Positive Electrical Enterprises

National Labor Relations Board - Board Decisions

Sep 23, 2005

345 N.L.R.B. 915 (N.L.R.B. 2005)

POSITIVE ELECTRICAL ENTERPRISES, INC.
345 NLRB No. 67
915
Positive Electrical Enterprises, Inc. and International
Brotherhood of Electrical Workers, Local 43.
Case 3–CA–25037
September 23, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 17, 2005, Administrative Law Judge Margaret
G. Brakebusch issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions as modified and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
order that the Respondent, Positive Electrical Enter-
prises, Inc., Mattydale, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
Chari-Lynn Koppel, Esq., for the General Counsel.
Joseph A. DeTraglia, Esq., for the Respondent.
Stephanie A. Miner, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Syracuse, New York, on March 15 and
16, 2005. The charge was filed by the International Brother-
hood of Electrical Workers, Local 43 (the Union), on Septem-
ber 2, 2004,1 and a complaint and notice of hearing issued on
November 10, 2004. On January 19, 2005, the Regional Direc-
tor for Region 3 of the National Labor Relations Board (the
Board) issued an amended complaint and order designating
hearing. The amended complaint alleges that on August 20,

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We correct an inadvertent error in fn. 2 of the judge’s decision con-
cerning the appropriateness of a bargaining unit. Although the Act
requires a unit for bargaining to be an appropriate unit, it does not
require that the unit be the most appropriate unit. American Hospital
Assn. v. NLRB, 499 U.S. 606, 610 (1991); Overnite Transportation Co.,
322 NLRB 723 (1996).
1 All dates are in 2004, unless otherwise indicated.
2002, Positive Electrical Enterprises, Inc. (the Respondent)
signed letters of assent with the Union. The amended com-
plaint alleges that by doing so, Respondent bound itself to the
terms and conditions of employment of the 2002–2003 residen-
tial wiring agreement and inside wiring agreement negotiated
by the Union and the Finger Lakes New York Chapter National
Electrical Contractors Association (NECA). The amended
complaint further alleges that since on or about August 20,
2002, Respondent has repudiated and failed and refused to
follow the terms of the 2002–2003 collective-bargaining
agreements, as well as those subsequently negotiated by the
Union and NECA in violation of Section 8(a)(5) and (1) of the
Act. Respondent filed timely answers to the complaint and
amended complaint denying the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel, the Union, and Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with a facility in Mattydale, New
York, is engaged as an electrical contractor in the building and
construction industry. Annually, Respondent in conducting its
business operations provided services valued in excess of
$50,000 to an enterprise within the State of New York that is
directly engaged in interstate commerce. Respondent admits,
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
I also find that the following employees of Respondent con-
stitute a unit appropriate for the purposes of collective bargain
within the meaning of Section 9(b) of the Act:2
All employees performing electrical work, as described in
“Type of Work covered by this Agreement” set forth on page
one of the 2004–2007 “residential wiring agreement” and in
Section 2.07 of the 2003–2007 “inside construction agree-
ment” within the geographic jurisdiction set forth in Article
4.08 of the same agreements between the Union and the Fin-
ger Lakes, New York Chapter of the National Electrical Con-
tractors Association.
II. ALLEGED UNFAIR LABOR PRACTICES
William Towsley has been a member of the International
Brotherhood of Electrical Workers since 1970 and has held
various offices with the Union since 1989. He has served as
business manager for Local 43 of the Union since 1997. There

2 In its answer, Respondent denies knowledge or information suffi-
cient to form a belief as to the truth of the alleged unit. It is well settled
that the Act does not require a unit for bargaining to be an appropriate
unit or even the most appropriate unit. American Hospital Assn. v.
NLRB, 499 U.S. 606, 610 (1991); Overnight Transportation Co., 322
NLRB 723 (1996). The evidence reflects that the described unit has
been designated by the Union and NECA in successive collective-
bargaining agreements. There being no evidence to the contrary, I find
the described unit appropriate for purposes of collective bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD916
are 75 employers who are currently signatory contractors with
Local 43. Of those 75 signatory contractors, 10 are owner-
operators. Towsley explained that even though an individual
owner-operator may sign a letter of assent with the Union, the
individual may perform work on his own and does not neces-
sarily hire members of the Union. The Finger Lakes New York
Chapter NECA is the management association that negotiates
collective-bargaining agreements with the Union on behalf of
the signatory employers.
A. Cirrincione’s First Contact with the Union
Towsley recalled that he first met Anthony Cirrincione in the
summer of 2000 after union organizer Bernie Coffey asked
Towsley to meet with Cirrincione and to help Cirrincione find
employment with a union contractor. Towsley met with Cirrin-
cione and arranged an interview for him with Burns Electric, a
union signatory contractor. Following Towsley’s referral,
Burns Electric hired Cirrincione as project manager estimator.
Cirrincione testified that prior to meeting with Towsley he had
been employed by a non-union contractor for approximately 2
years. He had become bored with the job and had also deter-
mined that he needed the Union’s assistance in finding a com-
pany that could afford to pay him what he wanted.
B. Cirrincione’s 2002 Contact with the Union
Cirrincione obtained his Utica, New York, Master Electri-
cian’s License in June or July 2002. Just prior to taking the
test, he was terminated by Burns Electric. At the time that he
applied for the Utica License, he also applied for the Syracuse,
New York Master Electrician’s License. Cirrincione explained
that after his termination, he became concerned about passing
the test for the Syracuse license. Because the owner of Burns
Electric was also a member of the licensing board, Cirrincione
believed that Burns might prevent his obtaining the Syracuse
license. Because of his concerns, Cirrincione contacted
Towsley who was also a member of the licensing board. Cir-
rincione recalled that the told Towsley that he needed his li-
cense and that he was worried that Burns would do something
to hurt him. Cirrincione testified:
I thought Mr. Towsley could see that I was a decent person
and that he could maybe try to keep this guy from hurting me
in any way because I was worried about again feeding my
family and the license was important for that and because of
what I had heard I was worried about it. I was sincerely wor-
ried about it.
