Rappazzo Electric Co., Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1986

281 N.L.R.B. 471 (N.L.R.B. 1986)

RAPPAZZO ELECTRIC CO.
Rappazzo Electric Co ., Inc. and Local Union 724,
International Brotherhood of Electrical Work-
ers, AFL-CIO. Case 3-CA-11871
16 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 13 February 1986 Administrative Law Judge
Jesse Kleiman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party each
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions 1 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Rappazzo
Electric Co., Inc., Albany, New York, its officers,
agents, successors , and assigns, shall take the action
set forth in the Order.
We agree with the judge that deferral to arbitration is inappropriate
in this case . We note that, contrary to the Respondent's assertion, the
issue of whether the collective -bargaining agreement was terminated by
the Union on 21 April 1983 is not the sole issue in this case . In addition
to containing allegations that the Respondent repudiated the collective-
bargaining agreement , the complaint and consolidated amended com-
plaint allege that the Respondent unilaterally and without notice to the
Union modified the terms and conditions of employment . This allegation
would not necessarily be resolved in an arbitration proceeding. We find
that where , as here, there are alleged violations of Sec . 8(aX5) that are
closely intertwined, deferral of only one of those allegations would not
serve the purposes of the Act. Deferral to arbitration is also inappropriate
because in this case the Respondent's unilateral modification of the terms
and conditions of employment constitutes a rejection of the principles of
collective bargaining.
Member Stephens notes that, as there has been no court order compel-
ling arbitration, the question whether the judge could have deferred
under Dubo Mfg. Corp., 142 NLRB 431 ( 1963), is not presented.
Robert A . Ellison, Esq., for the General Counsel.
Arthur McGinn Jr., Esq. (McGinn & Brown, PC-), of
Albany, New York, for the Respondent.
Dominick Tocci, Esq., of Albany, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon a
charge filed on 21 October 1983 in Case 3-CA-11871 by
Local Union 724, International Brotherhood of Electrical
281 NLRB No. 75
471
Workers, AFL-CIO (the Union or the Charging Party),
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3, Buffalo,
New York, duly issued an order consolidating Cases 3-
CA-11871 and 3-CA-11909,1 a consolidated amended
complaint, and notice of hearing on 19 December 1983,
against Rappazzo Electric Company , Inc. (the Respond-
ent), alleging that the Respondent engaged in certain
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). On 5 January 1984 the Respondent, by counsel,
duly filed an answer denying the material allegations in
the consolidated amended complaints and raising the fol-
lowing affirmative defense:
[T]he sole issue between Local 724 and Respondent
is whether their collective labor agreement was ter-
minated by Local 724 as of 8 a.m. on April 21,
1983 . That issue has been processed under the
grievance procedure of the agreement with the
active participation of Local 724 and Respondent
and Local 724 has an outstanding demand for arbi-
tration. The same issue is also the subject matter of
a proceeding of the New York State Department of
Labor on the complaint of Local 724.9
Respondent concedes the statutory representation
status of the Union and is prepared to engage in
collective bargaining as set forth in paragraph 6 of
this Answer . Under these facts and its own prece-
dents, the Board should decline to address itself to
this sole issue of contract interpretation and it
should dismiss the Complaint in Case 3-CA-11871.4
A hearing was duly held before me in Albany, New
York, on 29 February and 1 March 1984. All parties
were afforded full opportunity to appear , to introduce
evidence, to examine and cross-examine witnesses, to
argue orally on the record , and to file briefs . Thereafter,
i At the hearing the General Counsel moved to sever Case 3-CA-
11909 on the grounds that the parties had arrived at a "non-Board settle-
ment" of the "allegation in the complaint pertaining to Local 438 [the
Charging Party in that case]." The parties being in agreement thereto, I
granted the motion to sever and marked Case 3-CA-11909 as "severed
and settled."
8 As indicated before, Case 3-CA-11909 was settled and severed from
Case 3-CA-11871, which latter case remains the subject of the instant
hearing.
a This involves the Union's charge that the Respondent failed to make
payments to the "Albany Electrical Workers Pension Fund & Welfare
Fund." See A. Exhs. 24-26.
* Par. 6 of the Respondent 's answer states:
With respect to the facts alleged in paragraph XI(a) of the Com-
plaint, Respondent denies that Local 724 at any time "material
herein," requested Respondent to bargain collectively. Respondent
has been and is prepared , upon such request , to bargain collectively
with Local 724 subject to the effect of the Respondent's having one
or no employee whose employment could be covered by such re-
quest. Respondent admits that Local 724, after 8 a.m. on April 12,
1983, requested Respondent to continue to abide by the collective
bargaining agreement which Local 724 had duly terminated as of
that time and date . To that end, Local 724 invoked and Respondent
engaged in the grievance procedure under that agreement and Local
724's subsequent demand for arbitration remains outstanding. On
Local 724's Complaint, the New York State Department of Labor
has also commenced a proceeding on the same issue.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel, the Respondent, and the Charging
Party all filed briefs or "Memoranda of Law." At the
opening of the hearing, at the close of the General Coun-
sel's case, and at the close of the hearing , the Respond-
ent moved for dismissal of the consolidated amended
complaint for failure of proof and/or that this matter be
deferred to the "grievance and arbitration procedures of
the collective bargaining agreement ." At the hearing's
close I reserved decision on these motions . For the rea-
sons appearing below, I deny the Respondent 's motion
for deferral of this case pending arbitration . Additionally,
I deny the Respondent 's motion to dismiss the consoli-
dated amended complaint in its entirety for failure of
proof.
On the entire record and the briefs and/or memoranda
of the parties, and on my observation of the witnesses, I
make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , at all times material , has been a New
York corporation with its principal office and place of
business at 168 Watervliet Avenue, Albany, New York,
and other jobsites in the State of New York, engaged in
the business of providing and performing electrical con-
tracting services in the construction industry. In the
course and conduct of its business operations during the
preceding 12 months, these operations being representa-
tive of its operations at all times material , the Respond-
ent purchased, transferred, and delivered to its New
York jobsites, products , goods, and materials valued in
excess of $50,000, which products, goods, and materials
were transported to the jobsites directly from States of
the United States other than the State of New York, or
were received from other enterprises located in the State
of New York, which other enterprises had received the
products, goods, and materials directly from States other
than New York State. The consolidated amended com-
plaint alleges, the Respondent admits, and I find that the
Respondent is now , and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The consolidated
amended complaint also alleges , the Respondent admits,
and I fmd that Charles J. Rappazzo Sr., president of the
Respondent , has been and is now a supervisor within the
meaning of Section 2(11) of the Act and an agent of the
Respondent acting on its behalf within the meaning of
Section 2(13) of the Act. Additionally , the Respondent
concedes, and I find, that Charles Rappazzo Jr. is a su-
pervisor within the meaning of Section 2(11) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The consolidated amended complaint alleges , the Re-
spondent admits, and I find that Local Union 724, Inter-
national Brotherhood of Electrical Workers, AFL-CIO
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated amended complaint alleges, in sub-
stance, that since about 21 April 1983 the Respondent
has refused to recognize and bargain collectively with
the Union by repudiating its collective-bargaining agree-
ment with the Union and by unilaterally modifying the
terms and conditions set forth in the collective-bargain-
ing agreement , in violation of Section 8(a)(1) and (5) of
the Act. The Respondent denies these allegations.
A. Background
The Union and the Albany Electrical Contractors As-
sociation , Inc. (Albany Chapter of the National Electri-
cal Contractors Association) (the Association) have a
prior history of a collective-bargaining relationship. Ac-
cording to the testimony of Union Business Manager
Harold L. Joyce, members of the Association as well as
nonmembers can become parties to the collective-bar-
gaining agreement between the Union and the Associa-
tion by signing "Letters of Assent-A," in which the em-
ployer authorizes the Association to be its collective-bar-
gaining representative for all matters regarding such bar-
gaining agreement . On 3 September 1974 the Respondent
signed a Letter of Assent-A.5 The Respondent resigned
as a member of the Association on 24 March 1978 al-
though it continued to apply the terms of the then-exist-
ing bargaining agreement until 31 May 1979, at which
time the Respondent attempted to sever its relations with
the Union by letter of that date . 6 Peter Bogausch, an em-
ployee and member of the Union, testified that when in-
formed of the Respondent 's action the employees picket-
ed the Respondent and, after it was established that the
Respondent was bound by the existing bargaining agree-
ment, the Respondent rescinded its 31 May 1979 sever-
ance letter on 6 July 1979.7 On 9 July 1979 the Respond-
ent signed another Letter of Assent-A.8
B. The Evidence
The collective-bargaining agreement in existence
during the period in which the issues in dispute in this
case arose extends from 1 July 1982 to 30 June 1984.9
Joyce testified that the collective -bargaining unit covered
by the agreement consists of the employees of those elec-
trical contractors who have executed Letters of Assent-
A, including the Respondent . 10 In this regard, the col-
s A. Exh. 4
6 A. Exhs. I and 2.
° A. Exh. 3.
s A. Exh. 5.
a A. Exh. 6.
10 The consolidated amended complaint alleges:
All journeymen and apprentice wtremen employed by employer-
members of the Albany Chapter and signatories to the Albany Chap-
ter-Local 724 contract or letters of assent , excluding all other em-
ployees, guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act, as more fully described in the
collective bargaining agreement referred to in paragraph VIII(a).
