Midland Electrical Contracting Corp.

National Labor Relations Board - Board Decisions

Jun 6, 2017

365 NLRB No. 87 (N.L.R.B. 2017)

365 NLRB No. 87
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Midland Electrical Contracting Corp. and United
Electrical Workers of America, IUJAT, Local
363. Cases 29–CA–144562 and 29–CA–144584
June 6, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE,
AND MCFERRAN
On February 1, 2016, Administrative Law Judge
Mindy E. Landow issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
I. BACKGROUND
The relevant facts are fully set forth in the judge’s de-
cision. Briefly, the Building Industry Electrical Contrac-
tors Association (the Association) executed a collective-
bargaining agreement with United Electrical Workers of
America, IUJAT, Local 363 (Local 363 or the Union) on
behalf of its employer-members, effective from Decem-
ber 1, 2008, through November 30, 2011. On June 30,
2010, Midland Electrical Contracting Corporation (the
Employer or the Respondent) became a member of the
Association when it executed a document entitled
“Membership Application and Designation of Bargaining
Representative” (Membership Application), which states
in relevant part:
B. The Employer hereby designates the Association as
its bargaining representative in all negotiations with
Local 363 for its employees in the bargaining unit de-
scribed above and agrees to be bound by all the terms
of any agreement entered into between the Association
and Local 363 covering said employees with the same
force and effect as though the Employer had executed
the agreement as a party.
. . .

1 We do not rely on Carr Finishing Specialties, Inc., 358 NLRB
1766 (2012), cited by the judge. See NLRB v. Noel Canning, 134 S.Ct.
2550 (2014).
2 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. In addition,
we shall modify the judge’s recommended Order to reflect this remedi-
al change and to conform to the Board’s standard remedial language.
We shall substitute a new notice to conform to the Order as modified.
D. The Employer shall be responsible for payment of
dues to the Association for the full period of the
Agreement with Local 363. Resignation from the As-
sociation must be in writing and served on the Associa-
tion by certified mail no less than 90 days prior to the
date of expiration of the agreement between the Asso-
ciation and Local 363. Timely receipt of such resigna-
tion shall relieve the Association from any responsibili-
ties or obligations to bargain on behalf of the Employer
for a new collective bargaining agreement.
Thereafter, the Respondent, the Association, and the
Union signed a document entitled “Assumption Agree-
ment,” which states in relevant part:
1. The Employer is bound to all of the terms and condi-
tions as are applicable from time to time by the nature
of the work performed for each of the Association Col-
lective Bargaining Agreements which are incorporated
herein by reference as if fully set forth in this Agree-
ment.
. . .
5. The Employer agrees that the Association shall, on
behalf of the Employer, negotiate successor Collective
Bargaining Agreements, amendments, renewals and
extensions of the Collective Bargaining Agreements
and the Employer agrees to be bound by any and all
amendments, renewals and/or extensions of the above
referenced Association Collective Bargaining Agree-
ments unless and until this Agreement is properly ter-
minated by either the Employer or the Union in accord-
ance with the renewal and/or Termination Provisions of
the Association Collective Bargaining Agreement.
The collective-bargaining agreement (CBA) termination
provision referenced in the Assumption Agreement states:
This Agreement shall be effective as of the 1st day of
December, 2008 [and] shall remain and continue in full
force and effect until Midnight November 30, 2011,
and from year to year thereafter, unless either party
gives written notice to the other by certified mail, return
receipt requested, at least sixty (60) days prior to the
date of expiration of this Agreement, that it desires to
modify or amend and/or re-negotiate same.
The Association and the Union executed a successor
CBA that included the same CBA termination timeline as
set forth in the provision above, but with a term of De-
cember 1, 2011, through November 30, 2014.
After signing the Membership Application in 2010, the
Respondent adhered to the 2008–2011 and 2011–2014
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CBAs. In August 2014,3 the Association and the Union
began negotiations for a successor CBA and ultimately
executed a Memorandum of Agreement effective De-
cember 1, 2014, through November 30, 2017. On Sep-
tember 4, less than 90 days (but more than 60 days) prior
to the expiration of the 2011–2014 CBA, and after nego-
tiations for the 2014–2017 CBA had begun, the Re-
spondent sent a withdrawal notice to the Association and
the Union stating that it would not renew the CBA and
would not be bound by any CBA beyond November 30,
2014. The Respondent sent a follow-up notice to the
Union on September 16 because it had not received any
acknowledgement that its September 4 letter to the Union
had been received. Beginning in September 2014, the
Respondent ceased making payments to any of the con-
tractually required benefit funds.
II. THE JUDGE’S DECISION
The judge found that the Respondent failed to timely
withdraw from the Association and therefore was bound
to the terms of the 2014–2017 CBA between the Associ-
ation and the Union. In so doing, the judge first found
that the Membership Application controlled the Re-
spondent’s withdrawal from the Association and that the
Respondent failed to meet the 90-day withdrawal
timeframe set forth therein. Relying on Rome Electrical
Systems, 349 NLRB 745 (2007), enfd. 286 Fed.Appx.
697 (11th Cir. 2008), she rejected the Respondent’s ar-
gument that the Assumption Agreement, which incorpo-
rated the CBA’s 60-day notice of termination provision,
superseded the Membership Application. The judge fur-
ther found that the Respondent’s withdrawal notices
were independently untimely because the Respondent
sent them after the Association and the Union had com-
menced negotiations for the 2014–2017 CBA. Having
found that the Respondent failed to timely withdraw
from the Association on two separate bases, the judge
concluded that the Respondent violated Section 8(a)(1),
(5) and (d) of the National Labor Relations Act (the Act)
by failing to adhere to the 2014–2017 CBA and by fail-
ing to make contractually-required benefit fund pay-
ments.
On exception, the Respondent argues that the judge er-
roneously failed to find that its withdrawal notices,
which complied with the termination provision set forth
in the Assumption Agreement, prevented the Respondent
from becoming bound to the 2014–2017 CBA. As dis-
cussed below, we agree with the judge’s findings that the
Respondent’s withdrawal notices were untimely both
because they were sent after the Association and the Un-
ion had commenced negotiations for the 2014–2017

3 All dates hereinafter are in 2014, unless otherwise specified.
CBA and because they did not comply with the terms of
the Membership Application. Because the withdrawal
notices were untimely, we agree with the judge that the
Respondent violated Section 8(a)(1), (5), and (d) of the
Act by failing to adhere to the 2014–2017 CBA.
III. DISCUSSION
It is well established that the fundamental purpose of
the Act is to foster and maintain stability in bargaining
relationships. See Retail Associates, Inc., 120 NLRB
388, 393 (1958). In the context of multiemployer bar-
gaining units, the Board has held that such units “can be
accorded the sanction of the Board only insofar as they
rest in principle on a relatively stable foundation.” Id.
“[T]he stability requirement of the Act dictates that rea-
sonable controls limit the parties as to the time and man-
ner that withdrawal will be permitted from an established
multiemployer bargaining unit.” Id. The Board has thus
held that, where an employer is contractually bound to a
multiemployer bargaining agency relationship, its with-
drawal from that relationship is not “free and uninhibit-
ed” and that attempts to withdraw must be timely and
unequivocal. Id. The Board will refuse to permit the
withdrawal of an employer from a multiemployer bar-
gaining arrangement, except upon adequate written no-
tice given prior to the date set by the contract for modifi-
cation or to the agreed upon date to begin the multiem-
ployer negotiations. Where actual negotiations have
commenced, the Board does not permit, “except
on mutual consent, an abandonment of the unit upon
which each side has committed itself to the other, absent
unusual circumstances.” Id. at 395. This policy prevents
a race for bargaining leverage in which individual parties
withdraw “in the hope of obtaining, through separate
negotiations, more favorable contract terms than those
which are foreshadowed” by group bargaining.4 The
Carvel Company, 226 NLRB 111,112 (1976) (quoting
Mor Paskesz, 171 NLRB 116, 118 (1968)), enfd. 560
F.2d 1030 (1st Cir. 1977), cert. denied 434 U.S. 1065
(1978).
Applying these established principles here, we find, in
agreement with the judge, that the Respondent was
bound to the 2014–2017 CBA because it failed to with-
draw from the Association before the Association and the
Union commenced negotiations for the 2014–2017
agreement. Further, even if the Respondent’s attempted
withdrawal had occurred before the commencement of

