McCormick Electrical Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 418 (N.L.R.B. 1979)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCormick Electrical Construction Co., Inc. and Lo-
cal Union No. 683, International Brotherhood of
Electrical Workers, AFL-CIO. Case 9-CA-I 1127
January 29, 1979
DECISION AND ORDER
By MEMBERS JNKINS, MURPHY, ANI) TRUESDAIE
On June 22, 1978, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in response to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
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, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order as modified
herein.3
AMENDEID CON(Ci.SIONS OF LAW
Insert the following as paragraph 7 and renumber
subsequent paragraphs accordingly:
"7. By bargaining directly and individually with
any employees in the aforesaid appropriate unit, Re-
spondent has violated Section 8(a)(5) and (1) of the
Act."
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, as modified
below, and hereby orders that the Respondent, Mc-
Cormick Electrical Construction Co., Inc., Colum-
bus, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph I(a):
"(a) Failing or refusing to give full effect to and to
comply.fully with 1976--78 residential and commer-
cial wiring agreements between the Columbus Divi-
sion, Central Ohio Chapter, National Electrical Con-
tractors Association, Inc., and ocal Union No. 683,
International Brotherhood of Electrical Workers,
AFL CIO, effective June 1, 1976, to :lay 31, 1978,
according to its tenure and effect with respect to the
employees in the unit set forth below:
240 NLRB No. 60
"All employees at our Columbus. Ohio, facilit
performing electrical work, excluding all other
employees. guards, and supervisors as defined in
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Respondent has excepted to certain credibility findings made bh the
Administrative l.aw Judge. It is the Board's established policy not to over-
rule an Administrative l.aw Judge's resolutions ith respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are mncorreel Standaird D)ry all Produets. In(. 91
NLRB 544 (1950}. enfd. 188 F.2d 362 3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
In adopting the Decision of the Administrative L.aw Judge, we do not
affirmi his finding that Respondent iolated Sec. 8(a)(5) of the Act by its
untinlel withdrawal from the multremployer bargaining unit. Although the
Administrative aw Judge correctl nted that the withdrawal was untime-
ly. that would not, in and of itself. be a violation of the Act. Ringside
I.iquoir, Inc d h a Dino'. Lounge and (as.ell & Friedman. Inc.. d, b 'a King
ol ( lubs, 237 NLRB 30 (1)78). Rather, as found by the Administrative Law
Judge. Respondent's conduct in withdrawing recognition from the Union
and thereafter changing wage rates, employee benefits. and oither conditions
of employment, as well as attempting to bypass the nion and bargain
directly with the employees individually, constitutes its violations of Sec.
8(a)(5) of the Act.
'As noted, the Administrative Law Judge found that Respondent vio-
lated Sec. 8(a5s) and (I) of the Act by bypassing the Union and attempting
to bargain directly with the employees individually. However, the Adminis-
tr.tive L.aw Judge inadvertently failed In his D)ecision to provide for a con-
clusionl of law corresponding to that finding. e have therefore modified
the conclusions of law accordingly.
We shall modify the recommended Order of the Administrative Law
Judge by specifically descnhbing the appropriate unit in the Order itself.
[he Administrative Law Judge. also in the first paragraph of his proposed
notice, includes language which requires Respondent to stop questioning
emploiyees about their union activities. Inasmuch as there was no allegation
in the complaint or finding to this effect, we shall correct the notice by
deleting this paragraph.
APPENDIX
No I( 10ro EMPLOYEES
POSTED BY ORDER OF TI.Et
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE Wilt. N refuse to give full effect to and to
comply fully with both the residential and con-
struction (inside) agreements between Local
Union No. 683, International Brotherhood of
Electrical Workers, AFL-CIO, and Columbus
Division, Central Ohio Chapter, National Elec-
trical Contractors Association, Inc., both agree-
ments being effective June 1, 1976, until May 31,
1978.
WE Wii.i. Ni refuse, upon request, to bargain
collectively with the aforesaid labor union as the
exclusive collective-bargaining representative of
our employees in the following unit:
All employees employed at our Columbus,
McCORMICK ELECTRICAL CONSTRUCTION 419
Ohio, facility performing electrical work. ex-
cluding all other employees, guards, and sup-
ervisors as defined in the Act.
WI, Wii. NI unilaterall' change any of the
wages or other terms and conditions of employ-
ment of our employees in the aforesaid unit
without consulting beforehand with the above-
named Union as the exclusive collective-bar-
gaining representative of our employees.
WE WILt. NOI bargain directly and individually
with any of our employees in the aforesaid unit.
but will, as noted above, consult with the above
Union with regard to any changes in wages or
other terms and conditions of employment of
our employees.
WE Wl I NI coerce or restrain our employees
who are in the above-described unit by telling
them that they can work for us only if they agree
to work under the terms and conditions of em-
ployment which we establish by ourselves with-
out consultation with the Union, rather than un-
der the terms and conditions established by the
aforesaid contracts between the NECA and the
Union of our employees as aforesaid.
WE WI. Nor discharge our employees or
otherwise unlawfully discriminate in regard to
their wages or other terms and conditions of em-
ployment because the\ reamin members of the
aforesaid Union or any other union or because
they insist upon our complying fully with the
terms and conditions of employment as set forth
in the aforesaid collective-bargaining agree-
ments between NECA, Columbus Ohio Chap-
ter, and the aforesaid Union.