The Respondent denies this allegation Although the collective-bargaln-
ing agreement does not describe the unit covered, Joyce testified uncon-
tradlctedly that the appropriate unit is that as alleged in the consolidated
amended complaint The Board has found similar units of employees ap-
Continued
RAPPAZZO ELECTRIC CO.
lective-bargaining agreement contains an exclusive hiring
hall provision, which is enforced by the Union, and vir-
tually all the 300 to 350 individuals utilizing this referral
system are members of the Union.
The bargaining agreement, among other things, re-
quires that employers make contributions to fringe bene-
fits funds, and it appears that the Respondent was one of
three electrical contractors habitually delinquent in
making their fund payments , M. Scher & Son, Inc. and
Pembrook Electric Co., Inc. being the other two. Thus,
on 10 December 1982 and 2 February and 22 March
1983 , the Albany Electrical Workers Welfare and Pen-
sion Funds Local Union 724, I.B.E.W. demanded pay-
ment from the Respondent regarding its delinquencies,
but the Respondent failed to pay the moneys owed. As a
result, the Funds' trustees notified Joyce to collect the
delinquent amounts and , accordingly , on 4 April 1983,
Joyce sent letters to all three employers, including the
Respondent, which stated:
Please be advised that Local Union No. 724,
I.B.E.W., in compliance with Article III, Section
61, is by this letter providing seventy-two (72) hours
notice that your company is in violation of sections
referred to in 6I.11
The Respondent did not reply to this letter , nor did it
make any of the delinquent payments to the Funds.
Joyce testified that in sending the 4 April 1983 letters
to these employers he was following the applicable pro-
visions set forth in the collective-bargaining agreement,
the International Union's constitution , and additional in-
structions from officials of the International Union.
Joyce referred specifically to article I, section 4, article
II, sections 5A and 10, and - article III, section 61, of the
collective-bargaining agreement;12 article 17 of the Inter-
propriate for the purposes of collective bargaining . See Nelson Electric,
241 NLRB 545 (1979); H. S Brooks Electric, 233 NLRB 889 (1977);
Wayne Electric, 226 NLRB 409 (1976). Moreover, the Respondent offered
no evidence to refute this. I therefore find and conclude:
All journeymen and apprentice wiremen employed by employer-
members of the Albany Chapter and signatories to the Albany Chap-
ter-Local 724 contract or letters of assent ; excluding all other em-
ployees, guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
" Art. III, sec. 61 , of the collective-bargaining agreement provides:
Individual Employers who fail to remit payments as provided herein
shall be additionally subject to having this Agreement terminated
upon seventy-two (72) hours notice, in writing being served by the
Union , provided the individual Employer fails to show satisfactory
proof that the required payments have been made . Local 724 shall
not be bound by any arbitration or no -strike provisions of this
Agreement with reference to such delinquent Employers.
12 Art. I, sec. 4, provides:
There shall be no stoppage of work either by strikes or lockout be-
cause of any proposed changes in this agreement , or disputes over
matters relating to this agreement . All such matters must be handled
as stated herein.
Art. I I, sec. 10, provides:
The Local Union is a part of the International Brotherhood of Elec-
trical Workers , and any violation or annulment by an individual em-
ployer of the approved agreement of this or any other Local Union
of the IBEW, other than violations of Section 11 of this article, will
be sufficient cause for the cancellation of this agreement by the
Local Union, after a finding has been made by the International
President of the Union that such a violation or annulment has oc-
curred.
473
national Union 's constitution ; ) 3 and written instructions
by International Union Vice President J. J. Barry dated
13 June 1980.14
Joyce recounted that having received no response or
the requested payments from the Respondent regarding
the 4 April 1983 letter, the Union sent the Respondent
another letter dated 14 April 1983 which stated:
The letter delivered to your office on April 4, 1983
was intended to invoke the 72 hours notice provid-
ed for in Section SA of our working agreement.
Due to the fact that some benefit contributions are
still due at this time , and that enforcement of this
section could lead to litigation , I prefer to enforce
this action in a more formal manner . I believe that
under this section, termination of the contract can
come anytime after a minimum of 72 hours subse-
quent to the notification . Therefore, I am, by this
return receipt letter , serving notice that Local 724,
I.B.E.W. will consider the 72 hours to have expired
at 8:00 a.m. on Thursday, April 21, 1983.16
Joyce stated that the purpose of this letter was to place
the delinquent contractors on notice that the Union was
Art. II, sec. 5A, provides in pertinent part:
Individual employers who fail to remit [National Employees Benefit
Agreement payments] as provided above shall be additionally subject
to having this agreement terminated upon seventy-two (72) hours
notice in writing being served by the Union , provided the individual
employers fail to show satisfactory proof that the required payments
have been paid . . The failure of an individual employer to
comply with the applicable provisions of the National Employees
Benefit Agreement shall also constitute a breach of this labor agree-
ment.
13 Art . 17, sec. 10, of the International Union 's constitution provides in
pertinent part:
All [local unions] shall be compelled to live up to all approved
agreements unless broken or terminated by the other party or parties,
which fact shall first be ascertained by the [International president].
No agreement of any kind or nature shall be abrogated without sanc-
tion of the [International president].
Art. 17, sec. 12, of the International Union's constitution provides: No
[local union] shall cause or allow a stoppage of work in any controversy
of a general nature before obtaining consent of the [International presi-
dent]. The [International president], or his representative , has the power
at any time to enter any situation or controversy involving a [local union]
or any of its members, and the decision of the [International President]
... shall be accepted by the [local union] and its officers.
14 The 13 June 1980 letter provides in pertinent part.
This is in response to your question regarding the proper procedure
to be used in terminating a contract . When the Local Union feels the
employer has violated the agreement, you shall advise the employer
of the alleged violations in writing . If the employer fads to adjust the
matter , it is then to be presented to the Labor-Management Commit-
tee for a Hearing . After the facts have been presented , the Labor-
Management Committee will find the individual employer guilty or
not guilty as charged . In cases where the employer is delinquent in
fringe benefit payments or wages , the Local Union shall immediately
take the necessary legal action to collect all delinquent payments.
Termination of the agreement in such case will not be considered
until after such action has been completed because once the agree-
ment has been terminated, there is no way to collect these delinquen-
cies. If the Labor-Management Committee finds the employer guilty,
the Local Union shall make a written request to me for permission to
terminate the agreement . Copies of all notices (including the original
charges) and correspondence listed below must accompany the re-
quest to terminate.
15 The evidence shows that similar letters were sent to the other delin-
quent contractors , M. Scher & Son, Inc. and Pembrook Electric Co., Inc.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complying with the requirement under the bargaining
agreement that 72 hours' notice be given before the
agreement could be terminated . He continued that this
was the first step in the termination process if the Re-
spondent failed to cure its delinquencies, to be followed
by submitting the matter to the Joint Conference Com-
mittee under provisions of the agreement and then to the
International Union's president should termination as a
remedy be sought . In this regard, Joyce testified that the
Union never terminated the bargaining agreement, nor
did it ever seek the International Union president's au-
thorization to do So.16
As of 14 April 1983 the Respondent employed only
one member of the Union, Peter Bogausch . On 14 April
1983 Joyce sent the following letter to Bogausch and to
the Union 's members employed by M. Scher & Son, Inc.
and Pembrook Electric Co., Inc.:
Enclosed is a copy of a letter delivered to your em-
ployer by return receipt mail . It is never desirable
for this office to take any action resulting in a loss
of time for our members . However, persistent ef-
forts to collect your benefits have failed, and this
section of our agreement will be enforced prior to
any legal action. I also must remind you of Article
XII, Section 11 of your By-Laws : Section 11(a).
Any IBEW member working in this jurisdiction for
an employer coming under the terms of the Nation-
al Employees Benefit Agreement when the employ-
er is delinquent-or not paying assessments of the
National Employees Benefit Board-shall be as-
sessed one day's pay for each day the member
works for such employer, after being notified by the
Business Manager of the employer 's delinquency.
Any assessment collected under this Section shall be
contributed to the IBEW Pension Fund. Unless you
are advised otherwise, we will consider the 72
hours to have expired at 8:00 A.M., Thursday,
April 21, 1983. It will be necessary for you to call
this office; be assured we will call you if any
change occurs.17
Joyce stated that he sent this letter to the employees of
the delinquent contractors , including Bogausch, to put
them on notice that the Union was having difficulty col-
lecting the fund moneys owed by their employers, and
that the Union considered these delinquencies to be seri-
ous.1 s
16 Joyce testified that while M . Scher & Son, Inc. and Pembrook Elec-
tric Co, Inc failed to cure their respective delinquencies until sometime
after 21 April 1983, as of that date and thereafter these two contractors
continued to comply in most other respects with the terms of the collec-
tive-bargaining agreement , utilizing the Union 's referral procedure and
submitting reports and thereafter making payments to the various Local
724 trust funds
17 Jt Exh 12
18 Joyce testified that another reason for sending this type of letter to
employees was that "hopefully" the employees would "go to the employ-
er and say, 'Hey, I can lose my job here , I can lose some time. Pay the
money you owe, I got nothing against you , it's the guy Joyce , he's the
pain in the butt,"' in other words, to have the employees put pressure on
their employers to pay the amounts owed.