4 Even where negotiations commence prior to the established con-
tractual deadline for an employer to withdraw from a multiemployer
bargaining association, the Board will still find that the employer is
bound by the resulting contract, absent unusual circumstances. See
D.A. Nolt, Inc., 340 NLRB 1279 (2003), enf. denied on other grounds
406 F.3d 200 (3rd Cir. 2005).
MIDLAND ELECTRICAL CONTRACTING CORP. 3
negotiations, we would nevertheless find the withdrawal
untimely because it was not made within the timeframe
set forth in the Membership Application.
A. Withdrawal after the Association and the Union had
Commenced Negotiations
The Association and the Union began negotiations for
the 2014–2017 CBA in August. The Respondent sent its
withdrawal notices on September 4 and 16. Applying
Board precedent, the judge found that the Respondent is
bound to the 2014–2017 CBA because its withdrawal
notices were sent after the Association and the Union
had commenced negotiations for that CBA. Although
the Respondent generally excepted to the judge’s find-
ings, it makes no supporting argument in its brief as to
why the judge’s finding in this regard should be over-
turned. In these circumstances, it is the Board’s well-
established practice to adopt the judge’s finding, and we
do so here. See 29 CFR § 102.46(a)(1)(ii); Holsum de
Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1 (2005), enfd.
456 F.3d 265 (1st Cir. 2006). But even if we were to
reach the merits of this issue, we would agree with the
judge, for the reasons she states, that the Respondent’s
attempted withdrawal was untimely because it came after
the commencement of negotiations.
Advancing an argument not raised by the Respondent
to the judge or the Board, our dissenting colleague as-
serts that, by signing the Assumption Agreement, the
Union provided the requisite mutual consent permitted
by our case law for the Respondent to withdraw from the
Association at any time prior to 60 days before the expi-
ration of the 2011–2014 CBA. We disagree. The judge
correctly found that the record contains no evidence of
mutual consent that would authorize the Respondent to
withdraw after the commencement of negotiations for the
2014–2017 agreement. Further—even assuming (incor-
rectly, as we will explain) that the parties intended for
the Assumption Agreement to control the Respondent’s
withdrawal from the Association—nothing in the As-
sumption Agreement addresses the subject of negotia-
tions, nor can it be read to provide the mutual consent
necessary for the Respondent to withdraw from the As-
sociation after the commencement of negotiations.5

5 Our colleague relies on Acropolis Painting, 272 NLRB 150
(1984), to support his position that the Assumption Agreement consti-
tuted the Union’s consent for the Respondent to withdraw after negotia-
tions had commenced. But Acropolis Painting is easily distinguishable.
There, the Board noted that the relevant agreement provided an agreed-
upon means for withdrawing from the agreement itself and the agree-
ment specifically stated that such a withdrawal, “eliminates said party
from participation in any negotiations” regarding the agreement. Id. at
150–151. Here, there is no similar contract language that would allow
the Respondent to withdraw from negotiations or to withdraw from the
Association after negotiations had commenced.
Accordingly, we find that the Respondent was bound
to the 2014–2017 CBA because it failed to withdraw
from the Association prior to commencement of the ne-
gotiations between the Association and the Union.
Therefore, the Respondent violated Section 8(a)(1), (5),
and (d) of the Act by failing to adhere to the CBA.
B. Withdrawal after the Deadline Established in the
Membership Application
Even if the Respondent’s withdrawal had come before
(and not after) negotiations began, it would still have
been untimely. The unambiguous terms of the Member-
ship Application barred the Respondent from resigning
its membership in the Association during the final 90
days of any CBA between the Association and the Un-
ion. The 2011–2014 CBA was scheduled to terminate on
November 30, 2014. Accordingly, the Respondent was
required to notify the Association of its withdrawal no
later than September 1. But the Respondent did not send
its withdrawal notices until September 4 and 16. As a
result, we agree with the judge that the Respondent’s
withdrawal from the Association was untimely under the
terms of the Membership Application. Consequently the
Respondent became bound to the 2014–2017 agreement.
The Respondent does not dispute that its withdrawal
was untimely under the Membership Application and,
per the terms of that agreement, an untimely withdrawal
would bind the Respondent to the 2014–2017 CBA. The
Respondent nonetheless contends that it is not bound to
2014–2017 CBA because its withdrawal notices were
timely under the 60-day termination procedure described
in the Assumption Agreement. The Respondent’s argu-
ment is premised on the contract-merger principle, which
states that a subsequent contract (here, the Assumption
Agreement) modifies the predecessor contract’s (the
Membership Application) conflicting terms on the same
subject matter. Similarly, our dissenting colleague
would find that the Assumption Agreement controls the
Respondent’s withdrawal of bargaining authority from
the Association and that its withdrawal was timely. We
disagree.
In Rome Electrical Systems, supra, 349 NLRB 745, the
Board addressed and rejected a similar argument to that
made by the Respondent here. The Board there found
that the contract-merger principle was inapplicable be-
cause the two agreements at issue did not cover the same
subject matter. We find the same to be true here. The
Membership Application, wherein the Respondent con-
ferred on the Association exclusive bargaining authority,
clearly addresses the procedures for Respondent’s with-
drawal from the Association, stating that “[r]esignation
from the Association must be in writing and served on
the Association . . . no less than 90 days prior to the . . .
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expiration” of the CBA. The Assumption Agreement,
however, overwhelmingly focuses on the CBA and the
Respondent’s and Union’s obligations thereunder, and is
devoid of any specific references to the Respondent’s
membership in the Association. The Respondent con-
tends that paragraph 5 of the Assumption Agreement
addresses withdrawal from the Association and provides
a new, shorter timeframe for doing so. While the provi-
sion is not a model of clarity, paragraph 5—read both
alone and within the broader context of the Assumption
Agreement—does not warrant such a conclusion. As
stated above, the Assumption Agreement focuses on the
parties’ obligations under the CBA. Paragraph 5 merely
restates the Respondent’s agreement, made in the Mem-
bership Application, to have the Association bargain on
its behalf and to be bound to any CBAs negotiated by the
Association and the Union. The structure of the As-
sumption Agreement and the context surrounding para-
graph 5 support our conclusion that the termination pro-
vision only applies to terminating the CBA. It is well
established that withdrawal from a multiemployer bar-
gaining association is an action distinct from terminating
a CBA. See Rome Electrical Systems, supra at 747.
In addition, a finding that paragraph 5 of the Assump-
tion Agreement applies to the Respondent’s membership
in the Association would lead to an illogical result. Par-
agraph 5 of the Assumption Agreement states that the
Employer is bound to any amendments to the CBA until
the Assumption Agreement is, “properly terminated by
either the Employer or the Union in accordance with the
renewal and/or Termination Provisions of the Associa-
tion Collective Bargaining Agreement,” and the termina-
tion procedure in the CBA requires that “either party
gives written notice to the other.” As a result, if the As-
sumption Agreement and its reference to the CBA are
read to apply to the Respondent’s membership in the
Association, the Respondent would be permitted to ter-
minate its membership by notifying the Union without
requiring any notification to the Association. This pro-
cedure is contrary to the Membership Application’s re-
quirement that the Respondent’s withdrawal notice be in
writing and served on the Association by certified mail in
a timely manner. Finally, if the Association and the Re-
spondent actually intended to abrogate the 90-day notice
requirement of the Membership Application by executing
the Assumption Agreement, they likely would have done
so in an explicit manner, not by “the insertion of one
phrase with no further elaboration.” See Rome Electrical
Systems, supra at 748.
For the reasons discussed above, we find that the As-
sumption Agreement does not govern the Respondent’s
membership in the Association.6 Accordingly, we agree
with the judge that the Membership Application con-
trolled the Respondent’s withdrawal from the Associa-
tion and that the Respondent failed to timely withdrawal
from the Association at least 90 days prior to the expira-
tion of a CBA. Consequently, the Respondent became
bound to the 2014–2017 CBA and violated Section
8(a)(1), (5), and (d) of the Act by failing to adhere to the
CBA.
ORDER
The National Labor Relations Board orders that the
Respondent, Midland Electrical Contracting Corp., for-
merly of Staten Island, New York, and currently operat-
ing from Keyport, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the United Electrical Workers of America, IUJAT, Local
363 (the Union), or any other union representing an ap-
propriate unit of its employees, by
(1) Withdrawing authorization from the Building In-
dustry Electrical Contractors Association (the Associa-
tion) to represent the Respondent in multiemployer
bargaining with the Union at a time when the Respond-
ent is obligated to bargain through the Association on a
multiemployer basis.
(2) Refusing to abide by and honor collective-
bargaining agreements negotiated by the Association
with the Union at a time when the Respondent is repre-