WE Wi.l NOE in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representative of
their own choosing. and to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed
by Section 7 of the Act, or to refrain from an. or
all such activities except as provided in any col-
lective-bargaining agreement between ourselves
and any labor organization of our employees'
choosing as provided by the National Labor Re-
lations Act.
WE WILL, upon request, recognize and bargain
collectively with the above-named labor organi-
zation, Local Union No. 683, International
Brotherhood of Electrical Workers, AFL-CIO.
as the exclusive collective-bargaining represen-
tative of our employees in the appropriate unit
set forth above. with respect to rates of pay.
wages, hours of work, aind other terms and con-
ditions of employment.
WtI wulit restore and place in effect all terms
and conditions of employment provided b the
1976 78 residential and construction wiring
agreement between the Central Ohio Chapter of
NECA and the said Local ULwnion No. 683.
WtI wnii make such deduction for any pen-
sions. welfare, or other payments on behalf of
our employees for whom such contributions
were made before we discontinued making the
same on or about February 18. 1977.
Wl Will offer Jack 1). Anderson, Steven
DeLong. L. Patrick Rockhold, William F.
Golden, Daniel Laemmle, Ralph Lowell Jordan,
Joseph H. Fenneken. Alfred Trent, and Scott
Strale full and unconditional reinstatement to
their former positions. or. if those jobs no longer
exist. to substantially equiMalent positions. with-
out prejudice to their seniorit or other rights or
privileges previously enjoxed. and make each of
them whole for any loss of wages suffered by
reason of our unlawful conduct in discharging
them, plus interest.
All our employees are free to become or remain or
refrain from becoming or remaining members of Lo-
cal Union No. 683. International Brotherhood of
Electrical Workers. AFL CIO. or any other labor or-
ganization of their choosing.
M(CoRMI( K E(c IRI A CONSI RI (I ION Co.,
INc(
DECISION
STAIEMENI O()F THF CASE
MRIOoN D FRIED.MAN. Administrative Law Judge: This
case was heard at Columbus. Ohio. upon a complaint is-
sued on April 28. 1977, which complaint is based upon a
charge filed on March 3, 1977, by Local Union No. 683.
International Brotherhood of Electrical Workers. AFL
CIO, herein called the Union or the Charging Part'. The
complaint alleges that McCormick Electrical Construction
Co.. Inc.. herein called the Respondent or the Compan.
has violated and is violating Section 8(a)(1). 13). and (5) of
the National Labor Relations Act, as amended. herein
called the Act. While admitting the jurisdictional allega-
tions of the complaint, the Respondent. in its duly filed
answer. denies the commission of any unfair labor prac-
tices.
All parties were represented at the hearing and were gis-
en full opportunity to he heard and to present evidence.
Thereafter. bnefs were filed b counsel for the General
Counsel and the Respondent.
Upon the entire record and the briefs of the parties. and
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon my observation of the witnesses, I make the follow-
ing:
FINDIN(iS OF FAI
I TIlE BUSINESS OF IHE RESPONDENT
Respondent, an Ohio corporation, is engaged in the elec-
trical contracting business in and around Columbus, Ohio.
During the 12-month period immediately preceding the is-
suance of the complaint herein, a representative period,
Respondent performed services of a value in excess of
$50,000, for various nonretail enterprises, each of which, in
turn, had a direct inflow of products in interstate com-
merce valued in excess of $50,000, comprised of material
purchased and caused to be shipped outside the State of
Ohio directly to their respective facilities in Ohio.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of the
Act.
II. IE LABOR OR;ANIZATION INVOLVE[)
It is admitted, and I find, that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III I HI I NI AIR L.ABOR PRA(II('S
A. Background and Issues
For approximately 18 years before the events presented
herein, the Respondent was a member of Central Ohio
Chapter, herein called the chapter, of the National Electric
Contractors Association, herein called NECA. During the
term of the 1976-78 agreements between the chapter and
the Union for both the residential and commercial or in-
side construction, the Respondent, on February 17, 1977,
resigned from NECA for reasons set forth herein, and al-
legedly discharged its employees who remained loyal to the
Union after allegedly telling employees that the Respon-
dent had ceased recognizing the Union as the employees'
bargaining representative.
The Respondent contends that its resignation from
NECA was lawful because Respondent was not bound by
the said agreement because the agreement was not the
agreement reached in negotiations; that Respondent did
not tell its employees that it no longer recognized the
Union as their bargaining representative; and, further-
more, that the allegedly unlawfully discharged employees
quit their employment or were, in some cases, laid off for
lawful economic reasons or, in one instance, because the
employee could no longer physically perform the work.
Thus, the issues are:
I. Whether the Respondent was bound by the aforesaid
collective-bargaining agreements
2. Whether the Respondent unlawfully discharged cer-
tain named employees because of their retention of union
membership.
3. Whether the Respondent unilaterally changed the
terms and conditions of employment to discourage union
membership.
4. Whether by doing these and other acts Respondent
refused to bargain in good faith with the Union.
B. The Facts
As above noted, the Respondent is engaged in electrical
installation for both residential and commercial properties.