Bogausch t 9 testified that he received Joyce's letter
about 15 or 16 April 1983 and, a few days later, showed
it to his "boss," Charles Rappazzo Jr., on the jobsite. Bo-
gausch related that Rappazzo told him that the Respond-
ent had also received a letter from Joyce but a different
one, without saying more . He stated that a few days later
Rappazzo requested to see the letter again, but Bogausch
did not have it with him and he offered to obtain a copy
for Rappazzo from Joyce . Bogausch continued that at
the close of the workday on Wednesday, 20 April 1983,
Bogausch informed Rappazzo that he had not heard
from Joyce and would therefore not appear for work the
next day, Thursday, 21 April 1983. Rappazzo then told
Bogausch, "Well, I might just as well pick up all the
tools and we'll lock everything up," whereupon he and
Rappazzo proceeded to do so . Bogausch told Rappazzo
that if Joyce should call him, he would let Rappazzo
know about it.
Joyce testified that in order to preclude any misunder-
standing by the employees concerning this letter, and to
make it clear to them that they were to report for work
on 21 April 1983, he telephoned Bogausch and the other
employees involved in the early evening on 20 April
1983 and told them "to go to work the next day."20 Bo-
gausch related that after receiving Joyce's call he tele-
phoned Rappazzo that same evening and advised him
that he would be reporting for work the next day. Ac-
cording to Bogausch , Rappazzo said that because he had
already picked up all the tools , and Bogausch would
have nothing to work with on the jobsite, would he
mind appearing for work the following Monday instead
of that Thursday, 21 April 1983, and Bogausch agreed to
do so.21
By letter dated 21 April 1983, the Respondent's presi-
dent, Charles Rappazzo Sr., informed the Union:
In response to your letters of April 4, 1983 and
April 14, 1983, we acknowledge that the Collective
Bargaining Agreement between Local Union No.
724 and Rappazzo Electric Co., Inc. terminated at
8:00 A.M. today.22
Moreover, in a letter dated 28 April 1983 Rappazzo noti-
fied the Albany Benefit Trust Fund:
Enclosed please find our check for our final pay-
ment to the National Electrical Benefit Fund. Please
19 At the time of the hearing , Bogausch was still employed by the Re-
spondent and still a member of the Union
20 Joyce testified that he never intended by his letter of 14 April 1983
to give notice to these employees not to report for work on 21 April
1983 because he had no authority to pull them off the job while the bar-
gaming agreement was in effect Joyce admitted , however, that the em-
ployees could misinterpret his letter as written and he therefore called
them to make sure that they reported for work the following day.
21 Interestingly, the minutes of the Joint Conference Committee meet-
ing held on 25 May 1983 involving the Union and the Respondent, and
regarding whether the bargaining agreement was terminated and the pay-
ment of fund amounts and the Respondent 's violations thereof as alleged
by the Union, apparently indicate that Rappazzo stated therein that
"when reporting for work, Mr Bogausch was told by Mr. Rappazzo that
as of April 21 1983 their contract was terminated with Local Union #
724, I.B E.W. and [he] would not be able to work." See Jt Exh 18
22 Jt Exh 13
RAPPAZZO ELECTRIC CO.
be advised that our contract with Local 724
I.B.E.W., was terminated as of Thursday, April
21st, 1983 at 8 :00 A.M. Therefore, we will no
longer be sending you any reports.23
By letter dated 2 May 1983 Joyce advised Rappazzo in
pertinent part:
In a letter mailed April 14 1983 , I notified you and
other contractors that termination of a contract can
come any time after a minimum of 72 hours notice.
I refer you to paragraph II of that letter . In para-
graph III of that letter, I set 8 :00 A.M., Thursday,
April 21, 1983 as expiration of the 72 hours. I did
not set a date for termination of the contract. The
letter stated termination can come any time after
the 72 hours . I am now informed Rappazzo Electric
is currently delinquent NEBF payments for June
and July 1981 , and termination is a possibility.24
Additionally, the parties stipulated:
Since April 21 , 1983 Respondent Rappazzo Electric
Company, Inc. has performed electrical contracting
work within the territorial area and trade jurisdic-
tion covered by the agreement with IBEW, Local
724, which was in effect prior to April 21, 1983 and
has not complied with the provisions of that agree-
ment with respect to wages , fringe benefits and con-
ditions of employment.
Bogausch testified that he returned to work on
Monday or Tuesday of the week following Thursday, 21
April 1983 , and Rappazzo said nothing to him about
what had occurred the prior Wednesday , 20 April 1983.
Bogausch related, however , that at the end of the work-
week he found that his paycheck was less than it should
be. On his inquiring about this Rappazzo Jr. advised him
that his rate of pay was now $14.85 per hour , down from
his former hourly rate of $16 .05, and "probably said,"as
"As far as we're concerned we are out of the Union and
we're only entitled to pay prevailing wage which is
$14.85 ."26 Bogausch stated that approximately 1 week
later Charles Rappazzo Sr. told him , "[H]e had nothing
to do with the local anymore that he would put pension
and welfare directly into my paycheck and for me to pay
it directly to the Local 724."27 When Bogausch in-
formed Joyce of his pay reduction , Joyce told him
"They can 't do that . I'll take care of it ." Bogausch con-
tinued that other employees were subsequently hired di-
rectly by the Respondent and were paid anywhere from
as A. Exh. 14.
24 A. Exh. 15.
25 Bogausch testified that when he used the word "probable" in his
answers, it was more likely that the person did say something than that
he did not say it.
26 Bogausch stated that this amount was $ 1 below "Local 724s rate."
Bogausch added that at the beginning of July 1983 , he was scheduled to
receive a $ 1 hourly wage increase under the terms of the bargaining
agreement , but was never given the raise in salary.
87 Bogausch testified that after he had made a few of the pension and
welfare payments directly to the Union, the Union informed him that his
payments would be refunded because he could not as an employee pay
these amounts himself directly into the Funds.
475
$5 to $14.85 per hour . Bogausch also noted that the Re-
spondent had "tried to go non-union for many years."
Joyce testified that while he made several attempts
thereafter to resolve the dispute concerning the bargain-
ing agreement Rappazzo insisted that the Union had ter-
minated the agreement on 21 April 1983 . 28 Joyce also
testified that he again asked Rappazzo to pay Bogausch's
fringe benefits and told him that Bogausch 's continued
employment was indicative of the fact that the Union
never intended to terminate the agreement nor had it
done so, but Rappazzo replied that the bargaining agree-
ment was no longer in effect and the Respondent was
not obligated to pay these benefits. Moreover , according
to Joyce , the Respondent never discussed any of the
modifications it made in employee wage rates or fringe
benefit payments or its refusal to honor the hiring hall
referral provisions of the agreement with the Union.29
Joyce added that subsequent to 21 April 1983 the
Union's welfare and pension funds never received any
fringe benefit payments from the Respondent.
Perry Crawford , employed by the Respondent from
May or June 1982 until February 1983 , testified that
when he was laid off by the Respondent on 9 February
1983 , Rappazzo Jr. told him that the layoff was occa-
sioned by a lack of work but that he would be recalled
later to work on the Ida Yarborough Homes jobsite.
Crawford related that in early May 1983 he observed the
Respondent 's advertisement in the Albany Times Union
seeking to hire electricians, and that Joyce then called
him and advised him to answer the ad , which he did.
Crawford stated that he spoke to Rappazzo Sr. about
employment and Rappazzo said that he could have the
job. Crawford asked Rappazzo, "if he was going to
straighten out his affairs with our local union so that I
would be working under the union agreement and he
said no." Crawford recounted that he then declined the
job offer because, although Rappazzo had told him he
would receive the prevailing wage rate plus the Re-
spondent would "put the benefits in the envelope," since
the Respondent would not pay the benefit amounts di-
rectly to the Union itself he felt that he could lose his
health insurance coverage.
Responding to the Union's letter of 2 May 1983, Rap-
pazzo advised Joyce by letter dated 10 May 1983:
Your May 2, 1983 letter is an inaccurate description
of your April 14, 1983 letter . In addition, it ignores
your letter dated April 4, 1983 and our letter dated
April 21, 1983 . We restate our position that the
Working Agreement between Local Union 724 and
Rappazzo Electric Co., Inc. terminated at 8 a.m. on
28 On cross-examination , in response to a question regarding whether
the Union asked the Respondent to negotiate with it after the Respondent
had taken the position that the Union had terminated the bargaining
agreement on 21 April 1983, Joyce responded , "I don 't believe negotiate
is the right word. I asked if [Rappazzo] would come back into the fold, I
don't think I ever , I know I never offered an opportunity to negotiate,
no.,.
29 The Respondent admits in its answer that "Respondent does recog-
nize Local 724 as the exclusive representative of all journeymen and ap-
prentice wiremen and foreman employed by Respondent on its jobsites
located within the territorial jurisdiction of Local 724 for the purposes of
collective bargaining."
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 21, 1983 . It is difficult for us to believe that
you can take any other position because, at that
time, you required our employee who was a
member of Local 724 to withdraw from our em-
ployment. 3 °
Also on 10 May 1983 the Respondent was notified by
the "Joint Conference Committee (Labor/Management
Committee)" that a meeting was being scheduled to dis-
cuss the Union's charges that the Respondent was "in
violation of the working agreement in two areas , namely
`Referral Procedure ' and contributions to the `Funds,"'
and requested that the Respondent attend to present its
position on the matter. 31
The Joint Conference Committee32 met on 25 May
1983 with representatives from the Union and the Re-
spondent . S 3 Joyce testified that he told the Committee
that the Respondent had violated the bargaining agree-
ment by failing "to contribute to the Funds" and by fail-
ing to operate "under the terms of the referral proce-
dure . He was hiring people off the street rather than
through my referral ."84 The Respondent alleged that the
Union had terminated the bargaining agreement on 21
April 1983 . Joyce stated that he advised the Committee
that he had never terminated the agreement and as proof
thereof offered that he still had a union member, Bo-
gausch , employed by the Respondent and this would not
be allowed if there were no agreement, and that he
never sought or received approval for terminating the
agreement from the International Union, which is a pre-
requisite thereto . According to the minutes of this meet-
ing, the Respondent informed the Committee that it
"wanted out" of the agreement . 35 The Committee ruled
that the Respondent "is in violation of the funds" and ac-
knowledged being "deadlocked" over the issue concern-
ing "Referral Procedures."