C. Towsley’s Recollection of the August 20, 2002 Meeting
Towsley testified that after his initial meeting with Cirrin-
cione in 2000, he didn’t recall any further conversations with
Cirrincione until 2002. Towsley recalled that a short time prior
to August 20, 2002, Cirrincione telephoned him and discussed
the Master Electrician’s Examination for the city of Syracuse.
Towsley recalled that he discussed with Cirrincione the proce-
dures of the examination and also what Cirrincione should
study in advance of the examination. Towsley testified that he
did not anything to influence the scoring of Cirrincione’s ex-
amination. He explained that he could not have done so be-
cause of the scoring procedure. An applicant’s answer sheet is
graded by one licensing board member and verified by a differ-
ent licensing board member. Under the Syracuse city ordi-
nance, an applicant also has the right to review the examination
scoring upon request.
Towsley testified that on August 20, 2002, Cirrincione came
to the Union’s office and met with him. Cirrincione told him
that “it was not working out with Burns Electric” and he
wanted to open his own business. Cirrincione also stated that
he would be working alone “for awhile.” Towsley testified that
he explained to Cirrincione that he would have to sign a letter
of assent in order to become a signatory contractor. Towsley
testified that Cirrincione acknowledged that he knew about the
letters of assent, as well as about the need for his filing a bond
and the requirement for making contributions to the Union’s
trust fund. Towsley explained the requirement that Cirrincione
use the Union’s hiring hall. Towsley testified that he told Cir-
rincione that in the future, any employees that he hired would
have to be referred by the Union. Cirrincione told Towsley that
he planned to begin the business by performing all the work
himself. Later, he anticipated that he would add additional
employees when he was financially able to do so. Towsley
testified that during the meeting Cirrincione did not have any
questions about the procedures in signing the agreements and
did not ask for the opportunity to submit the letters of assent to
an attorney before signing the documents.
Respondent does not dispute that on August 20, 2002, Cir-
rincione signed two letter of assent authorizing the Finger
Lakes New York Chapter of the NECA, or otherwise referred
to in this decision as NECA, as its collective-bargaining repre-
sentative for all matters contained in or pertaining to the current
and any subsequent residential and inside labor agreements
between the NECA and the Union. The letters of assent further
provide that by signing the agreement, the employer is bound
by all the provisions contained in the current and subsequent
labor agreements between the Union and the NECA. By its
terms, the agreement remains in effect until terminated by the
employer giving written notice to the NECA and to the Union
at least 150 days prior to the current anniversary date of the
applicable labor agreement. Towsley testified that the informa-
tion concerning the name, address, and Federal employer iden-
tification number for Respondent, as well as Cirrincione’s name
and title, were provided by Cirrincione and typed onto the form
by Towsley’s secretary, Janice Lincoln. Towsley testified that
he told Cirrincione on August 20 that copies of the agreement
would not be available until after approved by the International.
Towsley did, however, give Cirrincione copies of the existing
Inside Construction Agreement between the NECA and the
Union as well as the Residential Wiring Agreement between
the NECA and the Union. On August 28, 2002, the Union sent
Respondent copies of the executed letters of assent that had
been approved on August 26, 2002.
Towsley explained that under the terms of the collective-
bargaining agreement with NECA, the Union requires verifica-
tion of liability insurance, compensation insurance, and work-
ers’ compensation insurance. The insurance coverage must be
in effect as soon as possible after an employer signs a Letter of
Assent. No employees can be referred to the employer without
verification of the insurance coverage. On August 21, 2002,
POSITIVE ELECTRICAL ENTERPRISES, INC. 917
the Union received a Certificate of Liability showing that Re-
spondent had the requisite commercial general liability insur-
ance as required by a signatory employer and as discussed with
Cirrincione on August 20, 2002. Cirrincione acknowledged
that after he met with Towsley on August 20, he contacted his
accountant and asked for information concerning his getting a
bond as requested by the Union. He recalled that his account-
ant explained to him that the bond was like getting insurance.
If he were unable to pay the wages or benefits to employees,
the bond would “step in and take over and protect the Union.”
He admitted that he secured the bond shortly after his signing
the letters of assent.
D. Cirrincione’s Testimony Concerning his August 20,
2002 Meeting with Towsley
Cirrincione testified that after his passed his examination for
the Syracuse Master Electrician’s License, Towsley telephoned
him to congratulate him on the results. He recalled that
Towsley also asked him to visit him at his office. Cirrincione
acknowledged that while in Towsley’s office he signed the
letters of assent. Cirrincione maintained that he did so because
he felt obligated to Towsley. Cirrincione testified that Towsley
never explained to him that by signing the documents, he could
not use nonunion labor. He also testified that he told Towsley
that he could not afford to pay union labor because he was just
starting his business. Cirrincione asserted that Towsley told
him that he could build up his business and when he was ready
Towsley would help him “to get people on board.” Cirrincione
testified that Towsley did not ask him if he understood what he
was signing or ask him to have an attorney look over the docu-
ments. Cirrincione acknowledged, “I just have to say I was
stupid.” He also asserted that he signed the documents because
he didn’t want enemies starting out in his new business. He
testified: “I didn’t want any enemies, especially someone as
connected and known as Mr. Towsley. I didn’t want to make
an enemy of him. I felt obligated and so I signed it.”
E. The Union’s Contacts with Respondent in 2003
and Early 2004
On January 21, 2003, Towsley sent a written memorandum
to all signatory contractors and included a copy of a new form
that was to be used for requesting manpower from the Union.
On April 29, 2003, Towsley sent a letter to Respondent advis-
ing of the new wage rates and fringe benefit contributions that
were effective through May 31, 2004. Respondent does not
deny receipt of either correspondence. There is no evidence
that Cirrincione responded to either correspondence or at any
time notified the Union that such correspondence was not ap-
plicable to his business.