It has been the practice of the chapter to negotiate separate
agreements with the Union for each type of construction;
such agreements are known as the residential agreement
and the construction (inside) agreement. Denver McCor-
mick, Respondent's president, engaged in negotiations with
the Union as a member of the chapter's negotiating team
for a period of about 5 years preceding the events pre-
sented herein. McCormick, on behalf of the Respondent.
in February 1975, executed a "Letter of Assent-A" desig-
nating the chapter as its agent for negotiating with the
Union for each of the two types of electrical wiring con-
tracts. The said assents were identical except for the words
"residential" and "inside" and gave consent to the chapter
to act as Respondent's collective-bargaining agent ". . .
for all matters contained in or pertaining to the current
approved residential [or inside] labor agreement between
the Columbus Division, Central Ohio Chapter, NECA and
Local Union 683, IBEW. This authorization, in compliance
with the current approved labor agreement shall become
effective on the February 14, 1975. It shall remain in effect
until terminated by the undersigned employer giving writ-
ten notice to the Columbus Division, Central Ohio Chap-
ter, NECA, and to the Local Union at least 150 days prior
to the then current anniversary date of the aforesaid ap-
proved labor agreement."
The Respondent did not execute any new letters of as-
sent with regard to the renewal of the 1975-76 agreements
which renewal was dated June 1, 1976. effective on that
date until May 31, 1978.
The so-called inside agreement, effective June 1, 1975,
negotiated and executed subsequent to the filing of the as-
sents, as above, contained a clause providing for a "small
commercial rate" of wages to be paid employees of the
Respondent and other members of the chapter who signed
assents; the clause read as follows:
Section 4(b).' On all inside commercial construction
jobs of less than 2500 man hours, the minimum rate of
wages shall be $6.50 per hour effective June 4, 1975
and effective December 1, 1975 rate of wage shall be
$6.90 per hour.
According to Denver McCormick, whom I credit in this
respect, this clause gave small contractors like the Respon-
dent an advantage of paying the same rate for inside com-
mercial wages as for residential wage rates. This economic
advantage was most essential to the contracting chapter
members who were in the same position as was the Re-
spondent in competing successfully against nonunion em-
ployers.
In May 1976, the chapter and the Union entered into
negotiations with separate teams of negotiators for a new
residential agreement to be effective June 1, 1976, and a
new commercial or inside agreement to be effective on the
same date. Included in the negotiating team for the resi-
dential contract were Herman Jeschke, at that time assis-
McCORMICK ELECTRICAL CONSTRUCTION 421
tant secretary and manager of the chapter; Donald Little,
president of another electrical contractor, Eastmoor Elec-
tric Company; and Denver McCormick of the Respon-
dent. For the Union, the negotiating team for the residen-
tial agreement was comprised of Lawrence Burns, business
manager and financial secretary of the Union; and mem-
bers Fitzpatrick, DeLong, and Jordan. At that time, Jordan
and DeLong were employees of the Respondent. The nego-
tiating parties for the inside or construction commercial
contract were Burns, again for the Union, together with
other union members; for the chapter were A. H. Moore.
at that time the chapter manager, now deceased, and repre-
sentatives of other electrical contractor members of the
chapter. A number of items remained undecided until the
deadline date for the completion of the negotiations.
Among these items was the small commercial rate clause,
cited above, which had been included in the 1975-76 inside
agreement, but which the Union refused to consent to dur-
ing the 1976 negotiations. In order to expedite and facili-
tate the execution of the new agreement, the negotiators for
the inside agreement agreed to submit some of the disputed
matters to NECA headquarters in Washington, D.C., to be
dealt with through the International of the Union and to
delete the small commercial rate clause from the new
agreement. However, there was an understanding that the
parties would at least sit down and talk about the matter
and perhaps come to some agreement on it after the basic
agreements were executed.' In any event, when the parties
did engage in two sessions in July, at the insistence of Den-
ver McCormick and after the new agreements went into
effect, the union representatives and the NECA representa-
tives were unable to agree on the insertion of the clause.
According to Jeschke, whom I credit, the new national
agreement with which the inside agreement conformed in
most respects, provided for a way out for the members of
the chapter. This device was to use more apprentices on the
inside work, which would in turn reduce costs and enable
the chapter members to compete with nonunion employers
in the field.
Thus the matter stood until February 1977, some 8
months after the execution of both the residential and in-
side agreements. During the entire period from the date of
the execution of the agreements until approximately Feb-
ruary 17, 1977, the Respondent adhered strictly to the
terms of the residential agreement. However, with regard
to the 1976-78 inside or commerical construction contract,
on commercial work obtained during the period from the
execution of the agreements until the time the Respondent
resigned or attempted to resign from the chapter and the
NECA, the Respondent continued to pay the small com-
mercial rate as contained in the 1975-76 agreement.
According to Denver McCormick, he did not believe
Although Denver McCormick testified that Mr Moore and Burns
agreed that the agreements would be submitted without the small commer-
cial clause to NECA headquarters n Washington. D.C., they agreed that
"something would he worked out later" Jeschke testified that all that was
agreed to by the parties with regard to the small commercial clause was thai
theN would later sit down and see if ometlhing could he done about it
However. Jeschke emphaslted that no specific promises were made that the
clause would ultimatel be inserted n the agreement or be made a supple-
ment thereto.
that the Respondent was bound by the 1976 commercial
agreement.2 McCormick testified, additionally, that he had
to pay this small commercial rate in order to prevent the
Respondent from going bankrupt because of the competi-
tion from outside contractors (evidently referring to non-
union electrical contractors).