Regarding the issue of the bargaining agreement's ter-
mination, the Committee minutes state , "After a discus-
sion on the matter , it was agreed that if Rappazzo Elec-
tric `Wanted Out ', he could not be forced to stay in, and
therefore it was his choice to terminate his agreement."
However , by letter dated 3 August 1983 NECA, Albany
Chapter notified the parties that the Union had objected
to this statement in the minutes, the Union's position
being that it was never agreed at this meeting that the
Respondent had the choice to terminate the bargaining
agreement "other than by the terms of the Agree-
ment."36
30 A. Exh 17
31 A. Exh 16
33 Representatives from NECA, Albany Division and the Union com-
prise this Committee, and number three from each party.
33 Dominick Tocci, Esq., the Union 's attorney, and Harold Joyce rep-
resented the Union at the meeting, and Arthur McGinn , Esq, attorney
for the Respondent , and Charles Rappazzo Sr represented the Respond-
ent.
94 The parties stipulated that " [w]ith regard to the two grievances or
alleged contract violations submitted to the joint conference on May 25th
the alleged failure to pay contributions to various fringe benefit funds
covered the period prior to April 21, 1983 and the Union 's allegations
with regard to the hiring hall provisions dealt with a period subsequent
to April 21, 1983."
$ Is A. Exh 18
36 Jt Exh 19
By letter dated 25 July 1983, the Union 's attorney, Do-
minick Tocci , reminding the Respondent that the Joint
Conference Committee had not resolved the "grievance
and dispute" regarding the Respondent's failure "to abide
by its working agreement with Local 724" and had
"deadlocked on the issues presented to it , and the dispute
continues to date," stated:
Local 724, therefore , demands arbitration of the dis-
pute, pursuant to Article I, Section 8 of the agree-
ment . . . Pending the arbitration and a decision
from the [Arbitration] Board , Local 724 demands,
as it has previously , that all terms and conditions of
the agreement , including wages and fringe benefits,
remain in effect, as provided in Article I, Section 9
of the agreement.37
On 14 September 1983 the Respondent 's attorney,
Arthur McGinn , responded to the Union's letter replying
in pertinent part:
The Joint Conference Committee deadlocked on the
issue of whether the contract terminated on April
12, 1983 . It is our position that this is a substantial
and fundamental question which is not subject to
the arbitration provisions of the agreement in the
absence of a judicial decision that there exists a
written agreement between the parties to arbitrate
that dispute. Please advise us if you wish to proceed
with this matter in any way and we will cooperate
in obtaining a resolution of outstanding issues as ex-
peditiously as practicable.38
The parties stipulated that sometime between the date of
Tocci's letter of 25 July 1983 and the date of McGinn's
response, 14 September 1983 , Tocci and McGinn dis-
cussed Tocci's letter "and potential future proceedings."
The Respondent called no witnesses in its own behalf.
However, the Respondent maintained , in its counsel's
closing remarks and reaffirmed in its memorandum, that
it never actually refused to arbitrate the issue of whether
the bargaining agreement had been terminated and that it
was willing to arbitrate provided the Respondent's par-
ticipation therein did not constitute an admission on its
part that the agreement is still in effect or a waiver of
the Respondent's rights pursuant to article 75 of the
Civil Practice Law and Rules of the State of New
York.39
37 Jt Exhs . 21, 22. Art. 1, sec 8, of the bargaining agreement provides
Should the [Joint Conference Committee] fail to agree or to adjust
any matter , the dispute shall be referred , for the purpose of arbitra-
tion, to a Board consisting of one authorized representative from
each party , and a third person approved by both parties Deci-
sion of this arbiter will be final and binding on both parties
33 it Exh 23
39 New York State CPLR Sec. 7503 provides.
(a) Application to compel arbitration stay of action . A party ag-
grieved by the failure of another to arbitrate may apply for an order
compelling arbitration . Where there is no substantial question wheth-
er a valid agreement was made or complied with , and the claim
sought to be arbitrated is not barred by limitation under subdivision
(b) of Section 7502, the court shall direct the parties to arbitrate.. .
(b) Application to stay arbitration Subject to the provisions of
subdivision (c), a party who has not participated in the arbitration
Continued
RAPPAZZO ELECTRIC CO.
C. Analysis and Conclusions
1. Deferral to arbitration
The Respondent seeks a dismissal of the consolidated
amended complaint on the grounds that the basic dispute
in this proceeding is the question of whether the collec-
tive-bargaining agreement still exists and "under Board
precedent, especially recent precedent ," this proceeding
should be deferred to the arbitration process40 and New
York State judicial arbitation enforcement.
The Respondent asserts:
[T]his is precisely the type of a situation where the
parties should be left to their contractually agreed
manner to resolve this dispute..And without any
concept of election of remedies , without any con-
cept of retaining jurisdiction or anything else, that
this is so fundamental and so clear that there should
simply be a deferral and the complaint should be
dismissed period.
Whether deferral is appropriate is a threshold question
which must be decided before the merits of the unfair
labor practice allegations can be considered.4 t
It is well settled that under certain circumstances the
Board will decline to exercise its jurisdiction in deference
to an arbitrator 's award or to the grievance -arbitration
process embodied in a collective-bargaining agreement.
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board
deferred to an arbitral award setting forth the following
standards:
[Deferral to an arbitrator 's award is appropriate
when] the proceeding has been fair and regular, all
parties had agreed to be bound , and the decision of
the arbitration panel is not clearly repugnant to the
purposes and policies of the Act.42
Since the Spielberg decision, the Board added an addi-
tional standard for deferral. In Olin Corp., supra, the
Board explicated its latest interpretation of this standard
to require that the contractual and unfair labor practice
and who has not made or been served with an application to compel
arbitration , may apply to stay arbitration on the ground that a valid
agreement was not made or has not been complied with...
(c) Notice of intention to arbitrate . A party may serve upon an-
other party a demand for arbitration or a notice of intention to arbi-
trate . . . and stating that unless the party served applies to stay the
arbitration within twenty days after such service he shall thereafter
be precluded from objecting that a valid agreement was not made or
has not been complied with. .
40 The Respondent cites United Technologies Corp., 268 NLRB 557
(1984), and Olin Corp., 268 NLRB 573 ( 1984), in this connection . Regard-
ing Olin Corp., the Respondent states in its memorandum , "Primarily, re-
spondent asserts that the General Counsel has not sustained his burden of
demonstrating that the NLRB should not defer to the grievance and arbi-
tration procedures of the collective bargaining agreement. " Counsel for
the General Counsel states in his brief, "However, in Olin the Board held
that where an arbitration proceeding has taken place, the General Coun-
sel has the burden of establishing arbitral deficiencies sufficient to war-
rant de novo review by the Board . Of course, in the present case , there is
no arbitral determination to review."
41 L E Myers Co., 270 NLRB 1010 fn . 2 (1984).
49 The Board noted in the Spielberg case that its objective in fashioning
the deferral doctrine was to encourage the "voluntary settlement of labor
disputes."
477
issues be factually parallel , the arbitrator be generally
presented with the facts relevant to resolving the unfair
labor practice , and the award is "not palpably wrong."41
Subsequent to the Spielberg case the Board has ex-
tended its deferral doctrine to cases in which an arbitra-
tion award has not as yet been issued . In Dubo Mfg.
Corp., 142 NLRB 431 (1963), the Board, citing congres-
sional preference for the voluntary resolution of labor
disputes,44 deferred action on allegations of unlawful dis-
crimination under the Act pending completion of the
grievance-arbitration process where the dispute was al-
ready being handled within that process pursuant to a
court order. The Board stated:
[T]he Board has recognized existing arbitration
awards, and in certain circumstances has required
parties before resorting to Board processes to uti-
lized the grievance and arbitration procedures in
agreements to which they are signatory . These con-
siderations are clearly applicable here where not
only do the parties have an available procedure to
settle the dispute, but a United States District Court
has ordered them to utilize it. It would clearly frus-
trate the intent expressed by Congress if the Board
were now to permit the use of the Board's process-
es to enable the parties to avoid their contractual
obligations as interpreted by the Court.