Union organizer Thomas Kurak testified that he first met
Cirrincione during late 2003 or early 2004. He explained that
part of his job as an organizer is to periodically check with new
contractors to inquire as to whether they need any help with
their business. He went on to add that the Union has found that
while it is good to organize contractors, it is also important to
pay attention to them and try to help them or they may other-
wise revert to nonunion contractors. Kurak described his visit
to Cirrincione as simply a courtesy call. Other than Cirrin-
cione, Kurak observed only one other individual at Respon-
dent’s facility. The young man that he observed was wearing a
sweatshirt and sneakers and displayed neither tools nor any-
thing else that would distinguish him as an electrician. During
Kurak’s visit, Cirrincione spoke about his former work in New
York City and described his current work as residential. He did
not indicate that he was employing any employees.
Approximately 6 to 8 weeks later, Kurak returned for a sec-
ond visit to Cirrincione’s office, accompanied by union organ-
izer Bernie Coffey. Kurak saw the same young man as he had
seen on his previous visit. Again, the young man was not wear-
ing a tool belt or carrying any tools. After the visit, Coffey told
Kurak that the young man had previously been employed as a
truck driver for an electrical company in Utica, New York.
Kurak testified that during this second visit to Cirrincione’s
office, there was nothing said to indicate that Cirrincione had
hired employees or planned to hire employees in the future.
F. The Union Learns that Respondent has not Followed
the Agreement
Towsley testified that all written notices of contract termina-
tion are forwarded to him for response. It is undisputed that as
of the date of the hearing, Respondent has never submitted a
written notice of its intent to terminate the collective-bargaining
agreements. It is also undisputed that since signing the agree-
ments on August 20, 2002, Respondent has neither requested
referrals for employees through the Union’s hiring hall nor
submitted any reporting forms to the Union. The reporting
forms provide information to the Union concerning the names
of employees, classifications of employees, rates of pay, hours
worked, and the working assessment deductions for employees
during the month. Respondent does not dispute that it has
failed to make any “fringe benefits” contributions to the Union
or to remit any union dues to the Union.
On June 14, 2004, Towsley received a letter notifying the
Union of Respondent’s request to cancel the bond providing
indemnity to the Union. Towsley testified that the bond is the
security that ensures that if fringe benefits are not paid to em-
ployees by the employer, there is a resource for payment to the
employees. Towsley explained that such a notification raises a
“red flag” that an employer is having financial problems, going
out of business, or otherwise violating the collective-bargaining
agreement. In response, Towsley instructed Kurak to investi-
gate Respondent’s current jobs and their locations.
Kurak testified that in August or September 2004, he visited
the Syracuse construction site for the Christmas Tree Store.
When he arrived, he noticed a construction trailer that was
“hooked up” for temporary electrical service. He observed
Cirrincione directing three men on the installation of the ser-
vice. The men were wearing lime green shirts bearing Respon-
dent’s name. Kurak did not recognize any of the men who
were working for Cirrincione. He explained that at the time he
did not believe that they were union members because their
members would be reluctant to wear such shirts and to work
without hardhats.
Three or 4 days after seeing Cirrincione at the construction
site, Kurak visited Cirrincione’s offices in Mattydale. When
Kurak mentioned that he had seen Cirrincione on the job, Cir-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD918
rincione acknowledged that he was the electrical general con-
tractor for the job and that he had bid the job for between
$230,000 and $250,000. After Kurak reported this information
to Towsley, Kurak contacted the head inspector for the city of
Syracuse to inquire if Cirrincione had requested any other per-
mits during the previous year. Kurak obtained copies of ap-
proximately a dozen permits requested by Cirrincione during
the specified time period. Kurak acknowledged, however, that
the majority of the jobs were service-oriented jobs, requiring
minimal work. One of the jobs, however, involved work on a
medical building. Kurak estimated that based upon the amount
of work involved, the job would probably have paid between
$20,000 to $30,000.
Cirrincione acknowledged that for the period of time be-
tween July 1, 2002, and January 6, 2005, he performed ap-
proximately 400 jobs within the geographical jurisdiction of the
Union and the majority of the jobs involved electrical work.
Respondent’s quarterly State Report of Wages for the quarter
ending September 30, 2002, reflects that Respondent paid
David Quigg $300 in wages. Cirrincione recalled that he paid
Quigg approximately $7 or $8 an hour for his work as an elec-
trician’s helper. Cirrincione further acknowledged that he also
paid wages to Quigg for electrical work for the period of time
between September 30 and November 24, 2002. Geoffrey
Grow received wages for electrical work for the period between
October 21 and November 24, 2002. Cirrincione further con-
firmed that he also employed individuals to perform electrical
work during the first, second, and fourth quarters of 2003.3
Admittedly, Cirrincione paid 20 individuals to perform electri-
cal work during 2004. Cirrincione determined their individual
rates of pay by their interview and the amount of time worked
on the job. Cirrincione did not deny that he failed to request
employees through the hiring hall. He also admitted that he
neither filed any reporting forms to the Union nor made any
union trust fund contributions. There is no dispute that union
dues were never remitted to the Union.
III. FACTUAL AND LEGAL CONCLUSIONS
There is no factual dispute that on August 20, 2002, Respon-
dent signed letters of assent authorizing NECA as its collective-
bargaining representative for all matters contained in or pertain-
ing to the current and nay subsequent approved residential or
inside labor agreements between NECA and the Union. The
signed agreements provide that Respondent agrees to comply
with, and be bound by, all of the provisions contained in the
current and subsequent approved labor agreements and such
authorization remains in effect until Respondent provides writ-
ten notice to NECA and the Union at least 150 days prior to the
current anniversary date of the applicable labor agreement.