By letter dated February 17, 1977, the Respondent, by
Denver McCormick, notified NECA, the chapter, and the
Union, of the Respondent's immediate withdrawal from
NECA and the chapter. On Friday, February 18, Respon-
dent attached copies of the resignation letter to his employ-
ees' paychecks.
In the afternoon of February 18, 1977, employee Jack D.
Anderson was handed a paycheck to which was attached
the letter of resignation, as stated above. While he was
reading the letter, Anderson was told by McCormick, in
the presence of employee Steven DeLong and others, that
they would have to make a decision as to whether they
wanted to be represented by the Union or continue work-
ing for the Respondent. When this group of employees left
the Respondent's office after receiving their checks and
copies of the letter, employee Daniel Laemmle called the
union hall and was instructed by the Union that the em-
ployees should continue working for the Respondent as
long as they were sent out on jobs. Laemmle was informed
by the union representative to whom he spoke that, after
all, the Union dispatched members for employment by
non-NECA members with whom the Union had contractu-
al relationships and there was no reason at that time for the
men not to continue working for the Respondent.
On February 21. Jack Ward, Respondent's shop superin-
tendent, had a conversation with employee Anderson at a
jobsite. Ward asked Anderson what the latter thought
about the nonunion and union situation. Anderson re-
sponded to the effect that he wished that these things were
not happening. Ward responded by saying that as of that
day, February 21, the Company was nonunion. Ward fur-
ther told Anderson that there was no insurance program in
the Respondent's shop as of that time but that there would
be in the future, at a cost of 50 percent to the employees
and 50 percent to the Company. He further informed An-
derson that the latter should seriously think the matter over
before he decided what to do.
Anderson worked for the balance of that week and re-
ported for work as usual on February 28. When he entered
the shop, he saw an individual whom he presumed was a
nonunion employee. Anderson informed Ward, who was
about to give him an assignment, that Anderson would
have to call the union hall before he went to work. Ward
thereupon took back the work orders and went into the
office to talk to Denver McCormick. Ward returned a few
minutes later and asked Anderson if the latter's timecards
were filled out for the week. When Anderson answered in
the affirmative, he and Ward reviewed the cards and Ward
then took the cards into the office. Anderson waited and in
t lhere was much confusion n the testimon with regard to these mai-
ters IHowever, the best that can be gleaned from the reading of Mc-
(ormick
'
, esli non. boith as an adverse itness anil in r espone to hil own
counsel's questions, t would seem, and I find, that the Respondent adhered
to all of the terms of both agreements except fr the rate paid on the small
commercial jobs
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about half an hour, Denver McCormick brought a check
out to Anderson with a layoff slip. The two shook hands
and Anderson went home. He has not been recalled since
that date.
Employee Steven DeLong had a similar experience. On
February 18, when he was handed the resignation letter
along with his check, Denver McCormick said to him "I
am no longer associated with NECA or Local Union 683."
Other employees were present in the office at the time, and
Ralph Jordan another employee, asked Denver McCor-
mick what the letter meant. McCormick answered that he
could not have dealings with the employees because they
were associated with Local 683; if they wanted more de-
tails they should return the following Monday, February
21, ready to go to work, at which time McCormick would
explain further.
After giving up his master key and taking his personal
belongings, DeLong proceeded immediately to the union
hall where Lawrence Burns told him that all the letter
meant was that the Respondent was no longer a member of
NECA but that the Union allowed its members to work for
non-NECA contractors. According to these instructions,
and what Laemmle had been told on Friday afternoon, all
of the employees involved reported for work at the usual
time on Monday, February 21. Denver McCormick ap-
peared to be surprised at their presence, and as DeLong
and others walked into the shop stated, "Oh, I see you
decided to stay with me." DeLong answered "No, the
union hall sent us." To this remark, McCormick rejoined
"I haven't changed my mind, I am still a nonunion con-
tractor and I want it to work."
Nonetheless, DeLong worked for the rest of the week
except for February 25, when he was absent due to a
sprained ankle. On February 28, DeLong reported to work
and asked Denver McCormick where his assignment was
to be. McCormick answered, "Steve, I'm sorry, but I have
to lay you off." When DeLong asked the reason, McCor-
mick answered that he could no longer afford DeLong if
the latter "stuck with the Union-with the wages and bene-
fits and all." McCormick then handed DeLong a pink lay-
off slip.
Like the two above-named employees, Patrick Rockhold
received a copy of the resignation from NECA along with
his paycheck on February 18. He read the letter and asked
Denver McCormick what the meaning of it was. McCor-
mick stated that the Respondent was no longer a member
of NECA. At that point, a number of other employees,
including Steven DeLong, entered the room, and Rockhold
heard DeLong ask McCormick the same question and the
reply was that McCormick was no longer associated with
and would have no further dealings with the Union or
NECA. Although, as in the other cases, Rockhold handed
in his master key to Ward when he left on Friday, the key
was returned to him by Ward on February 21 when he
reported to work as per the instructions of the Union.
On February 25, when Rockhold returned to the shop
after his day's work, he was told by Ward to return any
company tools and to turn in his master key. He was then
handed his check and a layoff slip. When he tried to dis-
cuss with Ward exactly what was happening, Ward gave
him no answer except that the Respondent did not have
enough work to keep the men busy.
It should be noted that neither Rockhold nor any of the
other employees, heretofore or hereafter mentioned, asked
to be laid off.