6 In asserting that the Assumption Agreement is the controlling doc-
ument regarding the Respondent’s withdrawal of bargaining authority
from the Association, the Respondent and our dissenting colleague note
that the Assumption Agreement is the only document signed by the
Association, the Respondent, and the Union. As explained above,
however, the Assumption Agreement cannot fairly be read to address
the Respondent’s withdrawal from the Association and thus the Mem-
bership Application is the controlling document on this issue. That the
Union did not sign the Membership Application does not change this
result. A union need not be a party to an employer’s agreement to enter
into a multiemployer bargaining relationship with an association for
that agreement to be binding on the employer.
Further, our dissenting colleague asserts that the Union has no cog-
nizable complaint if the Membership Application is breached because it
was not a party to that agreement. We disagree. Rather than a standard
contract dispute between two parties, this case involves multiemployer
bargaining which is a “consensual, tripartite relationship between the
union, the multiemployer bargaining association, and the individual
employer-members of the association.” Callier’s Custom Kitchens, 243
NLRB 1114, 1117 fn. 8 (1979), enfd. 630 F.2d 595 (8th Cir. 1980).
The Membership Application authorized the Association to bind the
Respondent to any CBAs, “as though the Employer had executed the
agreement as a party.” Accordingly, the Union had the right under Sec.
8(a)(5) and (d) of the Act to enforce the agreement against the Re-
spondent, on behalf of the employees that the Union represented, even
though the Union did not sign the Membership Application.
MIDLAND ELECTRICAL CONTRACTING CORP. 5
sented by the Association or to which the Respondent
has agreed to be bound.
(3) Refusing, since September 2014, to make contrac-
tually required fund contributions to the Union’s Secu-
rity Fund, Building Trades’ Welfare Benefit Fund,
Building Trades’ Annuity Fund, Building Trades’ Edu-
cation Fund and the Electricians’ Retirement Fund on
behalf of unit employees
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Association and the Union, in writing,
that the Respondent continues to authorize the Associa-
tion to represent it in bargaining with the Union, in ac-
cordance with the Membership Application and Designa-
tion of Bargaining Representative executed on or about
June 30, 2010, and that it will continue to authorize the
Association to represent it in collective bargaining until
such time as that authorization may be withdrawn in ac-
cordance with the terms of the Membership Application,
or by mutual consent of the parties, or in accordance with
the law.
(b) Make whole any employees in the bargaining unit
for any loss of earnings and other benefits suffered as a
result of the Respondent’s failure to adhere to the con-
tracts negotiated by the Association; reimburse those
individuals for any expenses resulting from any failure to
make contributions to benefit funds required under those
contracts; and make all required benefit fund payments
or contributions that the Respondent has failed to make
since September 2014—all in the manner set forth in the
remedy section of the judge’s decision as amended in
this decision.
(c) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
29, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Staten Island, New York, if still extant, and
at its Keyport, New Jersey facility copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since September 1, 2014.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 6, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
Contrary to my colleagues, I believe that the Board
must reverse the judge’s finding that the Respondent’s
attempted withdrawal from the Building Industry Electri-
cal Contractors Association (the Association) was un-
timely under the terms of the Association’s membership
agreement and that, therefore, the Respondent is bound

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the 2014–2017 collective-bargaining agreement
(2014–2017 Agreement) negotiated between the Asso-
ciation and the Union. Unlike my colleagues, I further
believe that the Board must reverse the judge’s finding
that, because Respondent’s attempted withdrawal from
the Association occurred after negotiations for that
agreement had commenced, the Respondent was inde-
pendently bound by the 2014–2017 Agreement. The
uncontroverted record evidence reveals, first, that the
parties mutually agreed on the manner and timing by
which the Respondent could withdraw from the Associa-
tion and cease being bound by the Association’s CBA,
and second, that the Respondent provided timely written
notice—in complete conformity with the parties’ mutual
agreement—that precludes any finding that the Respond-
ent remains bound by the Association’s CBA.
Facts
On or about June 30, 2010, the Respondent entered in-
to a Membership Application and Designation of Bar-
gaining Representative (Membership Application) with
the Association, pursuant to which the Respondent des-
ignated the Association as its bargaining representative.
Thereafter, the Respondent, the Association, and the Un-
ion signed an Assumption Agreement.
According to Paragraph 1 of the Assumption Agree-
ment, the Respondent agreed to be “bound to all of the
terms and conditions as are applicable from time to time
by the nature of the work performed for each of the As-
sociation Collective Bargaining Agreements which are
incorporated herein by reference as if fully set forth in
this Agreement.” Paragraph 5 of the Assumption
Agreement stated that:
The Employer agrees that the Association shall, on be-
half of the Employer, negotiate successor Collective
Bargaining Agreements, amendments, renewals and
extensions of the Collective Bargaining Agreements
and the Employer agrees to be bound by any and all
amendments, renewals and/or extensions of the above
referenced Association Collective Bargaining Agree-
ments unless and until this Agreement is properly ter-
minated by either the Employer or the Union in ac-
cordance with the renewal and/or Termination Provi-
sions of the Association Collective Bargaining Agree-
ment.1
Article 38 of the collective-bargaining agreement, which
was incorporated by reference in the Assumption Agree-
ment, contained the following termination language:

1 Assumption Agreement ¶ 5 (emphasis added).
This Agreement shall be effective as of the 1st day of
December, 2008 and shall remain and continue in full
force and effect until Midnight November 30, 2011 and
from year to year thereafter, unless either party gives
written notice to the other . . . at least sixty (60) days
prior to the date of expiration of this Agreement, that it
desires to modify or amend and/or renegotiate terms.2
Pursuant to the Assumption Agreement, the Respondent
became bound to an Association CBA that was effective
December 1, 2011, through November 30, 20143 (2011–
2014 Agreement), which contained the identical termination
language set forth in Article 38 of the prior agreement.
The Association and the Union began negotiating a
successor CBA in August. However, on September 4,
the Respondent sent a “notice of termination” to the Un-
ion and the Association. Two things about the Septem-
ber 4 letter cannot be disputed: first, the letter constituted
timely notice of termination in conformity with Assump-
tion Agreement paragraph 5 (quoted above); and second,
the letter expressly terminated the Association CBA in
conformity with Article 38 of that CBA (quoted above).
Thus, in pertinent part, the September 4 letter stated:
Please note that pursuant to Article 38 of the CBA, the
CBA “shall remain and continue in full force and effect
until Midnight November 30, 2014, and from year to
year thereafter, unless either party gives written notice
to the other by certified mail, return receipt requested,
at least sixty (60) days prior to the date of expiration of
this Agreement, that it desires to modify or amend
and/or renegotiate same.
On or about July 1, 2010, Midland and the Union en-
tered into an Assumption Agreement, which was
signed by Midland and representatives of the Union
and the Association (the “Assumption Agreement”).
According to Paragraph 1 of the Assumption Agree-
ment, Midland agreed to be “bound to all of the terms
and conditions as are applicable from time-to-time by
the nature of the work performed for each of the
[CBAs] which are incorporated herein by reference as
if fully set forth in this Agreement.” Furthermore, ac-
cording to Paragraph 5 of the Assumption Agreement,
Midland agreed “to be bound by any and all amend-
ments, renewals and/or extensions of the [CBA] unless
and until this agreement is properly terminated by ei-
ther [Midland] or the Union in accordance with the re-
newal and/or Terminations Provisions of the [CBA].”
A copy of the Assumption Agreement is enclosed
herewith.