While Respondent does not deny that subsequent to signing
these agreements, it has not followed the terms of these agree-
ments, Respondent has not attempted to withdraw from its bar-

3 GC Exh. 19 reflects that both Douglas Morey and David Quigg
were employed during the second quarter of 2003. GC Exh. 20 reflects
that Respondent employed David Quigg and David Gaiser during the
second quarter of 2003. GC Exh. 21 reflects that Respondent employed
David Gaiser, Douglas Morey, David Quigg, and Mathew Wilcox to do
electrical work during the fourth quarter of 2003.
gaining obligation under the terms of the agreement. The
Board has determined that employers who voluntarily enter into
an 8(f) relationship with a union by executing a letter of assent,
are bound to current and successive collective-bargaining
agreements between the Union and a multiemployer group or
association, in the absence of a timely withdrawal from the
association. P & C Lighting Center, 301 NLRB 828, 832
(1991); Riley Electric, 290 NLRB 374, 375 (1988); and City
Electric, 288 NLRB 443, 445 (1988). Despite its execution of
the letters of assent, however, Respondent maintains that it has
not violated the Act. As set forth below, I do not find merit to
Respondent’s arguments.
A. Respondent’s Argument of Section 10(b) of the Act,
Waiver, and/or Estoppel
Respondent argues that by virtue of the letters of assent, it
promised to pay union scale wages and benefits as well as
promised to remit union dues and to obtain employees through
the Union’s exclusive hiring hall. Respondent asserts, how-
ever, that because of the Union’s misrepresentations, it had no
intention of abiding by the terms of the letters of assent. Re-
spondent contends that the Union had actual or constructive
notice prior to March 2, 2004, that it had repudiated the letters
of assent.
Section 10(b) of the Act provides that a complaint may not
issue based upon any unfair labor practice occurring more than
6 months prior to the filing of the charge with the Board. See
29 U.S.C. § 160(b). The Board has found, however, that this
limitations period does not begin to run until the charging party
has “clear and unequivocal notice,” either actual or construc-
tive, of a violation of the Act. Leach Corp., 312 NLRB 990,
991 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995). The Board has
also looked to whether the charging party should have become
aware of a violation in the exercise of reasonable diligence.
Moeller Bros. Body Shop, 306 NLRB 191, 192–193 (1992).
The burden of showing such clear and unequivocal notice rests
with the party raising the affirmative defense of Section 10(b).
California Portland Cement Co., 330 NLRB 144 (1999); Chi-
nese American Planning Council, 307 NLRB 410, 410 (1992).
Respondent takes the position that because it clearly repudi-
ated the contract outside the 10(b) period, the Union is barred
from recovery. In its decision in St. Barnabas Medical Center,
343 NLRB 1125, 1128 (2004), the Board noted that when an
alleged unfair labor practice may be characterized as a contract
repudiation, the unfair labor practice occurs at the moment of
the repudiation, and the 10(b) period begins to run at the mo-
ment the union has clear and unequivocal notice of that act. All
subsequent failures of the respondent to honor the terms of the
agreement are considered to be consequences of the initial re-
pudiation. The Board went on to explain that by contrast, cases
are not barred by 10(b) where the respondent has not given
clear notice of total contract repudiation outside the 10(b) pe-
riod, but has simply breached provisions of the collective-
bargaining agreement. As discussed more completely below, I
do not find that the Union had clear and unequivocal notice of
Respondent’s contract repudiation outside the 10(b) period.
Respondent argues that when Cirrincione met with Towsley
on August 20, 2002, he told Towsley that he was not able to
POSITIVE ELECTRICAL ENTERPRISES, INC. 919
pay union labor because he was just starting his company.
Cirrincione testified that despite the fact that he signed the let-
ters of assent, he “made it perfectly clear” to Towsley that he
had no intention of hiring union employees. Notwithstanding
Cirrincione’s assertions, he also admits that after meeting with
Towsley, he secured the bond and certificate of insurance as
requested by Towsley and designated the Union Trust Funds as
the beneficiary. Thus, while Cirrincione may have told
Towsley that he was not financially ready to begin hiring at that
time, his actions otherwise communicated that he was comply-
ing with the terms of the agreement.
Respondent also relies upon the testimony of David Gaiser to
demonstrate that the Union had knowledge that Respondent
was not using union labor. Gaiser testified that he first inter-
viewed with Cirrincione in late June or early July 2000. Al-
though Cirrincione kept his telephone number and resume, he
told Gaiser that his business was still too small to hire him at
that time. In 2001, Gaiser applied for the Union’s apprentice-
ship program that was scheduled to begin in 2002. At the time
of his application, Gaiser was working as a truckdriver for
Engler Electric, a union contractor in Utica, New York. Gaiser
testified that in late October 2002, he ran into a friend who told
him that he was working for Respondent at the Dollar Tree
worksite in New Hartford, New York. Although he went to see
Cirrincione the next day, Cirrincione told him that he was not
hiring at that time. Gaiser recalled that union organizer Bernie
Coffey usually visited Engler Electric about twice a month.
Approximately a week or 2 weeks after talking with Cirrin-
cione, Gaiser saw Coffey when he visited Engler Electric and
he told Coffey that Cirrincione had hired his friend on the Dol-
lar Tree job but had not hired him. Gaiser acknowledged, how-
ever, that at the time that he made these comments to Coffey,
Coffey was preoccupied and simply turned away and walked up
the stairs to the office without responding.
Gaiser was later hired to work for Respondent as an electri-
cian on April 21, 2003. Gaiser recalled that Bernie Coffey and
another individual visited Respondent’s office around late June
or early July 2003. At the time they arrived, he was unloading
a truck and simply spoke to them as they walked by him.
Having considered the testimony in its entirety, I do not find
that Gaiser’s testimony demonstrates that the Union was given
clear and unequivocal notice of Respondent’s repudiation of the
contract. Even though Gaiser asserts that he told Coffey about
Respondent’s hiring his friend, Gaiser admits that Coffey was
preoccupied and walked away from him without responding.
Additionally, I note that even if Coffey heard Gaiser’s com-
ment, the alleged comment as described by Gaiser did not indi-
cate whether Respondent was using union or nonunion labor.