Among the employees who received the resignation let-
ter with the paycheck on February 18 was employee Wil-
liam F. Golden. Like the other employees he heard some-
one (although he could not identify the individual) ask
what the letter was all about. Denver McCormick stated
that the Respondent was dropping out of NECA and the
Union. Golden was asked by McCormick what he was
going to do. He told McCormick that he would need time
to think it over, at least until Monday or Tuesday of the
following week. Golden also received instructions by the
Union, as did the others, to report to work on the following
Monday. He conformed with these instructions and report-
ed to work on Monday. He was asked by McCormick if he
was there to work. Golden answered in the affirmative.
Golden thereafter worked the entire week and reported to
work on February 28.
On February 28, as he reported to work, Golden was
asked by Denver McCormick if he was going to stay with
McCormick or go with the Union. Golden answered that
he was going to stay with the local. Then Denver McCor-
mick stated, "Well, I'll get your check." No other state-
ments were made at that time by either McCormick or
Golden.
As heretofore noted, Daniel Laemmle was one of the
individuals who came into the office on February 18. He
was the individual who called the Union and was told to
remain at work. Although he was not in the room at the
same time as DeLong and some of the others when he was
handed his paycheck with the letter attached, McCormick
told Laemmle that if he wanted another check Laemmle
would have to stay with McCormick. This evidently meant
that he could not remain a member of the Union. This
information caused Laemmle to call the union hall and to
receive the instruction to report to work the following
Monday, February 21.
Laemmle reported to work in accordance with the
Union's instructions on February 21 and worked the entire
week. When he reported to work on February 28, Jack
Ward handed him a layoff slip together with a check. Ward
did not make any explanatory statement at the time.
Ralph L. Jordan, another electrician, had an experience
similar to those of the others. On the morning of February
18, he was told by Denver McCormick to return to the
shop early. When Jordan did so, McCormick gave him the
NECA resignation letter with his check. When Jordan
asked what it was about, he was told "just what it said." He
then turned in his master keys when requested by Ward.
However, like the others, at the Union's instructions he
returned to work on February 21 and was given back his
master key.
On February 25, Jordan called the office in need of in-
struction and spoke to Denver McCormick. McCormick
asked him what he was going to do, referring to the choice
between the Union or working at the Respondent's facility.
Jordan replied he could not make up his mind whether to
drop out of the Union or stay with the Respondent. He
further informed McCormick that he would talk the matter
over with his wife. However, later in the day when Ward
McCORMICK ELECTRICAL CONSTRUCTION 423
brought his check out to him at the jobsite, Jordan was
asked by Ward what he was going to do, whether Jordan
was going to drop out of the Union or stay with the Re-
spondent. Jordan answered Ward just as he had answered
McCormick earlier in the day, to the effect that he did not
know.
Unlike the others, Jordan did not report to the office on
February 28 but reported directly to his assigned jobsite.
Ward came out to the jobsite, presumably to give instruc-
tions, and told Jordan to report to the shop Tuesday morn-
ing. When Jordan, following Ward's instructions, reported
to the Respondent's shop on Tuesday morning, he saw an
electrician whom Jordan knew was not a member of the
Union. At that time, Ward asked Jordan if the latter was
going to remain represented by the Union or remain with
the Respondent. Jordan answered that he would be repre-
sented by the Union. To this Ward replied that Jordan
"was not working there anymore." At this point Jordan
gave Ward his keys. A few minutes later, Denver McCor-
mick appeared and asked him what had happened. When
Jordan told McCormick what had occurred McCormick
told Jordan that he would get Jordan his check.
It should be noted, in connection with the questioning of
Jordan by Ward, that Ward asked Jordan on at least three
occasions what the latter was going to do with regard to the
choice given Jordan by the Respondent.
Another involved employee was Joseph H. Fenneken.
Fenneken walked into McCormick's office along with Jor-
dan and some other employees on February 18. Fenneken,
like Jordan, was told that the letter was self-explanatory.
He was asked by Ward to turn in his keys after receiving
the resignation letter and his check from Denver McCor-
mick. Fenneken did so, but on the next workday, February
21, he reported to the shop and was permitted to work.
On February 23, Ward engaged Fenneken in a conversa-
tion in the parking lot of the Respondent's facility. Ward
asked Fenneken what the latter was planning on doing.
Fenneken replied that he did not know inasmuch as 10
years of experience was rather hard to throw away.
On February 25, Fenneken worked the entire day and at
the end of the day reported back to the shop. At that time,
Ward gave Fenneken his final check and a pink layoff slip.
At that point, Fenneken handed Ward the master key and
left the shop. Before leaving, Fenneken asked Ward who
else had been laid off. Ward stated that he did not know.
Employee Alfred Trent, who had been employed by the
Respondent for approximately 15 years, had been placed
on sick leave for surgery on July 12, 1976. On February 28,
1977, after his release by his doctor, Trent went to the
Respondent's shop where Ward gave him an assignment
slip to wire a house. Trent worked all day on February 28
and on the following day. On March 1, the Respondent
sent a nonunion man, Skip Hipsley, to work with Fennek-
en at the jobsite. At that point, Fenneken called the union
hall and was told to proceed to work.
On March 2 when Trent reported to work, he was asked
by Ward if he was "going to work for the Company or was
I going with the Union." Trent answered that he wanted
the Union. Ward then sent Trent to see Denver McCor-
mick in the latter's office. Trent told McCormick that he
wanted the Union to represent him. In answer to this. Den-
ver McCormick asked Trent, "When did I want to go?"