2 Association CBA Art. 38 (emphasis added).
3 All dates are in 2014, unless otherwise noted.
MIDLAND ELECTRICAL CONTRACTING CORP. 7
Accordingly, Midland is a signatory to the CBA and is
herein providing written notice sent by certified mail,
return receipt requested, at least 60 days prior to the
date of the expiration that it desires to amend the CBA.
In accordance with the Termination Provisions in Arti-
cle 38 of the CBA, Midland is formally advising the
Union and the Association that Midland does not wish
to renew the CBA. In accordance with the Termination
Provisions in Article 38 of the CBA, Midland is also
formally advising the Union and the Association that
Midland does not wish to renew the Assumption
Agreement. As such, the last day that Midland will be
bound by the CBA or the Assumption Agreement will
be November 30, 2014.4
Discussion
A. The Respondent’s Withdrawal was Timely under the
Assumption Agreement
It is well established that where an employer is con-
tractually bound to a multiemployer bargaining agency
relationship, withdrawal from that relationship must be
timely and unequivocal. Retail Associates, Inc., 120
NLRB 388, 393 (1958). Contrary to the judge and my
colleagues, I believe the Board must conclude that the
Respondent provided timely and unequivocal notice of
withdrawal under the terms of the Assumption Agree-
ment.
The Assumption Agreement was a legally binding and
enforceable agreement between the Union, the Associa-
tion, and the Respondent. The plain language of the As-
sumption Agreement authorized the Association to act as
the Respondent’s bargaining representative in negotia-
tions with the Union and to bind the Respondent to
agreements subsequently negotiated between the Associ-
ation and the Union, including the 2011–2014 Agree-
ment at issue here. Further, Paragraph 5 of the Assump-
tion Agreement expressly set forth the procedure for
withdrawing from multiemployer bargaining. Specifical-
ly, in order to properly terminate the agreement, the Re-
spondent was required to comply with the termination
provision in Article 38 of the 2011–2014 Agreement,
which was incorporated by reference in the Assumption
Agreement. Because the Assumption Agreement, the
only relevant agreement to which the Respondent was a
party, was the source of the Respondent’s obligations
with regard to the 2011–2014 Agreement, once the Re-
spondent terminated the Assumption Agreement, it was
no longer bound to that agreement.

4 September 4 letter (bold typeface in original; italics added). Due
to a perceived failure of delivery of the first letter, the Respondent sent
a follow-up letter reiterating its position on September 16.
Here, on September 4, the Respondent sent a termina-
tion notice to both the Association and the Union, stating
that the Respondent would not renew or be bound by the
collective-bargaining agreement after November 30 and
referencing the Assumption Agreement and the 60-day
notice provision of the collective-bargaining agreement.
The Respondent’s termination notice clearly complied
with the 60-day notice requirement to request termina-
tion as set forth in the termination provision of Article 38
of the 2011–2014 Agreement. Having done all that was
contractually required to withdraw under the terms of the
Assumption Agreement, the Respondent was relieved
from being bound to “any and all amendments, renewals
and/or extensions” of the 2011–2014 Agreement. See
Sheet Metal Workers International Assoc., Local 104 v.
Simpson Sheet Metal, Inc., 954 F.2d 554, 555 (9th Cir.
1992) (because multiemployer bargaining units “are
creatures of mutual consent,” the ability to withdraw
from such a unit is necessarily “limited by the agreement
of the parties”; thus, to be effective, “withdrawal must be
carried out as specified in the agreement” of the parties).
Thus, I believe the record establishes that the Respond-
ent’s withdrawal letter was an unequivocal and timely
notice of intent to withdraw the Association’s authority
to bind the Respondent to any successor to the 2011–
2014 Agreement.
According to the judge and my colleagues, the Re-
spondent did not provide timely notice of withdrawal
under the terms of the Membership Application. How-
ever, such a finding cannot be reconciled with the ex-
press provisions of the Assumption Agreement. Both the
Membership Application and the Assumption Agreement
explicitly outline in detail the parameters governing the
Association’s authority to negotiate collective-bargaining
agreements with the Union and how the Respondent can
terminate that authority. In this regard, it is important to
note that the Assumption Agreement was the only
agreement signed by all three parties and, obviously, it
was executed subsequent to the Membership Applica-
tion. Accordingly, the Assumption Agreement—and not
the Membership Application—is the governing docu-
ment here.5

5 Moreover, the judge’s finding that the Membership Application
was the governing document is inconsistent with basic principles of
contract law. Because the Membership Application is a contract be-
tween the Respondent and the Association, the Union has no cogniza-
ble complaint if the Membership Application is breached. According-
ly, the 90-day notification period in the Membership Application is
immaterial unless the Association refused to allow the Respondent’s
withdrawal from membership pursuant to this provision.
My colleagues rely on Rome Electrical Systems, 349 NLRB 745
(2007), to support their contention that the Respondent’s ability to
withdraw the Association’s bargaining authority was governed by the
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Respondent’s Withdrawal was Consistent with
Retail Associates
I also believe my colleagues erroneously find that, be-
cause Respondent’s notice of withdrawal was served
after negotiations for the Association CBA had com-
menced, this independently binds the Respondent to the
2014–2017 Agreement that was subsequently entered
into between the Union and the Association. In this re-
spect, my colleagues and the judge mistakenly rely on
Retail Associates, Inc., 120 NLRB 388, 395 (1958),
where the Board held that, “absent mutual consent or
unusual circumstances,” a member of a multiemployer
association may not withdraw from the multiemployer
bargaining unit once negotiations have begun. My col-
leagues and the judge improperly disregard the fact that,
in the instant case, the Union and the Respondent entered
into the Assumption Agreement which, together with the
2011–2014 Agreement, clearly express the parties’ “mu-
tual consent” regarding the manner and timing by which
the Respondent can discontinue the Assumption Agree-
ment and avoid being bound by any successor Associa-
tion CBA. Specifically, as discussed above, Paragraph 5
of the Assumption Agreement provided an agreed-upon
procedure for the Respondent’s withdrawal from the As-
sociation, which incorporated by reference the renewal
and/or termination provisions of the 2011–2014 Agree-
ment. Moreover, the Respondent’s September 4 letter
expressly provided timely notice of nonrenewal of the