When asked how he began the conversation Gaiser testified:
Yeah, I mean general conversation, like, “Hi, how you do-
ing?” and “How’s everything going?” And then I brought that
fact up that Anthony was doing the Dollar Tree job in New
Hartford and he had hired my friend and I had gone and he
didn’t have any work for me.
Based upon Gaiser’s alleged comments, there would have
been no basis for Coffey to assume that Respondent was using
nonunion labor or doing anything contrary to the terms of the
existing labor agreements. There would have been no reason
for Coffey to report this comment to Towsley or to make any
independent search or inquiry as to whether Respondent was
paying union wages or making trust fund contributions. Addi-
tionally, I don’t find Gaiser’s presence at Respondent’s offices
in June or July 2003 as clear and unequivocal notice of Re-
spondent’s repudiation of the agreement. Admittedly, Gaiser
did nothing more than simply speak to Coffey and Kurak as
they walked by him on the way into Cirrincione’s office. At
the time the union representatives saw Gaiser, he was unload-
ing a truck. Inasmuch as Coffey had only known Gaiser in his
capacity as a truckdriver for another union contractor, Gaiser’s
unloading a truck would not have indicated that he was per-
forming electrical work within the terms of the existing collec-
tive-bargaining agreement. I credit Kurak’s testimony that
Coffey simply identified Gaiser as a truckdriver for a contractor
in Utica.4 Neither Gaiser nor Cirrincione testified that they
informed Coffey or Kurak that Gaiser was working as an elec-
trician for Respondent. Thus, neither Gaiser’s alleged com-
ments to Coffey at Engler Electric nor his presence at Respon-
dent’s facility in 2003 constituted sufficient evidence of clear
and unequivocal repudiation of the agreement.
Respondent also asserts that Kurak and Coffey’s conversa-
tions with Cirrincione at his office provided sufficient notice of
contract repudiation. The credible record evidence, however,
does not support such a finding. Firstly, Cirrincione testified
that during Kurak’s visit to his office in April 2003, he told
Kurak that he was not hiring union labor. Cirrincione also
maintained that he told Kurak that all of the jobs that he had bid
had been nonunion and that he would have lost money if he had
paid union labor. Cirrincione did not indicate Kurak’s response
to his alleged statement. By contrast, Kurak testified that dur-
ing this conversation, Cirrincione told him that he had only
been involved in residential work and he did not indicate using
any employees for that work. Kurak also testified that if he had
known that a signatory contractor hired employees independent
of the referral procedure, he would have notified Towsley. He
explained that he would have lost his job if he had not done so.
In considering the overall testimony, I credit Kurak’s recall of
the conversation. It is implausible that Kurak would have made
no response if Cirrincione had told him that he was using non-
union labor. The overall evidence reflects that Cirrincione
declined any assistance from Kurak and represented his work as
small enough to not require a referral for additional electricians.
Cirrincione testified that when Coffey and Kurak visited his
office in June or July 2003, he had been working on a bank job
in Liverpool, New York. He recalled that they asked him if he
needed any workers on the job. Admittedly, Cirrincione told
them that only he and Gaiser were working on the job and that
he did not need any additional workers. As discussed above,
there is no evidence that Cirrincione or Gaiser said anything to
indicate that Gaiser was working as an electrician. Because

4 Kurak testified that when he had previously visited Cirrincione’s
office, he had also seen Gaiser. At that time, Gaiser was wearing a
sweatshirt and sneakers. He was not wearing a tool belt or doing any-
thing that would indicate that he was involved in performing electrical
work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD920
Coffey knew that Gaiser had worked as a truckdriver for an-
other union contractor, there was no reason for Kurak or Coffey
to conclude that Cirrincione was using nonunion electricians on
this or any other job.
Respondent also asserts that the Union was put on notice of
its failure to abide by the contract by Respondent’s advertise-
ments for electricians. Respondent contends that it placed ads
in the Syracuse newspaper in January, April, and December
2003, and again in 2004. The ad, however, did not include
Respondent’s name. The ad simply included:
ELECTRICIANS. must have own tools & experience good
pay. Please call 455–0146 or fax resume 455–7416
Cirrincione testified that sometime after the first article ap-
peared in the paper, he received a telephone call from Kurak.
Cirrincione asserted that when Kurak asked if he needed any
employees, Cirrincione replied that he was “not hiring any
union workers at this time.” Cirrincione did not testify, how-
ever, that Kurak said anything in the conversation to indicate
that he had seen the newspaper ad or that he was in any way
aware that Cirrincione had placed an ad for electricians. Kurak
denied that he ever saw Respondent’s newspaper ad seeking
electricians. Kurak testified that had he been aware of such an
ad, he would have notified Towsley. Respondent also submit-
ted into evidence Respondent’s ad in the classified index from
the telephone directory. While the ad indicates that Respondent
is a licensed electrical contractor, there is nothing in the ad to
demonstrate that Respondent was functioning as a union or
nonunion contractor. Respondent also asserts that during the
relevant time period, it utilized the Internet to advertise its
business. There is no indication, however, that such advertise-
ment indicated that Respondent was using nonunion labor or
otherwise functioning as a nonunion contractor.
In its argument that the Union had notice of the contract re-
pudiation, Respondent also relies upon Respondent’s having
secured certain work permits and upon Respondent’s having
performed work that was categorized as “public work.” Cirrin-
cione testified that he applied for, and received, approximately
14 permits from the city of Syracuse in 2003. As an example
of having bid on and having performed work that was consid-
ered to be a “public work,” Respondent submitted invoices for
work performed on the Utica Public Library in March 2003 in
the amount of $9250 and in September 2003 in the amount of
$1075.5 Respondent asserts that both jobs were publicly bid.
On further examination, however, Cirrincione conceded that he
had been the only electrician performing work on both of these
jobs.