Before this question, however, the two had a short conver-
sation in which Trent explained to McCormick the benefits
offered through the Union, including retirement. McCor-
mick told Trent that if he stayed there would be no pay
cuts. However, when Trent stated that he elected to stay
with the Union, Denver McCormick gave Trent his pay-
check and a layoff slip.
Scott Straley was a relatively new employee, having
come to the Respondent's employ on June I. 1976. Like all
of the others. StraleN was a union member who had gained
his employment with the Respondent by being referred
from the union hiring hall. At first, Straley was a trainee,
but shortly before his discharge was promoted to a residen-
tial wireman. Straley had no conversations after February
18, 1977, when he received the above-mentioned copy of
the resignation letter along with his paycheck. However, he
worked the entire following week. On February 28, how-
ever, Straley was handed a pink slip and laid off by Denver
McCormick. All McCormick told him at that time was sor-
ry but that he had to do it. 3
C. Divcussion and Conclu.sions
Respondent's contentions regarding the issue as to
whether Respondent was bound by the 1976 residential
and inside agreements would seem to rest upon two main
arguments. The first argument is that inasmuch as the
Respondent's president. Denver McCormick, insisted that
the small commercial rate clause contained in the 1975 76
inside agreement be included in the 1976-78 agreement
and was promised that something would he done about it
by the then manager, A. H. Moore, now deceased, the Re-
spondent was not bound because the clause was not incor-
porated in the agreement. Thus. Respondent argues, the
All of the above concerning the reslgnition letters. the consersations
hetween the arious emplohees. Denver MlcCormick, and Jack Ward. and
the ultimate separations from employment were testified to hs the above-
named employees. Their testimony is asically credited. Although there
would seem to be some discrepancy between the testimiln of those emplo)-
ees who were told bh Denvser McCormick, upon receipt of the letter, that
thes had to choose between the kUnion and the Respondent and employees
Fenneken. Trent. and Strales. who were not told, is explained h careful
scrutiny of the record: the latter three employees were not in McCormick's
office at the same time as the others. Accordingly. the conversations and
descriptions of what occurred in the office on Fehruary IS differed. his
difference is explained by the difference time in which the arious em-
ploees were n D)enser McCormick's office. In addition, although Ward
was still working for the Respondent at the date of the hearing, he was not
called to testif b the Respondent. Inasmuch as his testimony would have
been crucial to the Respondent's contentions as hereinafter set forth, that
the Respondent did not discriminatorily discharge ant of these ndliduals
or question them concerning their choices. Respondent's failure to call
Ward would seem to indicate that Ward's testimony would have been unfa-
vorable to the Respondent. Thus, although all of the employees involved
testified In somewhat the same ein with regard to the Respondent's attl-
tudes and statements made by Ward and b, Denver McCornlick, Mc-
Cormick's testimont in this regard stands unsupported bh the testimons of
any of the Respondent's witnesses. Accordingly, upon this basis and upon
my observation of these individuals, I credit the estimon, of the employees
and do not credit McCormick's explanation of the discharges. In the main.
his testimons consisted of denials of mlan of the statements ascribed to him
and of the assertion that when the letter informed employees that Respon-
dent ua, resigning from NF(A they quit their ohs.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition precedent to the Respondent's acceptance of the
agreement was never fulfilled.
The second argument is almost similar in vein but based
upon another facet of contract law. Respondent maintains
that inasmuch as McCormick desired the insertion of the
clause for small commercial rates and the chapter represen-
tatives and the Union did not reach this matter in their
discussions and the agreement was drafted and executed
without the insertion of the clause requested by the Re-
spondent, there was no meeting of the minds and, there-
fore, no binding agreement.
I find no merit in either argument. The agreements were
drawn up and executed between the Union and the chapter
representatives for the benefit of all of the union and chap-
ter members. The fact that one member of the chapter, the
Respondent herein, was not satisfied with this agreement
as executed, and considered the deletion of the clause an
economic hardship, did not relieve the Respondent, as a
member of a multiemployer bargaining association, from
its obligation to honor the agreements negotiated and exe-
cuted. Therefore, whether the Respondent considered the
insertion of the clause in question as a condition precedent
or as an item necessary to arrive at a meeting of the minds
is completely inapplicable to the situation presented. A
careful search of the 1975 76 and the 1976 agreements re-
veals that they contained no requirement that all of the
members of the chapter give their consent to the agree-
ment, or to execute the same, in order to make the agree-
ment binding upon them.
We then come to the final contention of the Respondent
to the effect that the assents signed by the Respondent
were for the 1975 76 agreements only and, therefore, the
Respondent was not bound by any agreement executed
thereafter, or by any extension of the 1975 1976 agree-
ments because the assents expired along with the 1975 76
agreements' expiration date.
However, it is noteworthy that not only did the Respon-
dent, through Denver McCormick actively participate in
the 1976 multiemployer bargaining sessions for the residen-
tial agreement, which would indicate continuing assent to
remaining a member of the NECA chapter, but Respon-
dent did, in fact, comply with all of the terms a conditions
of the 1976-78 residential agreement and all of the terms
and conditions of the commerical or inside agreement ex-
cept for the fact that it paid the 1975- 76 small commercial
clause rate for inside work performed by its employees.
