions of employment of
all employees in the above-described unit.
WE WILl give retroactive effect, commencing
June 1, 1979, to all the terms and conditions of the
collective-bargaining agreement which expired May
31, 1979, until such time that we and the Union ex-
ecute a signed contract or reach good-faith impasse
or the Union refuses to bargain in good faith.
WE WII.L offer to our employees Stanley Inger-
soll, Edward Baron, William Broughton, Anthony
Silva, Donald Martorelli, Andrew Sikorowicz,
Louis Stosato, Francis Coleman, and Henry Robi-
doux immediate and full reinstatement to their re-
spective former positions of employment without
loss of seniority or privileges, discharging if neces-
sary other employees who may have been hired or
assigned to perform their functions; or, if their
former respective positions do not exist, to substan-
tially equivalent positions without prejudice to their
seniority or other rights and privileges.
WEI WILl make whole the employees specified in
the above paragraph and all unit employees hired
on or after June 1, 1979, for any losses of pay each
may have suffered, respectively, either as a result of
the discrimination against them or because of our
failure to apply to them the terms of the collective-
bargaining agreement which expired on May 31,
1979. No part of the Board's order herein shall be
construed as forcing or requiring us to subtract or
S. FREEDMAN ELECTRIC, INC.
_, _
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdraw any benefit of benefits heretofore granted
to unit employees commencing June 1, 1979.
WE WILL pay to the appropriate union trust
funds the contributions required by the agreement
that expired May 31, 1979, to the extent that such
contributions have not been made or that the em-
ployees had not otherwise been made whole for
their ensuing medical and other expenses, and con-
tinue such payments until we negotiate in good faith
with the Union to an agreement or to good-faith
impasse or until the Union refuses to bargain.
S. FREEDMAN ELECTRIC, INC.