90-day notification period in the Membership Application. In Rome,
however, the notice provision governing the respondent’s ability to
withdraw from multiemployer bargaining was contained in a letter of
assent, not in a multiemployer association membership application. 349
NLRB at 745. A notice provision in a letter of assent, unlike one in a
multiemployer association membership application, is enforceable by a
union against a signatory employer. This is because the letter of assent
is a contractual arrangement between the union and the signatory em-
ployer whereby the employer agrees to be bound to the current collec-
tive-bargaining agreement (and often successor agreements) between
the multiemployer association and the union. In Rome, the respondent
signed the union’s letter of assent, authorizing the multiemployer asso-
ciation to be the respondent’s “collective-bargaining representative for
all matters contained in or pertaining to the current and any subsequent-
ly approved contract.” 349 NLRB at 745. The Board observed that it
“has frequently enforced the withdrawal-of-agency requirements in
IBEW letters of assent that were identical . . . to the letter of assent at
issue here.” Id. at 747 (emphasis added). Here, the Membership Appli-
cation is not a letter of assent, and there is no support for treating it as
such.
My colleagues further assert that my position that the Assumption
Agreement governed the Respondent’s withdrawal from multiemployer
bargaining is illogical. Yet, the Respondent would not have executed
the Assumption Agreement if it was already bound to collective-
bargaining agreements negotiated between the Association and the
Union pursuant to the terms of the Membership Application. I believe
it is clear that the Respondent became bound to the 2011–2014 Agree-
ment only because it executed the Assumption Agreement, not because
of its membership in the Association.
Assumption Agreement and timely notice terminating the
Association CBA. In fact, the September 4 letter quoted
the language in both agreements, relied upon by the Re-
spondent here, that spelled out when and how the Re-
spondent should provide notice to terminate the Assump-
tion Agreement and cease being bound by the Associa-
tion CBAs. When the parties specify the means for an
employer’s withdrawal from multiemployer bargaining,
as they have done here, this constitutes the “mutual con-
sent” element set forth under Retail Associates. For this
reason, the requirement in Retail Associates—that notice
must otherwise be provided before the multiemployer
negotiations have commenced—has no application in the
instant case.
This position is supported by the Board’s decision in
Acropolis Painting & Decorating, 272 NLRB 150
(1984). There, the Board found that, even though nego-
tiations had begun, the employers lawfully withdrew
from the multiemployer unit consistent with the agreed-
upon procedure set forth in the expiring collective-
bargaining agreement. Id. at 150, 156–157. In so find-
ing, the Board adopted the judge’s conclusion that the
language in the collective-bargaining agreement between
the employer association and the union constituted mutu-
al consent to the withdrawal. Id. at 156–157. In the in-
stant case, as in Acropolis Painting, the parties expressly
agreed to a specific period for withdrawal from any mul-
tiemployer negotiations, which constitutes mutual con-
sent for purposes of Retail Associates, even though the
multiemployer association has already commenced bar-
gaining for a new agreement.6
Accordingly, I find that the Respondent timely with-
drew from multiemployer bargaining and severed is rela-
tionship with the Union and the Association at the termi-
nation of the collective-bargaining agreement ending
November 30. For these reasons, I respectfully dissent.
Dated, Washington, D.C. June 6, 2017

6 My colleagues argue that Acropolis Painting is distinguishable be-
cause the Board relied on the fact that the language in the expiring
collective-bargaining agreement permitted the employer to withdraw
from “participation in any negotiations regarding [the] agreement.”
272 NLRB at 151. Yet, here, par. 5 of the Assumption Agreement
provided that once the Respondent properly terminated the Assumption
Agreement, the Respondent would no longer be bound to a successor
collective-bargaining agreement. Thus, the Assumption Agreement,
like the language in the contract in Acropolis Painting, set forth a pro-
cedure that allowed the Respondent to withdraw from participating in
the negotiations for a successor Association CBA.
MIDLAND ELECTRICAL CONTRACTING CORP. 9
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT withdraw, or attempt to withdraw, au-
thorization from the Building Industry Electrical Con-
tractors Association (the Association) to bargain with the
United Electrical Workers of America, IUJAT, Local 363
(the Union) on our behalf until such time as we may, by
law or agreement, do so.
WE WILL NOT refuse to abide by collective-bargaining
agreements negotiated by the Association with the Union
on our behalf while we are represented by the Associa-
tion.
WE WILL NOT fail and refuse to make required contri-
butions to the Union’s Security Fund, Building Trades’
Welfare Benefit Fund, Building Trades’ Annuity Fund,
Building Trades’ Education Fund, and the Electricians’
Retirement Fund on behalf of unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL bargain through the Association with the Un-
ion for collective-bargaining contracts covering our em-
ployees, and abide by such contracts, until we are no
longer obligated by agreement, or by law, to do so.
WE WILL make whole bargaining unit employees for
any loss of earnings and other benefits suffered as a re-
sult of our failure to adhere to the collective-bargaining
agreements between the BIECA and the Union.
WE WILL make all contractually-required contributions
to the Union’s Security Fund, Building Trades’ Welfare
Benefit Fund, Building Trades’ Annuity Fund, Building
Trades’ Education Fund, and the Electricians’ Retire-
ment Fund and reimburse unit employees, with interest,
for any expense resulting from our failure to make the
required payments under the collective-bargaining
agreements since September 2014.
WE WILL compensate all unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 29, with 21 days of the date the amount
of backpay is fixed, either by agreement or Board order,
a report allocating the backpay awards to the appropriate
calendar years for each employee.
MIDLAND ELECTRICAL CONTRACTING CORP.
The Board’s decision can be found at
www.nlrb.gov/case/29–CA–144562 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Marcia E. Adams, Esq., for the General Counsel.
Ronald Steinvurzel, Esq. and Lindsey E. Haubenreich, Esq.
(Steinvurzel & Levy Law Group), of White Plains, New York,
for the Respondent.
Gary P. Rothman, Esq.1 and Eric J. Laruffa, Esq. (Law Offices
of Richard M. Greenspan, P.C.), of Ardsley, New York, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
MINDY E. LANDOW, Administrative Law Judge. Based upon
charges filed by United Electrical Workers of America, IUJAT,
Local 363 (Local 363 or the Union) against Midland Electrical
Contracting Corp. (Midland or Respondent), a consolidated
complaint and notice of hearing (complaint) issued on April 29,
2015, alleging that Respondent violated Section 8(a)(1), (5) and
(d) of the Act by failing to make contractually required fund
contributions to various union employee benefit funds; failing
to timely withdraw from the Building Industry Electrical Con-

1 “Mr. Rothman has advised the Regional Director that as of Janu-
ary 21, 2016, he is no longer affiliated with the Law Offices of Richard
M. Greenspan.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tractors Association (BIECA), and refusing to adhere to the
collective-bargaining agreement between BIECA and the Un-
ion. Respondent filed an answer and then an amended answer
denying the material allegations of the complaint and asserting
certain affirmative defenses which will be discussed, as rele-
vant, below. A hearing of this matter was held before me in
Brooklyn, New York, on September 17, 2015.
Based upon my consideration of the entire record in this mat-
ter,2 including my evaluation of the witnesses and the briefs
filed by the Respondent and counsel for the General Counsel, I
make the following
FINDINGS OF FACT
JURISDICTION
Respondent is a domestic corporation and, at material times,
maintained a place of business in Staten Island, New York.3
Respondent is engaged in the business of electrical installation
and maintenance. During the 12-month period prior to the
issuance of the complaint, a period which is representative of
its annual operations generally, Respondent purchased and
received goods and materials valued in excess of $50,000 di-
rectly from suppliers located outside the State of New York.
Based upon the record herein, I find that at all material times,
Respondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Background
Sometime during the spring of 2010, Respondent, by its
President Kevin McGinley, contacted Charles Shimkus, the
Union’s business manager, to discuss his employees joining the
Union and obtaining coverage under the BIECA multi-
employer collective-bargaining agreement. BIECA, an associa-
tion of electrical contractors, had executed a collective-
bargaining agreement with the Union in 2008 covering a unit of
electricians, electrical maintenance mechanics, helpers, appren-
tices, and trainees employed by its member employers. This
agreement was in effect from December 1, 2008, until Novem-
ber 30, 2011. At their initial meeting, McGinley advised Shim-
kus that Respondent wanted to obtain Project Labor Agreement
(PLA) work for the New York City School Construction Au-
thority, work which historically had been performed by mem-
bers of another union, Local 3, IBEW. Shimkus informed
McGinley that BIECA and the Union were considering filing a
lawsuit to allow its members to perform such work; however,
no lawsuit had been filed at the time.
Sometime prior to June 30, 2010, Respondent decided to join
BIECA and assume the collective-bargaining agreement which
has been referenced above. In so doing, Respondent executed
three documents: a Membership Application, a Recognition
Agreement, and an Assumption Agreement.