Thus, when McCormick informed the employees, sent the
letter of resignation to the chapter, to NECA, and to the
Union, the resignation was untimely inoperative, and vio-
lative of the Act.4
In connection with Respondent's argument that the as-
sents executed in 1975 were for the term of the 1975-76
agreements only, the requirement in the assents that notice
of withdrawal from the chapter be given at least 150 days
4 See Retail As.ociate, Inc.. 120 NLRB 388 (1958) and its progeny. among
them Marquis Elevator (ompany. Inc.. 217 NIRB 461 (1975): Edward E.
Schultz dh/a Schultz Painting & Decorating Co., 202 NLRB Ill. 112
(1973): State Eleciric Service. Inc.. 198 NLRB 592, 593 (1972). It should also
be noted that, in testifying, Donald Little, an employer representative who
sat on the bargaining committee with Denver McCormick, considered his
compan hbound by the current agreements and the assents.
before the expiration of the current contract would indi-
cate that the assents looked toward future contracts as well
as current ones, and that if the 150-day notice was not
given, the party signing the said assent would remain in the
chapter and be bound by the secceeding contracts between
the chapter and the Union.
The Respondent, by McCormick and Ward, told its em-
ployees that it was no longer a member of NECA and the
chapter and, furthermore, informed its employees that they
must choose either to be represented by the union or to
stay with the Respondent. At the same time, McCormick
stated Respondent was not bound by the agreements. It
follows that these actions, which would contemplate the
discontinuance of payments to the various health and wel-
fare funds pursuant to the collective-bargaining agree-
ments, and also hiring by Respondent in violation of the
hiring hall provisions of the said agreements constituted
violations of Section 8(a)(5) and (1) of the Act.5
The Respondent's discharge of the employees, hereto-
fore named, because they chose continued representation
by the Union and receipt of the benefits provided by the
collective-bargaining agreements constitutes violations of
Section 8(a)(3) and (1) of the Act. The fact that the Re-
spondent did not specifically request several of these em-
ployees to either stay with it or remain represented by the
Union does not, in and of itself, require that the complaint
with regard to those individuals not specifically requested
to choose be dismissed. This is so because all employees
were referred originally to the Respondent by the Union
through the Union's hiring hall, were known members of
the Union, did not specifically tell the Respondent that
they desired to stay with Respondent, and promise, or at
least represent, that they would abandon the Union as their
bargaining representative. Thus, in this respect, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
Inasmuch as it is shown that, by abandoning the con-
tracts, the Respondent sought to and did change the terms
and conditions of employment of three employees, namely,
Jack L. Anderson,6 Rex Slaughter, and Robert Beal, who
remained in Respondent's employ,7 constitutes further vio-
lations not only of Section 8(a)(5) and (1) of the Act, but
also of Section 8(a)(3) and () of the Act.8
In addition, when the Respondent approached employ-
ees and asked them whether they had made up their minds
to either stay with the Union as their bargaining represen-
tative or stay with the Company under the terms and con-
ditions which the Respondent would then dictate or negoti-
ate with the individual employees, such approach toward
individual negotiations constituted further violation of Sec-
tion 8(a)(5) of the Act. This is so because, in negotiating or
attempting to negotiate individually with these employees,
the Respondent sought to bypass and disregard the collec-
tive-bargaining representative of the said employees.
'John E. Holkko, d a lifetime Shingle Comptan. 203 NLRB 688
(1973); Oak Cliff-Golman Baking Compuan, 202 NLRB 614. 616 (1973):
Marquis Elevator Companv, Inc., supra.
6 Not the same individual as Jack D. Anderson who was discharged.
Beal is Denver McCormick's son-in-law.
See John E Holkko. supra; arquid Elevator (ompanv, In(, supra
McCORMICK ELECTRICAL, CONSTRUCTION 425
IV. THE EFFECT OF HE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with the operation of the
Respondent, herein described in section I above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCUISIONS OF LA\W
I. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees employed by the Respondent at its Co-
lumbus, Ohio, facility performing electrical work, exclud-
ing all other employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. From at least on or about May 1. 1975, the Union has
been the collective-bargaining representative of the em-
ployees in the aforementioned appropriate unit, and by vir-
tue of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of all employees in said unit for the
purposes of collective bargaining with repsect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
5. Commencing on or about at least May 1. 1975, and
continuing to date, the Union has requested. and continues
to request, Respondent to bargain collectively with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment as the exclusive col-
lective-bargaining representative of all the employees in the
aforesaid unit.
6. Since at least on or about May 1. 1975, the Respon-
dent recognized and bargained collectively with the Union
as the exclusive bargaining representative of the employees
in the appropriate unit until on or about February 17,
1977; at which time, by withdrawing recognition from the
Union and thereafter changing wage rates, employees' ben-
efits, and other conditions of employment, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
7. By constructively discharging Jack D. Anderson. Ste-
ven DeLong, L. Patrick Rockhold, William F. Golden,
Daniel Laemmle, Ralph Lowell Jordan, Joseph H. Fennek-
en. Alfred Trent, and Scott Stralev the Respondent has
engaged in unfair labor practices in violation of Section
8(a)(3) and (I) of the Act.
8. By requiring its employees to elect between forgoing
their rights under the 1976-78 contract or forgoing employ-
ment with the Respondent. the Respondent coerced and
restrained said employees in the exercise of rights guaran-
teed them by Section 7 of the Act and thereby engaged in,
and is engaging in, unfair labor practices proscribed b'
Section 8(a)( ) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
rtiF RME )Y
It having been found that the Respondent herein has
violated the Act, it will be recommended that the Respon-
dent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that the Respondent engaged in
activities which constitute interference, restraint, and coer-
cion as defined by Section 8(a)(1) of the Act. it is recom-
mended that the Respondent be ordered to cease and de-
sist therefrom.