In Baker, Inc., 317 NLRB 335, 340 (1995), the Board dealt
with the issue of whether an 8(f) prehire letter of assent and

5 Respondent contends that it is significant that Respondent per-
formed “public work” jobs in excess of $2500 because all public work
jobs in excess of $2500 are listed in a publication known as the
“Dodge” service. Towsley testified that he receives and reads copies of
the Dodge report. He credibly testified, however, that he did not recall
having ever seen Cirrincione or Respondent listed in the report.
Towsley explained that had he seen any reference to Cirrincione or
Respondent, he would not have thought anything about it because he
considered Respondent as a signatory contractor.
benefit fund agreement were enforceable after the employer
failed to honor them for a substantial number of years and hired
employees without calling the union for referrals as required.
Specifically, although the sole proprietor employer signed the
letter of assent in October 1976, the employer never asked the
union for referrals, never made contributions to the benefit
funds, and never paid the union wages or applied the other
terms of the NECA-union agreement. When the union con-
tacted the employer in 1976 and 1977 to determine whether he
needed referrals from the union’s hiring hall, the employer
declined and promised that he would use the hiring hall when
and if he needed electricians. The first time that the union be-
came aware that the employer was hiring employees was in
September 1993, The Board affirmed the administrative law
judge in finding that the 8(f) agreement was enforceable despite
the passage of time. The administrative law judge noted that
there was no reason for the union to suspect that the employer
was reneging on the agreement or that he was operating a non-
union shop. The administrative law judge also found that the
employer’s appearance on the Dodge report did not provide
sufficient notice under the circumstances of the case. In Ne-
shoba Construction Co., 305 NLRB 100, 101 (1991), the em-
ployer failed for 14 years to abide by its 8(f) agreement before
the union observed employees on the job. In Neshoba, supra,
the Board affirmed the administrative law judge’s finding that
there was insufficient notice under Section 10(b), even though
the employer had 20 jobs as a prime contractor or subcontractor
during the 14-year period. The work was covered by the col-
lective-bargaining agreement with projects ranging from
$100,000 to $2,328,000 within the union’s geographical juris-
diction.
Despite its assertions, Respondent did not put the Union on
notice of its repudiation of the agreement. Respondent was a
small operation and one of 75 signatory contractors. Towsley
testified that the number of projects and mobility of the con-
struction force makes it impossible for the Union to monitor
each of the contractor’s activities. He testified that on any
given day, he would not know where all 1250 members were
working. Cirrincione acknowledges that when he signed the
letters of assent, he told the Union that he would initially work
on his own and he would not need any other electricians. Al-
though Kurak checked with Cirrincione on a number of occa-
sions, Cirrincione continued to tell him that he did not need a
referral for employees. Just as in Baker Electric, supra at 345,
the Union had no reason to assume that Respondent was using
nonunion labor. It was not until Respondent canceled its bond
in June 2004, that the Union realized that additional investiga-
tion was necessary. When the Union determined that Respon-
dent was involved in more substantial work than had been rep-
resented and that Respondent was employing nonunion em-
ployees, a timely charge was filed.
Respondent cites two specific Board decisions in arguing
that a union is required to exercise reasonable diligence in
monitoring an employer and that the employer will be charged
with constructive knowledge of what it would have learned had
it exercised such diligence. In its decision in Moeller Bros.
Body Shop, 306 NLRB 191 (1992), the Board found the union
chargeable with constructive knowledge because of its failure
POSITIVE ELECTRICAL ENTERPRISES, INC. 921
to exercise reasonable diligence by which it would have learned
much earlier of the employer’s contractual noncompliance. In
that case, the Board found that mere observation would have
put the union on notice of the employer’s noncompliance.6 In
Mathews-Carlsen Body Works, Inc., 325 NLRB 661 (1998), the
Board found evidence that the union knew that the employer
had hired employees but had not reported them to the union or
to the benefit trust funds. Not only did the union representative
admit that he had known that the employer hired “sleepers,” but
there was additional evidence that the representative observed
these employees at the employer’s facility and solicited their
membership in the union. I find the facts of these cases distin-
guishable from the circumstances in issue. The credible evi-
dence in this case demonstrates that the Union had no basis to
conclude that Respondent was hiring employees who would
have been covered by the collective-bargaining agreement.
While Gaiser was observed at the Respondent’s facility, he was
not known by the Union to be a member of the bargaining unit
and there is no evidence that he did anything to indicate that he
was working as an electrician. Thus, even though the Union
had contact with Respondent, there was no indication that Cir-
rincione was doing anything other than working alone as he
initially represented to the Union. Accordingly, I do not find
that the Union had either actual or constructive notice of Re-
spondent’s noncompliance or repudiation of the agreement
outside the 10(b) period and thus the charge is not barred by
10(b) of the Act.
B. Respondent’s Argument of Duress, Undue Influence,
Misrepresentation, and Fraud
In posthearing brief, counsel for Respondent argues that Re-
spondent cannot be bound by the letters of assent, citing a
number of contract defenses discussed in various court deci-
sions. Respondent includes a number of court cases dealing
with the issue of “undue influence” with respect to the enforce-
ability of contracts in various matters unrelated to labor agree-
ments. Citing the court’s decision in Hellenic Lines, Limited v.
Louis Drefus Corp., 372 F.2d 753 (2d Cir. 1967),7 Respondent
argues that pressure must be improper and excessive in going
beyond what is reasonable in the circumstances in order to
constitute either duress or undue influence. Respondent also
cites a Fifth Circuit Court of Appeals decision in Lee v. Hunt,

6 The union official testified that he had assumed that the employer
was a small shop because it never reported more than four employees
on its fringe benefit reporting forms. The administrative law judge,
whose decision was affirmed by the Board, found that the union had
tended to ignore the employees during its period of representation. The
union did not appoint a steward even though the contract gave it the
right to do so and the union representatives did not visit the shop to
determine the needs of the employees. The Board found that if the
union had exercised reasonable diligence, it would have learned that the
employer was not paying fringe benefit fund payments for certain em-
ployees and was not paying contractually required wages for other
employees.