Thereafter, in Collyer Insulated Wire, 192 NLRB 837
(1971), the Board adopted a definite system of prearbitral
deferral . Collyer involved an 8(a)(5) charge alleging uni-
lateral changes in conditions of employment, and in
ruling that it should and would defer to existing griev-
ance-arbitration procedures prior to either parties invoca-
tion of these procedures, the Board held that it would do
so in the following circumstances : When the dispute
arose "within the confines of a long and productive col-
lective-bargaining relationship"; when there is no claim
of "enmity by Respondent to employees ' exercise of pro-
tected rights"; when "Respondent has . . . credibly as-
serted its willingness to resort to arbitration under a
clause providing for arbitration in a very broad range of
disputes and unquestionably broad enough to embrace
"the dispute before the Board"'; when the agreement and
its meaning "lie at the center of this dispute"; and when
the dispute is eminently well suited to resolution by arbi-
tration.45 However, in Collyer the Board retained its ju-
43 In Raytheon Co., 140 NLRB 883 (1963), set aside on other grounds
326 F.2d 471 ( 1st at . 1964), the Board held that the issue involved in the
unfair labor practice case must have been presented to and considered by
the arbitrator in order for the Board to defer. Raytheon was overruled by
the Board in Electronic Reproduction Service Corp ., 213 NLRB 758 (1974),
in which the Board held that it would now defer to an arbitrator 's award
even when there was no indication that the arbitrator had considered
such issue . Thereafter , in Suburban Motor Freight, 247 NLRB 146 (1980),
the Board overruled Electronic Reproduction Service Corp . and like cases,
returning to the standard enunciated by it in the Raytheon case. In turn,
the Board in Olin Corp ., supra, overruled Suburban Motor Freight
44 Sec. 203(d) of the Act provides:
Final adjustment by a method agreed upon by the parties is declared
to be the desirable method for settlement of grievance disputes over
the application or interpretation of an existing collective-bargaining
agreement.
45 Collyer Insulated Wire, supra at 842.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
risdiction in the matter and would thereafter decide the
merits of the case on a proper showing that the griev-
ance was not, with reasonable promptness, resolved by
settlement or arbitration or that the arbitral proceeding
and/or the resulting award failed to meet the Spielberg
standards.46
In United Technologies Corp., 268 NLRB at 560, the
Board affirmed the policies expressed in Collyer'47 stat-
ing:
The Collyer policy we embrace today is one that
has been applied with the rule of reason . In their
dissenting opinion in General American Transporta-
tion, supra , former Members Penello and Walther
observed:
The Board has not deferred cases to arbitration
in an indiscriminate manner, nor has it been in-
sensitive to the statutory rights of employees in
deciding whether to defer and whether to give
effect to an arbitration award. The standard it has
used is reasonable belief that arbitration proce-
dures would resolve the dispute in a manner con-
sistent with the criteria of Spielberg . Thus, it has
refused to defer where the interests of the union
which might be expected to represent the em-
ployee filing the unfair labor practice charge are
adverse to those of the employee, or where the
respondent 's conduct constitutes a rejection of
the principles of collective bargaining. And
where, after deferral , the respondent has refused
to proceed to arbitration , the Board has rescinded
the deferral and decided the case on the merits.
Finally, if for any reason the arbitrator 's award
fails to meet the Spielberg standards , as for exam-
ple, that it is repugnant to the policies of the Act,
the Board will not give it effect.
We shall continue to be guided by these principles.
The evidence here shows that by letter dated 25 July
1983 the Union demanded "arbitration of the dispute,
pursuant to Article I, Section 8 of the agreement" be-
cause the Joint Conference Committee , functioning pur-
suant to the grievance-arbitration provisions of the col-
lective-bargaining agreement , had failed to resolve the
48 In United Technologies Corp, supra at 560, the Board reaffirmed its
retention of lunsdiction policy stating.
[D]eferral is not akin to abdication. It is merely the prudent exercise
of restraint, a postponement of the use of the Board's processes to
give the parties ' own dispute resolution machinery a chance to suc-
ceed . The Board's processes may always be invoked if the arbitral
result is inconsistent with the standards of Spielberg.
47 The Board stated in United Technologies Corp., supra at 559:
Simply stated , Collyer worked well because it was premised on
sound legal and pragmatic considerations . Accordingly, we believe it
deserves to be resurrected and infused with renewed life.
Previously, the Board had extended deferral to cases arising under Secs.
8(axl) and (3) and 8(b)(l)(A) and (2) of the Act in National Radio Co,
198 NLRB 527 (1972). However, in General American Transportation
Corp, 228 NLRB 808 (1977), the Board overruled National Radio thus
insulating individual rights from the deferral doctrine . United Technologies
Corp, supra, overruled General American Transportation holding that,
henceforth, the Board would Collyerize cases arising under these sections
of the Act
issue of the Respondent's failure "to abide by its working
agreement" with the Union . In response, the Respondent
by letter dated 14 September 1983 informed the Union
that because of the "deadlock" on the issue whether the
agreement had been terminated , it was the Respondent's
position that "[t]his is a substantial and fundamental ques-
tion which is not subject to the arbitration provisions of
the agreement in the absence of a judicial decision that
there exists a written agreement between the parties to
arbitrate that dispute." However , at the hearing the Re-
spondent asserted that it was not really refusing arbitra-
tion, but rather it was reserving its rights under article 75
of the New York State CPLR, which affords state court
authority to determine the existence of an agreement on
the filing of a motion to compel or stay arbitration, be-
cause if the Respondent agreed "to go along with the ar-
bitration procedure" it might be construed to have ad-
mitted the existence of the bargaining agreement which
it asserts was previously terminated by the Union.48
Under these circumstances the Respondent 's willingness
to arbitrate, as asserted at the hearing, provided its par-
ticipation does not constitute an acknowledgment that it
is still bound by the agreement, is less than unequivocal
and does not constitute a credible assertion that it is will-
ing to utilize arbitration.49
Moreover, as the Board stated in Mountain State Con-
struction Co., 203 NLRB 1085 (1973):
The record shows that Respondent's position, in its
answer to the complaint and throughout the hear-
ing, was that it was not bound by [the collective-
bargaining agreement]. Under the circumstances of
this case, we consider the Respondent 's actions set
forth above to be a complete rejection of the princi-
ples of collective bargaining and the self-organiza-
tional rights of employees, as found in Chase Mfg.,
Inc., 200 NLRB [887 (1972)]. Thus, deferral to arbi-
tration is not warranted in this case.
The Board has consistently held that deferral is inappro-
priate when the dispute involves the fundamental exist-
ence of a collective-bargaining agreement , particularly
when the Complaint alleges a contractual repudiation.50
48 The Respondent in its memorandum asserts:
The Union 's demand for arbitration was made by its attorney and
Rappazzo responded through its attorney after they discussed poten-
tial future proceedings In this setting , the response is not a refusal to
arbitrate A routine 20 day notice under CPLR 7503(c) would have
avoided any need for the Union to commence court proceedings.
Rather, the Union's attorney opted to file an unfair labor practice
charge on the six month anniversary of the contract termination
49 Western Exterminator Co., 223 NLRB 1270 (1976); Crescent Bed Co.,
157 NLRB 296 (1966) The Respondent itself did not invoke art. 75 of
the CPLR , neither did the Union . Had either party done so and the state
court directed arbitration , it would seem clear that under Dubo Mfg
Corp, supra, this matter would be deferred.
so Consolidated Coal Co, 253 NLRB 789 (1980), Nelson Electric, 241
NLRB 545 (1979); Anaconda Co., 224 NLRB 1041 (1976), Naccarato Con-
struction Co, 233 NLRB 1394 (1977), Pacific Grinding Wheel Co., 220
NLRB 1389 (1975); Wheeler Construction Co, 219 NLRB 541 (1975);
Teamsters Local 85 (Tyler Bros.), 206 NLRB 500 (1973 ) However, see
and contrast Electrical Workers IBEW Local 1186 (Pacific Electrical), 264
NLRB 712 , 713 fn 6 ( 1982), in which the Board stated. "Respondent's
contention that the contracts had terminated does not, by itself, make the
Continued
RAPPAZZO ELECTRIC CO.
As indicated above, the Board in United Technologies
specifically adopted that portion of the dissent in General
American Transportation Corp., which stated : "The Board
has not deferred cases to arbitration ... where the re-
spondent's conduct constitutes a rejection of the princi-
ples of collective bargaining." r, t
From all the above, I fmd and conclude that deferral
. in this case is unwarranted.
2. The existence of the collective-bargaining
agreement
The Respondent contends that the Union, by its letters
to the Respondent dated 4 and 14 April 1983 and by its
letter to member/employee Bogausch dated 14 April
1983, terminated the collective -bargaining agreement be-
tween the parties on 21 April 1983 . I do not agree. While
it may be argued that the language in the letters to the
Respondent is somewhat ambiguous and susceptible to
different interpretations , the surrounding circumstances
and the record evidence establish that the Union in fact
did not terminate the bargaining agreement but, instead,
the Respondent , deliberately disregarding the full context
of the Union's actions, seized upon what it considered as
an opportunity to repudiate the agreement and did so.
The sections of the collective-bargaining agreement re-
ferred to in the Union 's letters to the Respondent merely
provide that under certain circumstances the bargaining
agreement is subject to termination on 72 hours' notice in
writing (art. III , sec. 61, and art. II, sec . 5A). However,
these sections must be read and considered in connection
with article II, section 10, of the agreement which, in
substance, requires that cancellation of the agreement by
a local union can only occur "after a finding has been
made by the International President of the Union" that
the employer has violated or annulled the agreement.