2 Counsel for the General Counsel’s motion to amend the record to
include GC Exh. 12, which was inadvertently omitted from the exhibits
in this matter is hereby granted.
3 In December 2014, Respondent relocated its offices to New Jersey.
The Membership Application
On or about June 30, 2010, Respondent entered into a Mem-
bership Application and Designation of Bargaining Representa-
tive with BIECA (the Membership Application) where Re-
spondent designated BIECA as its bargaining representative.
This agreement, which was not signed by any representative of
the Union, provided in relevant part as follows:
A. The Employer hereby applies for membership in the As-
sociation. The Employer understands that it agrees to be
bound by the Constitution and By-Laws of the Association.
B. The Employer hereby designates the Association as its
bargaining representative in all negotiations with Local 363
for its employees in the bargaining unit described above4 and
agrees to be bound by all the terms of any agreement entered
into between the Association and Local 363 covering said
employees with the same force and effect as though the Em-
ployer had executed the agreement as a party.
C. The Association hereby agrees to represent the Employer
in negotiations with Local 363 and to negotiate a collective
bargaining agreement on the Employer’s behalf concerning
the Employer’s employees in the collective bargaining unit
described above.
D. The Employer shall be responsible for payment of dues to
the Association for the full period of the Agreement with Lo-
cal 363. Resignation from the Association must be in writing
and served on the Association by certified mail no less than
90 days prior the day of the expiration of the agreement be-
tween the Association and Local 363. Timely receipt of such
resignation shall relieve the Association from any responsibil-
ities or obligations to bargain on behalf of the Employer for a
new collective bargaining agreement.
The Recognition Agreement
This agreement, executed by duly authorized representatives
of Respondent and the Union, entered into on or about June 30,
2010,5 provides as follows:
WHEREAS, the Union has presented to the Employer evi-
dence that it represents a majority of the employees of the
Employer in the classification and facility hereinafter set
forth;
WHEREAS, the Employer has satisfied itself, as a result of
such evidence and other investigation that the Union does rep-
resent a majority of such employees, and
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Employer recognizes the Union as the sole and exclusive col-
lective bargaining agent for all employees of the Employer in
the following classification:

4 The unit was described as: “All electricians, electrical maintenance
mechanics, helpers, apprentices and trainees excluding office clerical
employees, professional employees, guards and supervisors as defined
in the Act.”
5 Another version of the Recognition Agreement was executed on
July 30, 2010. However, there is no dispute as to the authenticity of
this document.
MIDLAND ELECTRICAL CONTRACTING CORP. 11
All electricians, electrical maintenance mechanics, helpers,
apprentices and trainees, excluding office clerical employees,
professional employees, guard and supervisors as defined in
the Act.
The Assumption Agreement
Thereafter, the Union, the Association and Respondent
signed an Assumption Agreement.6 This agreement set forth, in
pertinent part, the following:
1. The Employer is bound to all of the terms and conditions
as are applicable from time to time by the nature of the work
performed for each of the Association Collective Bargaining
Agreements which are incorporated by reference herein as if
fully set forth in this Agreement.
2. The Union having hereby requested recognition as the ma-
jority representative under the Act, the Employer hereby rec-
ognizes the Union as the majority Section 9(a) representative
under the Act. The Employer also recognizes that the Union
has the majority support of the unit employees to be the unit
employees’ collective bargaining representative and the Em-
ployer further recognizes the Union as the majority repre-
sentative based on the Union having shown, or having offered
to show an evidentiary basis of its majority support.
3. The parties further agree to be bound to all the agreements
and declarations of trusts, amendments and regulations, there-
to, referenced in the Association Collective Bargaining
Agreement and to remit all contributions as set forth under the
Association Collective Bargaining Agreement and all
amendments, renewals and/or extensions thereto, as adopted
by the aforesaid Association and the aforesaid Local Union or
their designated trustees.
4. The Employer agrees to be responsible for the payment of
fringe benefit contributions due and owing pursuant to the
Association Collective Bargaining agreement. All contribu-
tions are due in the fund office by the tenth of each month. . . .
5. The Employer agrees that the Association shall, on behalf
of the Employer, negotiate successor Collective Bargaining
Agreements, amendments, renewals and extensions . . . and
the Employer agrees to be bound by any and all amendments
renewals and/or extensions of the above referenced Associa-
tion Collective Bargaining Agreements unless and until this
Agreement is properly terminated by either the Employer or
the Union in accordance with the renewal and/or Termination
Provisions of the Association Collective Bargaining Agree-
ment.
The Collective-Bargaining Agreement
As is relevant to the facts of the instant case, the collective-
bargaining agreement which is the subject of the above-
described Assumption Agreement, as entered into by Respond-
ent, Local 363 and BIECA, provides for mandated contribu-