7 The case came before circuit court of appeals as an appeal from the
District Court granting a petition to compel arbitration of a commercial
dispute involving a bill of lading.
631 F.2d 1171 (5th Cir. 1980),8 wherein the court noted “In
order to prove undue influence, one must demonstrate that per-
suasion, entreaty, importunity, argument, intercession, and
solicitation were so strong as to subvert and overthrow the will
of the person to whom they are directed.”
The total record evidence does not establish that Cirrincione
signed the letters of assent because of duress. Cirrincione ad-
mits that at the time that he signed the letters, he had already
passed his test for the city of Syracuse license. Admittedly, he
had already sought Towsley’s help twice and there is no evi-
dence that Towsley required anything in return for his assis-
tance. Cirrincione acknowledged that in response to his request
for assistance, Towsley assisted him in obtaining the job with
Burns Electric. There is no evidence that Towsley required any
reward or recompense for doing so. Interestingly, Cirrincione
had been working for a nonunion contractor and there is no
evidence that Cirrincione had any past affiliation with the Un-
ion. When Cirrincione again requested Towsley’s counsel with
respect to the licensing examination, there is no evidence that
Towsley asked for any compensation from Cirrincione. Cirrin-
cione, in fact, testified that he trusted Towsley and considered
him to be his friend. Cirrincione testified that Towsley kept his
promise to help him because Burns was then unable to stop him
from obtaining his license. Cirrincione explained: “I felt kind
of obligated.” It is undisputed that Cirrincione continued to ask
for assistance from the Union and yet there is no evidence of a
prior affiliation or a relationship. It is certainly reasonable that
Cirrincione would have felt indebted to Towsley for his con-
tinuing assistance. A sense of indebtedness or even obligation
certainly does not rise to the level of coercion that would con-
stitute duress.
In explaining the circumstances of having signed the letters
of assent, Cirrincione asserted that while he had been “hesi-
tant,” he had felt obligated and had not wanted to make an en-
emy of Towsley. Cirrincione did not, however, testify that
Towsley asked him to sign the letters of assent because of
Towsley’s assistance to him in passing the Master Electrician’s
examination. Moreover, while Cirrincione implied that he
signed the letters of assent at Towsley’s request, he does not
actually explain how the letters of assent came to be discussed
during his visit with Towsley.
Respondent cites court cases for the proposition that “fraud
in the inducement” renders a contract voidable and capable of
rescission. Respondent argues that by contrast, “fraud in the
execution” induces a party to believe that the nature of his act is
something entirely different than it actually is, thus, rendering
the contract void from its inception. Citing Iron Workers Local
25 Pension Fund v. Allied Fence & Security Systems, 922
F.Supp. 1250, 1259 (E.D. Mich. 1996), respondent acknowl-
edges: “This defense, however, arises only where a party nei-
ther knows, nor has reasonable opportunity to know of the
character or essential terms of the proposed contract.” The case
upon which Respondent relies involved a trust fund action
against an employer who had failed to make fringe benefit con-
tributions to funds pursuant to a collective-bargaining agree-

8 This case involved a lawsuit brought against an estate executor by
a decedent’s alleged putative wife.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD922
ment. The employer alleged that it signed the collective-
bargaining agreement, believing that it was a temporary permit
that would allow the employer to perform a “union” job. The
Court found that the employer’s ample opportunity to review
the collective-bargaining agreement before signing it defeated
the employer’s attempt to rely on a “fraud in the execution”
defense. The court noted that any alleged misrepresentation by
the union did not significantly undermine the employer’s ability
to ascertain the true nature of the document provided and that
the employer’s failure to read the 26-page document did not
constitute excusable negligence. I find that in the instant case
there is even less evidence that would support a “fraud in the
execution” defense. The two letters of assent signed by Cirrin-
cione were one-page documents. The following language was
printed double spaced and contained on the first nine lines of
each letter:
In signing this letter of assent, the undersigned firm does
hereby authorize Finger Lakes New York Chapter NECA as
its collective bargaining representative for all matters con-
tained in or pertaining to the current and any subsequent ap-
proved residential (or inside) labor agreement between the
Finger Lakes New York Chapter NECA and Local Union 43,
IBEW. In doing so, the undersigned firm agrees to comply
with, and be bound by, all of the provisions contained in said
current and subsequent approved labor agreements. This au-
thorization, in compliance with the current approved labor
agreement, shall become effective on the 20 day of August
2002. It shall remain in effect until terminated by the under-
signed employer giving written notice to the Finger Lakes
New York Chapter NECA and to the Local Union at least one
hundred fifty (150) days prior to the then current anniversary
date of the applicable approved labor agreements.9
Cirrincione admitted that he read the letters of assent. When
asked by his attorney what he thought the above language
meant, he only replied: “I’m smart when it comes to electrical
but when it comes to legal stuff I’m not very smart.” He did
not, however, recall whether he asked Towsley if he could have
an attorney review it. He admitted that after signing the docu-
ments, he never consulted an attorney concerning the legal
consequences. While Cirrincione testified that he did not un-
derstand what the papers were that he was signing, he did not
assert that he asked any questions or requested any explanation.
There is no dispute that Cirrincione provided his name, address,
title, and Federal employer identification number to the Union
for the Union’s secretary to type the information on the letters
of assent. I find it totally incredible that he provided the infor-
mation to the Union, read the letters, and then signed the letters
of assent, and yet had no understanding of what he was signing.
Such alleged conduct is totally inconsistent with that of a busi-
nessman operating a commercial business enterprise. Accord-
ingly, I find no credible evidence of any fraud in the execution
of the contract.
Cirrincione contended that Towsley never told him about the
“four-year contract” or that by signing the letters, he could not

9 The underlined wording was typed into the document identified at
the bottom as IBEW form 302.
use nonunion labor. He went on to acknowledge, however, that
when he told Towsley that he was just starting his business,
Towsley told him that whenever he was ready to hire men,
Towsley would help him. Clearly, despite Cirrincione’s claim
that there was no discussion about hiring procedures pursuant
to the letters of assent, his own testimony reflects otherwise.