Having found that the Respondent has violated Section
8(a)(5) of the Act by untimely resignation from the chapter
and from NECA, unilaterally making changes in the terms
and working conditions of its employees. and otherwise
refusing to bargain with the Union, the Respondent will be
required to cease and desist from further violations, to re-
voke its unilateral changes, and to give retroactive effect to
all the terms and conditions of the 1976-78 agreement be-
tween the Union and NECA and the chapter. from the
date of the Respondent's rejection of the said agreement on
February 17. 1977. It will be further ordered that the Re-
spondent bargain, upon request, with the Union with re-
gard to the terms and working conditions of the employees
in the unit herein found appropriate.
It having been found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily discharg-
ing Jack D. Anderson. Steven DeLong, L. Patrick Rock-
hold, William F. Golden, Daniel Laemmel, Ralph Lowell
Jordan, Joseph H. Fenneken, Alfred Trent, and Scott Stra-
lev, it will be ordered that they be reinstated to their former
or equivalent positions and that the Respondent make
them whole by paying to each a sum of money equal to
that which he would have earned before the discrimination
visited upon him by the Respondent. Backpay shall he
computed with interest thereon in the manner prescribed in
F W. Woolworth Compa.', 90 NLRB 289 (1950). and
Florida Steel Corporation, 231 NLRB 651 (1977).9
On the basis of the foregoing findings of facts, conclu-
sions of law. and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER
The Respondent. McCormick Electrical Construction
Co., Inc.. Columbus, Ohio, its officers, agents, uccessors,
and assigns. shall:
1. Cease and desist from:
(a) Failing or refusing to give full effect to and to comply
fully with the 1976 78 residential and commercial wiring
agreements between the Columbus Division, Central Ohio
See. generalIIs, lIs Plun hin dl & tt e ni, , 138 N I.R B I I t 1t,2
Iln the ecn n eceplron, are filed a. pro.Mi ied h Se. o t' 4h of the
Rules and Regulatiu) Of the Nalion.lal ihar Relatil.ls lBoard. the finding,,.
.con ,.tlslin,. aind reconind lted Oider h erein shall. ais proided h the
Board it Se, 10248 f the Rules .ianid Rcgeil.ia n',. he .adopied h the Board
rind hecone it, findings , C ,l/.IilllII. .llld )rder. nd ill n o nitl ell Hl ieto
,hall he dIeemied s..acd ,fr ll pip, c
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chapter, National Electrical Contractors Association, Inc.,
and Local Union No. 683, International Brotherhood of
Electrical Workers, AFL-CIO, effective June 1, 1976, to
May 31, 1978, according to its tenure and effect with re-
spect to the employees in the unit set forth above.
(b) Failing or refusing on request to bargain collectively
with the aforesaid labor organization as the exclusive col-
lective-bargaining representative of the employees in the
aforesaid unit.
(c) Unilaterally changing the wages and other terms and
conditions of employment of the employees in the afore-
said unit without prior consultation with the aforesaid la-
bor organization as the exclusive collective-bargaining rep-
resentative of said employees.
(d) Bargaining directly and individually with any em-
ployee in the aforesaid unit.
(e) Coercing or restraining employees in the aforesaid
unit by telling them that they can work for the Respondent
only if they agree to work under the terms and conditions
of employment unilaterally established by the Respondent,
rather than under the terms and conditions established by
the aforesaid collective-bargaining agreements or by any
other statement of similar support.
(f) Unlawfully terminating employees or otherwise un-
lawfully discriminating with regard to their wages and
terms and conditions of employment.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or portec-
tion as guaranteed by Section 7 of the Act, or to refrain
from any or all such activities, except as such right may be
affected by an agreement authorized by Section 8(a)(3) of
the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively
with the aforesaid labor organization as the exclusive col-
lective-bargaining representative of the employees in the
aforesaid appropriate unit with respect to rates of pay,
wages, hours of work, and other terms and conditions of
employment.
(b) Restore and place in effect all terms and conditions
of employment provided by the aforesaid contracts of May
1, 1976, which were unilaterally changed by the Respon-
dent.
(c) Make such pension, welfare, and other fringe benefit
payments on behalf of those employees in the said appro-
priate unit for whom such contributions were previously
made, and would have continued to be made, had the Re-
spondent not ceased to comply with the aforesaid collec-
tive-bargaining agreements.
(d) Offer Jack D. Anderson, Steven DeLong, L. Patrick
Rockhold, William F. Golden, Daniel Laemmle, Ralph
Lowell Jordan, Joseph H. Fenneken, Alfred Trent, and
Scott Straley full and unconditional reinstatements to their
former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make each of them whole for any loss of wages suffered by
reason of Respondent's conduct, as provided in the section
hereof entitled "The Remedy."
(e) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records, and reports necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order.
(f) Post at its facility in Columbus, Ohio, copies of the
attached notice marked "Appendix." 1 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being duly signed by the Respondent's repre-
sentative, shall be posted by it immediately upon receipt
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 the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
tl In the event that this Order is enforced b a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgmeit of the tUnited States Court of Appeals Enforcing an Order of the
National I.abor Relations Board."