The Union's 4 April 1983 letter in effect notified the
Respondent that it was in violation of the bargaining
agreement because of its failure to make certain employ-
ee fringe benefit payments , and that, therefore, the agree-
ment was subject to termination on 72 hours ' notice and
the Union was no longer bound by the no-strike provi-
sion in the agreement . From the wording of this letter,
without any mention that the Union was thereby termi-
nating the bargaining contract, and Joyce 's uncontradict-
ed testimony regarding the Union 's intent in sending the
letter, it seems clear that the Union 's action constituted
an attempt by it to obtain payment of the fringe benefit
contributions owed without having to resort to a strike
or contract termination rather than an actual notice of
termination. s 2
dispute nonarbitrable . Nolde Brothers, Inc. v. Local No. 358, Bakery and
Confectionery Workers Union AFL-CIO, 430 U.S. 243 ( 1977). Especially is
this so where the merits of the dispute involve the question of the validi-
ty of the asserted termination."
al Cited by the Board there for this proposition , among other cases,
was Mountain State Construction Co., supra, in which deferral was reject-
ed on the basis that the employer's continued position that it was not
bound by the collective-bargaining agreement constituted a rejection of
collective -bargaining principles.
52 It should be noted that the Respondent did not respond to this letter
nor in any other way indicate that it considered the Union 's April 4 letter
as a termination of the agreement.
479
Nor do I consider the Union 's 14 April 1983 letter to
the Respondent a notice of termination of the bargaining
agreement. Joyce specifically states therein that "I believe
that under this section , termination of the contract can
come anytime after a maximum of 72 hours subsequent to
the notification . Therefore, I am, by this return receipt
letter, serving notice that Local 724, I .B.E.W. will con-
sider the 72 hours to have expired at 8:00 A.M. on
Thursday , April 21 , 1983 ." When this language is consid-
ered in the context of article III , section 61 ; article II,
section 5A ; and article II, section 10, of the collective-
bargaining agreement , and the fact that the Union did
not specifically state that it was terminating the agree-
ment, the reasonable interpretation can only be that the
Union was placing the Respondent on notice that be-
cause the Respondent had failed to make its delinquent
fund payments pursuant to the Union's first request in its
letter of 4 April 1983, the Union was now considering
the possibility of terminating the collective -bargaining
agreement, and that the specific 72-hour notice was the
first step in the collection/termination process.58
Additionally , while Bogausch testified that on receipt
of Joyce's letter dated 14 April 1983 he intended not to
report to work on 21 April 1983 unless he heard other-
wise from Joyce , and Joyce did not dispute the reason-
ableness of Bogausch 's reaction to the letter, prior to
leaving work on 20 April 1983 Bogausch advised the Re-
spondent that he would not appear for work the next
day unless he received word from Joyce to do so, but
would immediately inform the Respondent if Joyce
called him . Notwithstanding the fact that Bogausch told
the Respondent that very evening , 20 April 1983, that
Joyce had called and instructed him to remain on the job
and that Bogausch actually reported for work the fol-
lowing week as agreed between he and Rappazzo Jr., the
Respondent nevertheless ignored this development and,
without any attempt on its part to ascertain from the
Union the status of the agreement , peremptorily "ac-
knowledged" that the agreement was terminated by its
letter to the Union dated 21 April 1983. 54 Moreover, al-
though coming subsequent to the Respondent 's 21 April
1983 letter, in which the Respondent indicated its inter-
pretation of the Union 's 4 and 14 April 1983 letters as
having terminated the agreement, the Union made it
clear by letter dated 2 May 1983 that it had not set a
date for the termination of the contract.
sa The 72-hour notice requirement is also on its face consistent not
only with the contractual provision that the authorization of the Interna-
tional Union's president is a condition precedent to termination as set
forth in art. II, sec . 10, but with the provisions of the International Union
constitution and the 13 June 1980 letter of instructions to local unions
from the International Union, and also with Joyce 's testimony that the
letters intended to place the Respondent on notice that the agreement
was subject to termination with the 72 hours' notice a requisite step to-
wards the accomplishment thereof. However, Joyce admitted that the let-
ters were also intended to convey a threat to the Respondent that, if it
failed to make the required fund payments , the Union was seriously con-
sidering termination of the agreement as a viable remedial action.
54 Joyce testified that the Union 's letter to Bogausch , issued by him to
other employees in previous similar instances , was also intended to "pres-
sure" the Respondent , since employees receiving such a letter usually ad-
vised their employer about it and strongly recommended compliance
with the agreement as a quid pro quo for their continuing to work on the
job.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, it must be assumed that the Respondent
was aware that the Union could not terminate the bar-
gaining agreement unless it notified the International
Union president and a fording was made by him that the
Respondent was in violation of the agreement . This is
specifically set forth in the agreement . The Board has
recognized the validity of bargaining contract clauses re-
quiring approval by an International union or its officers
prior to its becoming effective or modified, and has re-
quired strict adherence to these requirements when, as in
this case, it has been part of the collective-bargaining his-
tory between the parties.6 5 Because this condition prece-
dent had not occurred, it was unrealistic and unreason-
able for the Respondent to interpret the Union's 4 and 14
April 1983 letters as notice of the termination of the col-
lective-bargaining agreement by the Union. Nor was the
Respondent prejudiced or misled in any way about the
Union's position that the agreement was still in effect
after its 21 April 1983 letter to the Union because Joyce
at various times advised Rappazzo that the Union had
never terminated the agreement or intended to do so,
and the Union by letter dated 2 May 1983 notified the
Respondent in writing that no date had been set for ter-
mination of the agreement.56
The General Counsel's brief states:
Respondent, in denying that it repudiated the agree-
ment, maintains that it merely acknowledged the
contractual right of the Union to terminate the
agreement . Thus, in effect, the Respondent contends
that, having initiated the events by sending the
April 4 and 14 letters , the Union is now estopped
from contending that the Union never terminated
the agreement.
The General Counsel then discusses this contention and
concludes that it lacks merit. I agree.
In Oakland Press Co., 266 NLRB 107, 108 ( 1983), the
Board held:
It is well established that one who claims under the
doctrine of equitable estoppel must show (1) lack of
knowledge and the means to obtain knowledge of
the true facts; (2) good faith reliance upon the mis-
leading conduct of the party to be estopped; and (3)
detriment or prejudice from such reliance.5
NL.R B. v J D Industrial Insulation Company, Inc., 615 F.2d
1289, 1294 (10th Cir. 1980).
Considering the first requirement , the Respondent never
made any effort to contact the Union and inquire about
the meaning of the 4 and 14 April 1983 letters and the
Union 's intent, notwithstanding the ambiguous nature of
66 Hiney Printing Co., 262 NLRB 157 (1982), enfd 733 F 2d 1170 (6th
Cir. 1984); Crescent Bed Co., 157 NLRB 296 (1966). Also see Electrical
Workers IBEW Local 22 (Electronic Sound), 268 NLRB 760 fn 13 (1984)
As these cases involved whether a collective-bargaining agreement is ef-
fective or not, I see no reason why this would not apply equally as well
in determining whether an agreement has been terminated.
66 Electrical Workers IBEW Local 1186 (Pacific Electrical), 264 NLRB
712 (1982); Oil Workers Local 463 v. Texoma Natural Gas Co, 146 F.2d
62 (5th Cir 1944)
Joyce's language at least concerning the Union's letters
to the Respondent, that it was informed by its employee
Bogausch that Joyce had instructed him to remain on the
job as regards the Union 's letter to Bogausch, and
Joyce's subsequent letter of 2 May 1983 denying that the
Union had terminated the bargaining agreement and his
insistence in contacts with Rappazzo that the agreement
was still in full force and effect . Concerning the second
requirement and under the facts present in this case as set
forth above, even assuming , arguendo, that the 4 and 14
April 1983 letters were misleading , the Respondent's
action in repudiating the agreement in no way can be
construed as its having relied on the Union 's conduct in
good faith . Regarding the third , the Respondent has
failed to show any detriment or prejudice to itself in its
reliance on such alleged termination . In fact, as the
record evidence shows, "if anyone was prejudiced by the
conduct of the other party, it was the Union." Accord-
ingly, I conclude that in the circumstances of this case
there is no valid basis for equitable estoppel against the
Union.
Also, additional circumstances present in this case
highlight the Respondent's unjustified and unreasonable
interpretation of the Union 's 4 and 14 April 1983 letters.
Consider that the Respondent had attempted to abrogate
its prior 1979 collective-bargaining agreement with the
Union, although unsuccessfully ; that the Respondent had
a history of noncompliance with the fringe benefits pro-
visions of the agreement; that it also sought to repudiate
its agreement with another IBEW Union , Local 438 in
Troy, New York; that it admittedly "wanted out" of its
bargaining agreement with the Union ; that it advertised
in effect for nonunion employees in April or May 1983;
and that it informed union member/employee Bogausch
that the Respondent had nothing more to do with the
Union. b 7
It should also be noted that the other two electrical
contractors whose fringe benefit fund payments were ha-
bitually delinquent and to whom similar letters were sent
by the Union did not interpret the language in those let-
ters to constitute a termination of the collective -bargain-
ing agreement by the Union . Both M. Scher & Son, Inc.
and Pembrook Electric Co. continued to apply the bar-
gaining agreement without raising any question of termi-
nation, and the Union dealt with these employers in the
same manner it had prior to 21 April 1983 despite the
fact that these employers failed to make their delinquent
fringe benefit fund payments until sometime after that
date.58
67 The Respondent's interpretation of the Union's letters was obviously
made with an ulterior , if not antiumon, motive in mind In this connec-
tion the Board has held that letters of modification and/or termination of
collective-bargaining agreements should be interpreted to effectuate the
intent of the sender and not to allow employers or, for that matter,
unions to avoid their duty to bargain . South Texas, AGC, 190 NLRB 383
(1971).
ss Evidence thereof was admitted by the administrative law judge over
the objection of the Respondent . I find that such evidence has probative
value regarding the reasons for the Respondent 's actions, the Respond-
ent's intent , and the reasonableness and "good-faith" motivation thereof.