Overall, I do not find Cirrincione’s testimony to be credible.
As both counsel for the General Counsel and counsel for the
Union point out in their posthearing briefs, Respondent’s claim
of duress and fraud is suspect when it is first alleged after the
Union filed charges and more than 2 years after the alleged
intimidation. See Service Employees Local 32-B-32J (Austin
Gardens), 326 NLRB 1256 (1998). Respondent’s untimely
assertions appear to be more of an after-thought offered to jus-
tify Cirrincione’s undisputed actions.
Accordingly, based upon the total record evidence, I find that
Cirrincione, on behalf of Respondent, voluntarily and know-
ingly signed the letters of assent, binding Respondent to the
terms of the collective-bargaining agreements. Respondent,
thereafter, failed and refused to abide by any of the terms of the
agreements in violation of Section 8(a)(5) and (1) of the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing since August 20, 2002, to adhere
to the terms of the June 1, 2002, through May 31, 2003 NECA-
Union “residential wiring agreement” and the June 1, 2000,
through May 31, 2003 NECA-Union “inside construction
agreement” and all successive labor agreements between
NECA and the Union, Respondent has violated Section 8(a)(5)
and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices 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.
In order to remedy the 8(a)(5) and (1) violations, Respondent
must comply with the exclusive hiring hall provisions and other
terms and conditions of employment in the current NECA resi-
dential and inside wiring agreements, and to offer full and im-
mediate employment to those individuals on the Union’s out-
of-work list who, on and since August 20, 2002, were denied an
opportunity to work for Respondent because of its failure and
refusal to comply with the hiring hall provisions in J. E. Brown
Electric, 315 NLRB 620 (1994). Additionally, for the period
beginning August 20, 2002, Respondent should make whole
employees in the bargaining unit, as well as those employees
who were denied the opportunity to work, for any losses suf-
fered as a result of its failure to abide by the applicable NECA
inside or residential agreements as provided for in R. L. Res-
inger Co., 312 NLRB 915 (1993), and Williams Pipeline Co.,
315 NLRB 630 (1994). Respondent should also be ordered to
POSITIVE ELECTRICAL ENTERPRISES, INC. 923
make whole these employees and individuals by making all
required fringe benefit contributions that have not been made
since August 20, 2002, including any additional amounts due
the funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979), and by reimbursing the em-
ployees and individuals for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1979), enfd. mem.
661 F.2d 940 (9th Cir. 1981). All payments to employees
should be computed in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest, as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Positive Electrical Enterprises, Inc., Matty-
dale, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to comply with the hiring hall provisions and
the terms and conditions of employment in the current NECA-
Union “inside construction agreement” and “residential wiring
agreement.”
(b) In any like or related manner restraining or coercing em-
ployees 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) Comply with the terms and conditions of the current
“residential wiring agreement” and “inside construction agree-
ment” between the Union and the Finger Lakes, New York
Chapter, National Electrical Contractors Association.
(b) For the period beginning August 20, 2002, make whole
its employees in the bargaining unit, as well as those individu-
als who were denied an opportunity to work, for losses suffered
as a result of its failure to adhere to the “residential wiring
agreement” and the “inside construction agreement” since Au-
gust 20, 2002; reimburse them for any expenses ensuing from
its failure to make required contributions to the benefits funds;
and make whole the benefit trust funds for losses suffered, in
the manner set forth in the remedy section of the decision.
(c) Offer full and immediate employment to those hiring hall
applicants who were denied the opportunity to work for Re-
spondent since August 20, 2002, because of Respondent’s fail-
ure to comply with the hiring hall provisions in the “resident
wiring agreement” and with Union and the “inside construction
agreement” with the Union.
(d) 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 re-

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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
cords, timecards, personnel records and reports, and all other
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 fa-
cility in Mattydale, New York, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 employees employed by the
Respondent at any time since August 20, 2002.
(f) 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.
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 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, during the terms of the 2003–2007 inside con-
struction and 2004–2007 residential wiring agreements, repudi-
ate the agreement between the Finger Lakes, New York Chap-
ter of the National Electrical Contractors Association and the
International Brotherhood of Electrical Workers, Local Union
43, the exclusive collective-bargaining representative of our
employees in the following appropriate unit:
All employees performing electrical work, as described in
“Type of Work Covered by this Agreement” set forth on page
one of the 2004–2007 “residential wiring agreement” and in
Section 2.07 of the 2003–2007 “inside construction agree-
ment” within the geographic jurisdiction set forth in Article

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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD924
4.08 of the same agreements between the Union and the Fin-
ger Lakes, New York Chapter of the National Electrical Con-
tractors Association.
WE WILL NOT refuse to comply with the hiring hall and other
terms and conditions of employment in the “residential wiring”
and “inside construction” collective-bargaining agreements
with the International Brotherhood of Electrical Workers, Local
Union 43.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL comply with all of the provisions of the 2004–2007
“residential wiring agreement” and the 2003–2007 “inside con-
struction agreement” between the Finger Lakes, New York
Chapter of the National Electrical Contractors Association and
the International Brotherhood of Electrical Workers, Local
Union 43, including the wage, fringe benefit, and hiring hall
provisions of the agreements.
WE WILL offer full and immediate to any individual who
would have been hired through the Union’s hiring hall since
August 20, 2002 and WE WILL make them whole for any loss of
earnings and other benefits they may have suffered by reason of
our failure to hire them, with interest.
WE WILL make whole our employees, any individuals who
would have been hired through the Union’s hiring hall since
August 20, 2002, and the appropriate contractual benefit funds
for any losses they may have suffered as a result of our failure
to adhere to the collective-bargaining agreements in effect be-
tween the Finger Lakes, New York Chapter of the National
Electrical Contractors Association and the International Broth-
erhood of Electrical Workers, Local Union 43 since August 20,
2002.
POSITIVE ELECTRICAL ENTERPRISES, INC.