6 Again, there are two versions of the Assumption Agreement in ev-
idence: one is effective by its terms as of July, 1, 2010; the other is
effective as of its terms as of August 1, 2010. Notwithstanding the
variation in the dates, the authenticity of the agreement is not disputed.
tions to various employee benefit funds: the Security Fund, the
Building Trades’ Welfare Benefit Fund, the Building Trades’
Annuity Fund, the Building Trades’ Education Fund and the
Electricians’ Retirement Fund.
Additionally, Article 38 of the collective-bargaining agree-
ment provides as follows:
This Agreement shall be effective as of the 1st day of Decem-
ber, 2011 and shall remain and continue in full force and ef-
fect until Midnight November 30, 2014 and from year to year
thereafter, unless either party gives written notice to the other
by certified mail, return receipt requested, at least sixty (60)
days prior to the date of expiration of this Agreement, that it
desires to modify or amend and/or renegotiate terms.
The identical provision, with dates altered to reflect the ap-
propriate term, was contained in the prior collective-bargaining
agreement between the Union and BIECA, which was set effec-
tive by its terms from December 1, 2008, to November 30,
2011.
The evidence adduced at trial establishes that by August 1,
2010, Respondent’s employees were subject to the collective-
bargaining agreement between the Union and BIECA.
The Lawsuit
At some point in 2011, BIECA initiated a lawsuit against the
City of New York seeking to obtain PLA work for its members.
The lawsuit was dismissed on August 4, 2011. No further sub-
stantive detail concerning this matter was adduced on the rec-
ord.
Respondent’s attempts to withdraw from the collective-
bargaining agreement:
On January 17, 2013, McGinley sent the following corre-
spondence to Shimkus:
Due to the PLA Agreement we need to opt out of the Union,
IUJAT Local 363. We cannot be competitive in our bidding
while being members of Local 363, We hoped as we dis-
cussed in our first meeting, that Local 363 would be part of
the PLA Agreement. Unfortunately that never came to pass
due to losing the court case in Federal Court. Furthermore,
this letter is to inform you as of January 31, 2013, Midland
Electrical Contracting and all of its employees will no longer
be members of IUJAT Local 363 Electrical Union due to the
above mentioned reasons.
On January 23, 2013, Gary Rothman, counsel for the Union
replied in pertinent part:
Please be advised that Local 363 will not agree to release
Midland Electrical Contracting Corp. from its collective bar-
gaining contract obligations. The current BIECA contract, to
which Midland Electric is bound, is effective until November
30, 2014. Until at least that date, and for any additional time
that Midland Electric may be bound by any successor agree-
ment, Midland Electric will remain bound to the BIECA col-
lective bargaining agreement with Local 363. In that regard,
Midland Electric remains obligated to make all fringe benefit
contributions to the BIECA funds and the United Welfare
Fund—Security Division, as provided in your contract.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After this time, Respondent remained in BIECA and contin-
ued to abide by the terms of the collective-bargaining agree-
ment. However, McGinley testified that in early 2013, he had
several telephone conversations with Shimkus where he stated
that he would go out of business because of an inability to ob-
tain PLA work. According to McGinley, Shimkus said that he
did not have a problem with Midland leaving the Union, but
that the problem fell with BIECA President Patrick Bellantoni.
On March 29, 2013, Respondent Associate Vanessa Perez
emailed Bellantoni requesting that he email a copy of the
“Building Industry Electrical Contractors Association Agree-
ment.” Bellantoni replied that it was in book form and could
not be emailed. He then sent a copy of the industry collective-
bargaining agreement to Perez. That was the only document
provided.
Thereafter, in May 2013, Respondent filed a lawsuit against
BIECA and the Union to nullify the collective-bargaining
agreement on the basis of breach of contract. As to this claim,
the relief sought was as follows:
Thus, Plaintiff seeks a declaratory judgment declaring the
CBA to be null and void, of no force and effect and Midland’s
performance under the CBA should be excused when Mid-
land performs work pursuant to any Project Labor agreements
that require Midland to recognize IBEW Local 3 as the sole
and exclusive bargaining representative of its craft employees
who are performing work covered by said Agreement.
Respondent additionally claimed fraudulent inducement in-
sofar as it asserted that if the Association and the Union had
advised Respondent that its lawsuit seeking PLA work had
proven to be unsuccessful, it would have withdrawn from the
Association and terminated the 2008 CBA pursuant to the terms
of that CBA and would not have agreed to enter into the Asso-
ciation’s subsequent CBA with the Union commencing De-
cember 1, 2011. In this regard, Respondent sought the follow-
ing relief:
1. For a declaratory judgment declaring the Collective Bar-
gaining Agreement to be null and void, of no force and effect
and excusing Midland’s performance under said Agreement
when Midland performs work pursuant to Project Labor
Agreements that require Midland to recognize IBEW Local 3
as the sole and exclusive bargaining representative of its craft
employees who are performing work covered by said Agree-
ment.
2. For a declaratory judgment declaring the Collective Bar-
gaining Agreement to be null and void, of no force and effect
as to Midland on the grounds that the December 1, 2011 Col-
lective Bargaining agreement was procured through fraud due
to the material omission of the dismissal of the Complaint in
BIECA v. The City matter; and
3. For such other relief including an award of attorneys’ fees,
costs and disbursements as to this Court may seem just and
proper.
It does not appear from the record that this matter proceeded
to a hearing, and on October 13, 2013, the Respondent, the
Union and BIECA entered into a stipulation of dismissal of the
foregoing lawsuit providing that it would be dismissed as to all
parties with prejudice and without costs or fees awarded to any
party.
Subsequent events
In August 2014, BIECA and the Union began negotiations
for a successor agreement. On November 30, 2014, the parties
executed a Memorandum of Agreement (MOA) effective De-
cember 1, 2014, through November 30, 2017.
On September 4, 2014, Respondent sent a “notice of termi-
nation” to BIECA and the Union providing in pertinent part as
follows:
Please note that pursuant to Article 38 of the CBA, the CBA
“shall remain and continue in full force and effect until Mid-
night November 30, 2014, and from year to year thereafter,
unless either party gives written notice to the other by certified
mail, return receipt requested, at least sixty (60) days prior to
the date of expiration of this Agreement, that it desires to
modify or amend and/or renegotiate same.
On or about July 1, 2010, Midland and the Union entered into
an Assumption Agreement, which was signed by Midland
and representatives of the Union and the Association (the
“Assumption Agreement”). According to Paragraph 1 of the
Assumption Agreement, Midland agreed to be “bound to all
of the terms and conditions as are applicable from time-to-
time by the nature of the work performed for each of the
[CBAs] which are incorporated herein by reference as if fully
set forth in this Agreement.” Furthermore, according to Para-
graph 5 of the Assumption Agreement, Midland agreed “to be
bound by any and all amendments, renewals and/or exten-
sions of the [CBA] unless and until this agreement is properly
terminated by either [Midland] or the Union in accordance
with the renewal and/or Terminations Provisions of the
[CBA].” A copy of the Assumption Agreement is enclosed
herewith.
Accordingly, Midland is a signatory to the CBA and is herein
providing written notice sent by certified mail, return receipt
requested, at least 60 days prior to the date of the expiration
that it desires to amend the CBA. In accordance with the
Termination Provisions in Article 38 of the CBA, Midland is
formally advising the Union and the Association that Midland
does not wish to renew the CBA. In accordance with the
Termination Provisions in Article 38 of the CBA, Midland is
also formally advising the Union and the Association that
Midland does not wish to renew the Assumption Agreement.
As such, the last day that Midland will be bound by the CBA
or the Assumption Agreement will be November 30, 2014.
Respondent sent a follow-up letter dated September 16,
2014, reiterating its contention that it had, in accordance with
the provisions of the CBA, timely notified the Union and the
Association that it did not wish to renew the CBA or the As-
sumption Agreement, and that the last day it will be bound by
either would be November 30, 2014.
MIDLAND ELECTRICAL CONTRACTING CORP. 13
The parties stipulated that as of September 2014, no pay-
ments to any of the contractually required benefit funds noted
above had been made.7
ANALYSIS AND CONCLUSIONS
An employer who signs an agreement to name a multiem-
ployer association to be its bargaining agent and to be bound by
the collective-bargaining agreement in effect between a union
and that multiemployer association and “any modification,
extensions or renewals” of that collective-bargaining agreement
is on notice that the bargaining relationship will be governed by
subsequent agreements if the employer fails to provide proper
notice to the contrary. Absent such notice, that employer is
bound by the new agreement negotiated between the union and
the association. See Ted Hicks and Associates, Inc., 232 NLRB
712, 713 (1977).
In Retail Associates, Inc., 120 NLRB 388, 395 (1958), the
Board found that to effectively withdraw from such a multiem-
ployer relationship, the withdrawal must be both unequivocal
and timely. Moreover, in The Carvel Co., 226 NLRB 111
(1976), the Board found that in order to be timely, the employ-
er’s withdrawal must be made prior to the commencement of
multi-employer bargaining over a new contract:
In Retail Associates, supra, the Board set forth the rules gov-
erning the withdrawal of an employer from multiemployer
bargaining. An employer may withdraw without the union’s
consent prior to the start of bargaining by giving unequivocal
notice of the intent to abandon the multiemployer unit and to
pursue negotiations on an individual basis. However, once
negotiations have actually begun, withdrawal can only be effec-
tuated on the basis of “mutual consent” or “unusual circum-
stances.”
As is of particular relevance to the instant case, Board prece-
dent has also made clear that the action of withdrawal of nego-
tiating authority from a multiemployer association is an action
distinct from terminating a contract. Rome Electrical Systems,
Inc., 349 NLRB 745, 747 (2007), enfd. 286 Fed. Appx. 697
(11th Cir. 2008).8
Applying the foregoing principles here, I conclude that the
Respondent continues to be bound to BIECA and the terms of
the 2014–2017 collective-bargaining agreement between
BIECA and the Union.
While the collective-bargaining agreement at issue had a 60-
day notice requirement for the parties to request modification or
termination, the terms of the Membership Application clearly
provide that:
Resignation from the Association must be in writing and