RAPPAZZO ELECTRIC CO.
From all the above , I find and conclude that by its ac-
tions the Union did not terminate the collective-bargain-
ing agreement between itself and the Respondent.
Rather, on 21 Apirl 1983 the Respondent repudiated the
agreement and the Union as the exclusive collective-bar-
gaining representatives of its employees.59
The Respondent in its "Memorandum to the Adminis-
trative Law Judge" also maintains:
The record is clear that the Union made no request
of respondent to engage in collective bargaining
after it terminated the agreement. Rather, the Union
has attempted to annul the termination by an amor-
phous appeal to the precepts of statutory good faith
collective bargaining. . . . In closing remarks and
again in this memorandum , respondent makes much
of the following Joyce testimony:
Q. Since April of '83, Rappazzo has consistently
taken a position that the contract was terminated in
discussions with you, haven 't they?
A. I would say so, yes.
Q. And you have consistently insisted with them
that they have to abide by the contract, is that cor-
rect?
A. Right.
Q. Now, at any time during that time did you
ever ask them to negotiate with you with respect to
the contract?
A. I don't believe negotiate is the right word. I
asked if he would come back into the folds , I don't
think I ever, I know I never offered an opportunity
to negotiate, no.
Based on the above , the Respondent then states, "An
employer which is 'never offered an opportunity to ne-
gotiate' should not be held to have violated its obligation
to negotiate."
However, Joyce made numerous attempts to obtain
the Respondent 's compliance with the agreement and to
resolve the dispute after the Respondent had repudiated
the bargaining agreement on 21 April 1983, but with no
success. Moreover, the Respondent informed its employ-
ee Bogausch soon after 21 April 1983 that it had nothing
more to do with the Union ; maintained that it "wanted
out" of the agreement at the 25 May 1983 grievance
hearing; and unilaterally modified the terms of the agree-
ment immediately after 21 April 1983 as more fully set
forth below, without affording the Union any notice or
°B The Respondent admits that the Union is the exclusive bargaining
representative of its employees . I previously found that the appropriate
bargaining unit in substance consists of employees employed by contrac-
tors who are members of the Association and/or those who executed let-
ters of assent . Moreover, as the union-security and hiring hall provisions
of the agreement are strictly enforced , the Union represents a majority of
employees in the unit . Even assuming , arguendo , that the employees of
the Respondent alone constitute the appropriate unit, the Respondent, as
it admits, is obligated to recognize and bargain with the Union . In this
regard, although the Board has held that it will not enforce agreements
covering a single-person unit, in the present case the Respondent had at
least two unit employees as of the 21 April 1983 repudiation , Bogausch
and Crawford (who was on layoff status as of that date but was promised
recall in the near future). Atlas Metal Spinning Co., 266 NLRB 180 (1983);
B. E & K. Inc., 252 NLRB 256 (1980); Stern Made Dress Co., 218 NLRB
372 (1975).
481
opportunity to bargain . Under these circumstances, I find
that the Union did request bargaining of the Respondent
and it is clear that any other such attempts by the Union
along these lines would have been futile.80
3. The Respondent's continuing duty to bargain
The Respondent concedes that the Union is the exclu-
sive bargaining representative of its employees. The Re-
spondent also stipulated that it failed to comply with the
terms and conditions of the collective-bargaining agree-
ment after 21 April 1983. Moreover, the evidence shows
that the Respondent modified various terms and condi-
tions of the bargaining agreement without giving any
notice to or negotiating with the Union, unilaterally dis-
continuing payment of pension and other fringe benefits
to the Union on behalf of its employees, and lowering
their wages.6 t
As stated in SAC Construction Co., 235 NLRB 1211,
1218 (1978):62
The law is well established that unilateral
changes of "wages, hours and terms and conditions
of employment" by an employer obligated to bar-
gain with the representative of its employees in an
appropriate unit violates Section 8(a)(5) of the Act.
Master Slack and/or Master Trousers Corp., et al.,
230 NLRB 1054 (1977). Benefits, such as payments
into health , welfare and pension funds on behalf of
employees, constitute an aspect of their wages and a
term and condition of employment which, along
with wage rates, survive the expiration of a collec-
tive-bargaining agreement and cannot be altered
without bargaining . Harold W. Hinson, d/b/a Hen
House Market Na 3, 175 NLRB 596 (1969), enfd.
428 F.2d 133 (C.A. 8, 1970).
Furthermore, it is well settled that upon the expiration
of a collective-bargaining agreement the law imposes a
continuing duty on both parties to attempt in good faith
to reach a new agreement and therefore an employer
may not unilaterally alter the terms and conditions of
employment set forth therein, as relates to mandatory
subjects of bargaining , in the absence of an impasse in
eo S. Freedman Electric, 256 NLRB 432 (1981); Roberts Electric Co.,
227 NLRB 1312 (1977).
61 The Respondent lowered Bogausch 's wage rate and made fringe
benefit payments directly to the employee rather than to the Union as
required . The Respondent similarly offered Crawford, on his appearance
to accept reemployment after layoff, these same terms and conditions of
employment . An employer's insistence on making required fringe benefit
contributions directly into employee paychecks rather than to a union
fund as required and its unilateral reduction of employee wage rates con-
stitutes unlawful direct dealing, and is violative of Sec. 8(aXl) and (5) of
the Act. S. Freedman Electric, supra. However, this conduct on the Re-
spondent's part was not specifically alleged in the consolidated amended
complaint although the Respondent did not object to the testimony estab-
lishing its conduct and in fact cross-examined the General Counsel's wit-
nesses closely with regard thereto. See Electrical Workers IBEW Local
1186 (Pacific Electric), supra at fn. 3.
02 Ent denied 603 F.2d 1155 (5th Cir. 1979), on the issue of the
union's majority status.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations ,83 the Union's loss of majority status,64 or a
waiver.65 As stated in Cauthorne Trucking, 256 NLRB
721 (1981):
[T]he Board had held that health and welfare and
pension fund plans which are part of an expired
contract constitute an aspect of employee wages
and a term and condition of employment which sur-
vives the expiration of the contract.... Thus, an
employer may not unilaterally alter payments into
such plans unless : (1) the changes are made subse-
quent to the parties' reaching a bargaining impasse
and the union has rejected the changes prior to the
impasse, (2) the employer demonstrates that, at the
time the changes were made , the union did not rep-
resent a majority of the unit employees or that the
employer had a good-faith doubt, based on objec-
tive considerations , of the union 's continuing major-
ity status , or (3) the union has wavied its rights to
bargain regarding the changes.
This is true about wage rates as well.66
Therefore, even assuming that the collective-bargain-
ing agreement was terminated on 21 April 1983, the Re-
spondent still had a statutory duty to recognize and bar-
gain with the Union, and it was unlawful for the Re-
spondent to unilaterally discontinue payment of pension
and other fringe benefits and lower employee wages
without negotiating these changes with the Union, and
the Respondent thereby violated Section 8(a)(1) and (5)
of the Act. Under the circumstances present in this case,
the Respondent cannot assert with any credibility that
the parties bargained to impasse , because the Respondent
in reality never even provided the Union with an oppor-
tunity to bargain regarding these changes prior to imple-
menting them . Also, the Respondent does not dispute the
Union's status as the exclusive bargaining representative
of its employees so as to contest majority representation.
Additionally, it is clear from the record evidence that
the Union did not waive its right to bargain over the de-
crease in wages and benefits and to protest the Respond-
ent's actions. The Union consistently took the position
that the terms of the bargaining agreement were in full
force and effect. Moreover, as the United States Court of
Appeals for the Ninth Circuit stated in American Distrib-
uting Co v. NLRB, supra, 715 F.2d at 450:
To assert successfully a waiver-by-inaction de-
fense, an employer must show that the Union had
clear notice of the employer's intent to institute the
change sufficiently in advance of actual implementa-
tion so as to allow a reasonable opportunity to bar-
gain about the change. See NLRB v. Crystal Springs
Shirt Corp., 637 F.2d 399, 402 (5th Cir. 1981); Inter-
national Ladies' Garment Workers Union v. NLRB,
sa Taurus Waste Disposal, 263 NLRB 309 (1982); S. Freedman Electric,
supra, SAC Construction Co., supra, NLRB v. Haberman Construction Co,
618 F.2d 288 (5th Cir. 1980)
64 SAC Construction Co., supra, South Texas AGC, supra at fn 5; Ted
Hicks & Associates, 232 NLRB 712 (1977) ( the union 's majority status was
unchallenged as here), Wayne Electric , 226 NLRB 409 (1976)
65 American Distributing Co v. NLRB, 715 F.2d 446 (9th Cir. 1983).
66 S Freedman Electric, supra
463 F.2d 907, 918-19 (D.C. Cir. 1972). Moreover,
the employer must demonstrate that the union failed
to make a timely bargaining request before the
change was implemented.67
This was not the case in the instant matter. Furthermore,
while the Respondent may contend that the Union never
requested bargaining, despite the fact that the Union's
use of the grievance procedure under the bargaining
agreement and its repeated requests to the Respondent to
abide by the terms and conditions of the agreement in
and of themselves constituted requests to bargain, the
Board has held that where the union is unaware of the
employer's intention to change the terms and conditions
of employment contained in the bargaining agreement
and the employer unilaterally makes these changes with-
out providing the union with an opportunity to bargain
thereon, as in the instant case, "Respondent cannot now
persuasively argue that it was not required to bargain
with the Union because the Union did not request such
bargaining."68
Moreover, as pointed out by the Union in its memo-
randum, article I, section 9 of the collective-bargaining
agreement contains a status quo clause providing for no
change in the provisions of the agreement pending reso-
lution of any disputes between the parties. The dispute
between the Union and the Respondent was referred to
the grievance-abritration procedures outlined in the col-
lective-bargaining agreement. No resolution was
achieved at the Joint Conference Committee stage of this
procedure. Thereafter, although requested to do so by
the Union, the Respondent refused to submit the dispute
to arbitration as set forth above. Consequently, in view
of the pendency of the dispute, the Respondent was
"contractually obligated to maintain the status quo pend-
ing resolution of that question pursuant to that proc-
ess."6 e
Accordingly and from all the above, I find and con-
clude that the Respondent, by repudiating the collective-
bargaining agreement with the Union and unilaterally
modifying the terms and conditions of employment as set
forth in the bargaining agreement, has refused to recog-
nize and bargain collectively with the Union in violation
of Section 8(a)(1) and (5) of the Act. 70
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices oc-
curring in connection with the operations of the Re-
87 Also see NLRB v. National Care Rental System , 672 F 2d 1182 (3d
Cir. 1982).