7 Respondent agreed to this stipulation with the caveat that it did not
acknowledge that any such payments were due.
8 In their posthearing briefs, both the General Counsel and Re-
spondent have cited to Carr Finishing Specialties, Inc., 358 NLRB
1766 (2012), in support of their respective positions. That case was
issued by a Board panel that the Supreme Court found was not properly
constituted. NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). The Gen-
eral Counsel urges that I rely upon the reasoning set forth by the Board
in that matter. While I do not officially rely upon that case, I do agree
with the general analytical framework as set forth therein, as it is sup-
ported by other Board precedent as discussed above.
served on the Association by certified mail no less than 90
days prior [to] the day of the expiration of the agreement be-
tween the Association and Local 363. Timely receipt of such
resignation shall relieve the Association form any responsibil-
ities or obligations to bargain on behalf of the Employer for a
new collective-bargaining agreement.
There is also no dispute that Respondent agreed to be bound
to the Membership Application which unambiguously provided
that:
The Employer hereby designates the Association as its bar-
gaining representative in all negotiations with Local 363 for
its employees in the bargaining unit described above and
agrees to be bound by all the terms of any agreement entered
into between the Association and Local 363 covering said
employees with the same force and effect as though the Em-
ployer had executed the agreement as a party.
In the present case, the agreement in effect expired on No-
vember 30, 2014. Thus, Respondent was required to notify
BIECA of its withdrawal, in writing by certified mail no later
than 90 days prior to that date, which it failed to do. Respond-
ent’s September notices were beyond that time frame. There is
also no evidence of mutual consent or unusual circumstances
which would authorize an untimely withdrawal.
Respondent has argued that the contractual termination pro-
visions in the collective-bargaining agreement, which were
incorporated by reference in the Assumption Agreement, super-
seded the termination language in the Membership Agreement.
The substance of that argument has been rejected by the Board.
See Rome Electrical Systems, supra at 747–748 (rejecting em-
ployer’s argument that termination language in a particular
collective-bargaining agreement superseded termination lan-
guage in a previously executed letter of assent to be bound by
the association-union agreements). To the contrary, I conclude
that Respondent conferred actual authority on BEICA to bind it
to subsequent agreements, absent a timely withdrawal accord-
ing to the terms of the Membership Application.
As the General Counsel has noted, the September notices of
withdrawal were further untimely inasmuch as they were sent
subsequent to the commencement of negotiations for the 2014–
2017 agreement. See The Carvel Company, supra. As the
Board has stated:
The right of withdrawal by either a union or employer from a
multiemployer unit has never been held, for Board purposes,
to be free and uninhibited, or exercisable at whim. For the
Board to tolerate such inconsistency and uncertainty in the
scope of collective-bargaining units would be to neglect its
function in delineating appropriate units under Section 9, and
to ignore the fundamental purpose of the Act by fostering and
maintaining stability in bargaining relationships. Necessarily
under the Act, multiemployer bargaining units can be accord-
ed the sanction of the Board only insofar as they rest in prin-
ciple on a relatively stable foundation.
Retail Associates, supra at 395.
I further find that Respondent’s reliance upon its unsuccess-
ful attempts to rid itself of its commitments to the 2011–2014
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement is unavailing. Respondent’s
January 2013 letter to the Union, which did not reference
BIECA, failed to constitute a legitimate withdrawal from
BIECA, as it did not comport with the clear requirements set
forth in the Membership Application. In addition, Respondent
requested immediate withdrawal during the second year of a 3-
year contract instead of at the end of the agreement in effect at
the time. Respondent was further notified by the Union that its
attempt to withdraw from the CBA would not be agreed to.
In a similar vein, I find that Respondent’s 2013 lawsuit failed
to meet the Membership Application’s requirements. Here,
Respondent unsuccessfully attempted to have the District Court
nullify the CBA; not its membership in BIECA. In any event,
the lawsuit proved ineffective and did not provide BIECA with
termination notice consistent with the terms of the Membership
Application.
In Respondent’s answer to the complaint, Respondent al-
ludes to the issue of fraudulent inducement, which echoes
claims brought in the lawsuit referenced above. I find these
assertions to be unconvincing. There is no evidence that mem-
bership in BIECA was premised upon a contingency or the
Union’s guarantee that it would be able to obtain PLA work.
Moreover, there is no evidence that Respondent failed to re-
ceive a copy of the Membership Application, which it, in fact,
executed and then forwarded to BIECA. In short, there is simp-
ly no evidence to support the insinuation that Respondent was
unaware of what it had agreed to.
CONCLUSIONS OF LAW
1. By failing and refusing to adhere to the collective-
bargaining agreement effective December 1, 2014, to Novem-
ber 30, 2017, between United Electrical Workers of America,
IUJAT, Local 363 (the Union) and The Building Industry Elec-
trical Contractors association (BIECA), and by refusing, since
September 2014, to make contractually required fund contribu-
tions to the Union’s Security Fund, Building Trades’ Welfare
Benefit Fund, Building Trades’ Annuity Fund, Building
Trades’ Education Fund and the Electricians Retirement Fund
on behalf of unit9 employees, Respondent has violated Section
8(a)(1), (5), and (d) of the Act.
2. The above labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondent should be ordered to
recognize and, on request, bargain with the Union as the collec-
tive-bargaining representative of all unit employees, as de-
scribed above. The Respondent should also be required to ad-
here to the 2014–2017 collective-bargaining agreement be-
tween the Union and BIECA and make whole the unit employ-
ees for any loss of earnings and other benefits suffered as a
result of the Respondent’s failure to apply the 2014–2017 col-

9 All electricians, electrical maintenance mechanics, helpers, appren-
tices and trainees excluding office clerical employees, professional
employees, guards and supervisors as defined in the Act.
lective-bargaining agreement between BIECA and the Union as
prescribed in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In the event backpay is owed, Respondent should be
ordered to compensate employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award and
file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters. Don
Chavas LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014).
Additionally, Respondent should be ordered to make all re-
quired benefit fund contributions from September 2014, to the
present, including any additional amounts applicable to such
funds as set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, Respondent should be
ordered to reimburse unit employees for any expenses resulting
from the Respondent’s failure to make the required contribu-
tions to the funds, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981). Such amounts are to be computed in the manner set
forth in Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent Midland Electrical Contracting, formerly of
Staten Island New York, and currently operating from New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize the United Electrical
Workers of America, IUJAT, Local 363 (the Union), as the
collective-bargaining representative of unit employees as has
been defined herein and in the Recognition Agreement, as set
forth above.
(b) Failing and refusing to apply to unit employees the 2014–
2017 collective-bargaining agreement between the Building
Industry Electrical Contractors Association (BIECA) and the
Union.
(c) In any like or related manner interfering with, restraining
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as the
exclusive collective-bargaining representative of the unit em-
ployees.
(b) Make whole all bargaining unit employees and all benefit
funds for any loss of income, contributions or benefits, and for
any expenses incurred in connection with those benefit fund

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
MIDLAND ELECTRICAL CONTRACTING CORP. 15
losses by those employees, in the manner set forth in the reme-
dy section of this decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this decision.
(d) Within 14 days after service by the Region, post at its fa-
cility in Staten Island, if still extant, and in its New Jersey facil-
ity, copies of the attached notice marked “Appendix.”11 Copies
of the notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to the physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or by other electronic means,
if the Respondent customarily communicates with its employ-
ees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since September
1, 2014.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. February 1, 2016

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to recognize the United Electrical
Workers of America, IUJAT, Local 363 (Union) as the exclu-
sive collective-bargaining representative of all employees per-
forming work in the following unit:
All electricians, electrical maintenance mechanics, helpers,
apprentices and trainees excluding office clerical employees,
professional employees, guards and supervisors as defined in
the Act.
WE WILL NOT fail and refuse to apply to unit employees the
existing collective-bargaining agreement between the Building
Industry Electrical Contractors Association (BIECA) and the
Union.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive collective-
bargaining representative of employees in the bargaining unit
and will adhere to all provisions in our existing collective-
bargaining agreement with the Union.
WE WILL make whole our bargaining unit employees, and all
benefit funds, for any loss of income, contributions, or benefits
suffered as a result of the failure to apply to those employees
the collective-bargaining agreement between the BIECA and
the Union and for any expenses incurred in connection with
those benefit fund losses, with interest.
MIDLAND ELECTRICAL CONTRACTING CORP.