° B Ozark Trailers, 161 NLRB 561 , 564 (1966).
B9 Electrical Workers IBEW Local 1186 (Pacific Electrical), 264 NLRB
712, 713 (1982), enfd . 714 F.2d 152 (9th Cir 1983).
70 The Respondent , by its actions herein, has unilaterally changed ex-
isting terms and conditions of employment of its employees in the unit
described above , has repudiated the collective -bargaining process, and
has unilaterally withdrawn recognition of the Union by refusing to abide
by the collective-bargaining agreement regarding wage rates , fringe bene-
fit contributions , hiring hall provisions, and submission of "reporting
forms" to the Albany Benefit Trust Fund . See Clarence R. Yeager Distrib-
uting, 261 NLRB 847 , 849 (1982)
RAPPAZZO ELECTRIC CO.
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
Because the Respondent unlawfully repudiated the col-
lective-bargaining agreement in effect between itself and
the Union on 21 April 1983, I recommend that the Re-
spondent be required to honor all the terms and condi-
tions of the bargaining agreement retroactive to that date
and to recognize and deal with the Union as the exclu-
sive bargaining representative of its employees in the ap-
propriate unit.71 It is most likely that the bargaining
agreement has expired since its effective date ran from 1
July 1982 until 30 June 1984. However, under the princi-
ples of law enunciated above, the Respondent would be
obligated to continue to recognize the Union as the ex-
clusive bargaining representative of its employees in the
appropriate unit, to continue to comply with the terms
and conditions of the bargaining agreement, and to bar-
gain in good faith with the Union on demand until such
time as the parties reach an agreement or bargain to a
good-faith impasse.
Additionally, having found that the Respondent has
made unilateral changes in certain terms and conditions
of employment in violation of Section 8(a)(5) and (1) of
the Act, I recommend that the Respondent be ordered to
make whole its employees, including Peter Bogausch, by
making the required fringe benefit contribution's and
paying the wage rates as set forth in the collective-bar-
gaining agreement, plus interest, that it has failed to pay
since 21 April 1983, as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977).73 The Respondent should also be
required to comply with the hiring hall provisions of the
collective-bargaining agreement74 and to submit the nec-
91 Clarence R. Yeager Distributing, 261 NLRB 847 (1982), enfd. 718
F.2d 1109 (9th Cir. 1983); Pac(lic Intercom Co., 255 NLRB 184 (1981),
enfd . 679 F.2d 900 (9th Cir. 1982).
7 n Fringe benefit contributions shall be computed in the manner set
forth in Merryweather Optical Co., 240 NLRB 1213 (1979). Also see
Taurus Waste Disposal, 263 NLRB 309 (1982); Clarence R. Yeager Distrib-
uting, supra; Nelson Electric, 241 NLRB 545 fn. 3 (1979).
73 See Ogle Protection Service, 183 NLRB 682 (1970). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
74 If there are employees who were denied an opportunity to work for
the Respondent because of the latter 's refusal to abide by its collective-
bargaining agreement with the Union , the make-whole order shall en-
compass than. A determination whether such employees exist is best left
to the compliance stage of this proceeding . Clarence R. Yeager Distribut-
ing, supra; Wayne Electric, 226 NLRB 409 (1976). In the present. case,
Crawford's status was fully litigated . Therefore, the Respondent should
be ordered to compensate Perry Crawford for lost earnings, with interest,
resulting from his failure to work on the Ida Yarborough Homes jobsite
due to the Respondent 's refusal to apply the terms and conditions of the
bargaining agreement to him . See Clarence R. Yeager Distributing, supra;
V M Construction Co., 241 NLRB 584 (1979); Wayne Eectric, supra.
483
essary reporting forms to the Union 's Albany Benefit
Trust Fund. 7 s
CONCLUSIONS OF LAW
1. The Respondent, Rappazzo Electric Co ., Inc., is
now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, Local Union 724, International Brother-
hood of Electrical Workers, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The Respondent at all times material has been signa-
tory to an agreement providing, inter alia, that the Re-
spondent would be bound by the existing collective-bar-
gaining agreement between the Union and the Associa-
tion.
4. The following constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All journeymen and apprentice wiremen employed
by the employer-members of the Albany Chapter
and signatories to the Albany Chapter-Local 724
contract or letters of assent ; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
5. At all times material , the Union has been and is the
exclusive bargaining representative of all the employees
in the above-described appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
6. The Respondent has violated Section 8(a)(1) and (5)
of the Act by repudiating its collective -bargaining agree-
ment with the Union; refusing to bargain collectively
with the Union as the exclusive representative of its em-
ployees in the unit described above; unilaterally , without
prior notice to or consultation with the Union , effecting
changes in the wages, rates of pay, and other terms and
conditions of employment in the appropriate unit; not
using employees secured through the Union's hiring hall
as it is required to do under the terms of the agreement;
and failing and refusing to make fringe benefit contribu-
tions to the Union's Albany Benefit Trust Fund and
submit report forms thereto as required under the bar-
gaining agreement.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed76
75 Clarence R. Yeager Distributing, supra.
7e If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 par-
1»
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Rappazzo Electric Co., Inc ., Albany,
New York, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to abide by the collective-bar-
gaining agreement regarding wage rates, fringe benefit
contributions , hiring hall provisions , and submission of
reporting forms to the Union 's Albany Benefit Trust
Fund.
(b) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions of
employment with Local 724, International Brotherhood
of Electrical Workers, AFL-CIO as the exclusive bar-
gaining representative of its employees in the following
appropriate unit:
All journeymen and apprentice wiremen employed
by the employer -members of the Albany Chapter
and signatories to the Albany Chapter-Local 724
contract or letters of assent ; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
(c) Unilaterally changing wage rates and terms and
conditions of employment of employees in the above-de-
scribed appropriate unit without first reaching agreement
with the Union about such changes.
(d) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.77
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain on request with the Union
as the exclusive representative of its employees in the
aforesaid appropriate unit and honor and abide by the
collective-bargaining agreement, including the hiring hall
provisions.78
(b) On request, rescind any and all unilateral changes
the Respondent made on and after 21 April 1983 in the
Respondent's wages, wage rates, and other terms and
conditions of employment under the collective-bargain-
ing agreement.
(c) Make whole its employees, including, among
others, Peter Bogausch and Perry Crawford, in the
manner set forth in the remedy section of this decision
by making the required fringe benefit contributions and
by paying to employees' wage rates, with interest, all as
required by its collective-bargaining agreement with the
Union, that it has failed to pay since 21 April 1983.79
(d) Submit the necessary forms to the Union's Albany
Benefit Trust Fund.8°
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
" Clarence R. Yeager Distributing, supra
78 Ibid.
48 See Clarence R. Yeager Distributing , supra Also see Wayne Electric,
supra.
80 Clarence R. Yeager Distributing, supra.
essary to analyze the amount of money due under the
terms of this recommended Order.
(f) Post at its Albany, New York place of business
copies of the attached notice marked "Appendix."81
Copies of the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent'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. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
81 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and con-
ditions of employment with Local Union 724, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO as
the exclusive representative of our employees in the fol-
lowing appropriate unit:
All journeymen and apprentice wiremen employed
by the employer-members of the Albany Chapter
and signatories to the Albany Chapter-Local 724
contract or letters of assent; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT fail and refuse to abide by the collec-
tive-bargaining agreement regarding wage rates, fringe
benefit contributions, hiring hall provisions, and submis-
sion of reporting forms to the Union's Albany Benefit
Trust Fund.
WE WILL NOT unilaterally change wage rates and
terms and conditions of employment of employees in the
above-described appropriate unit without first reaching
agreement with the Union about such changes.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL recognize and bargain on request with the
Union as the exclusive representative of our employees
RAPPAZZO ELECTRIC CO. 485
in the above-described unit and honor the collective-bar- our collective-bargaining agreement with the Union,
gaining agreement in all its terms, including the hiring which we have failed to pay since 21 April 1983.
hall provisions. WE WILL submit the necessary forms to the Union's
WE WILL make whole our employees by making the Albany Benefit Trust Fund.
required fringe benefit contributions and by paying to
employees wage rates, with interest, all as required by RAPPAzzo ELECTRIC Co., INc.