Reliable Electric Co., Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1987

286 N.L.R.B. 834 (N.L.R.B. 1987)

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Reliable Electric Co., Inc. and International Broth-
erhood of Electrical Workers, Local Union No.
68. Case 27-CA-8682
9 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
On 28 December 1984 Administrative Law
Judge Burton Litvak issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs, the Respondent
filed cross-exceptions and a supporting brief, the
General Counsel and the Charging Party filed an-
swering briefs to the cross-exceptions, and the Re-
spondent filed an answering brief to the General
Counsel's and Charging Party's exceptions and sup-
porting briefs.
On 3 February 1986 the Board scheduled oral ar-
gument in this proceeding and related cases 1 be-
cause they presented important issues in the admin-
istration of the Act. The notice of hearing stated
that the Board would entertain argument on vari-
ous issues raised under Section 8(f) of the Act by
the several cases. An order and supplement to the
notice of hearing issued on 12 March 1986.
On 24 March 1986 the Respondent, the General
Counsel, the Union, the American Federation of
Labor and Congress of Industrial Organizations,
the AFL-CIO's Building and Construction Trades
Department, the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, the Associated Builders and Contrac-
tors, Inc., the Council on Labor Law Equity, and
the National Right to Work Legal Defense Foun-
dation, Inc.2 presented oral argument before the
Board. The parties and the amici curiae have filed
briefs and statements of position.
The Board has considered the decision and the
record in light of the exceptions and briefs, oral ar-
guments, and statements of position and has decid-
ed to affirm the judge's rulings, findings,3 and con-
clusions only to the extent consistent with this De-
cision and Order.
i John Deklewa & Sons, 282 NLRB 1375 (1987), Viola Industries, 286
NLRB 306 (1987)
2 The AFL-CIO, its Building and Construction Trades Department,
the Teamsters, the Associated Builders and Contractors, the Council on
Labor Law Equity, and the National Right to Work Legal Defense
Foundation appeared as amici curiae
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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
The record reveals that on 8 June 1976 the Re-
spondent, an electrical contractor, signed two Let-
ters of Assent-A, which authorized the Rocky
Mountain Chapter of the National Electrical Con-
tractors Association (NECA) to act as its collec-
tive-bargaining representative and bound the Re-
spondent to the then current Denver Inside Electri-
cal Construction Agreement (commercial agree-
ment)4 and the Denver Residential Wiring Agree-
ment (residential agreement) between NECA and
the Union. NECA and the Union entered into suc-
cessive commercial agreements in 1978 and 1980
and an agreement effective from 1 April 1981 to 31
March 1983. It is undisputed that the Respondent
adhered to and fully complied with each agree-
ment.
In early 1982 the Respondent's president, Antho-
ny M. Prilika, met with NECA Executive Director
R. L. Massey and informed him he no longer
wished to be a member of NECA. The Respondent
ceased paying membership dues. Thereafter, at the
direction of the association's board of directors,
Massey informed Prilika that, under the associa-
tion's bylaws, such a request to resign must be
made in writing. Although Prilika testified that he
had sent a letter of resignation to NECA in which
he also withdrew authorization for the association
to bargain collectively on the Respondent's
behalf,5 the judge found no credible evidence sup-
porting this contention. He also found, contrary to
the Respondent's contention, that no such letter
had been transmitted to the Union.
In August 1983, NECA and the Union executed
a successor commercial agreement effective by its
terniis from 1 April 1983 to 31 March 1986. Fol-
lowing expiration of the prior agreement, the Re-
spondent continued to pay unit employees contrac-
tual wages and benefits. At the time, 50 to 60 per-
cent of the work it was performing was under Fed-
eral contract on the Rocky Flats project , a nuclear
energy complex. According to the Respondent, its
continued adherence to the contractual rates and
benefits in 1983 was coincidental to its obligation as
a Federal contractor under the Davis-Bacon Act to
4 The then current commercial agreement was effective by its terms
from I April 1976 to 31 March 1978
5 Execution of Letter of Assent-A, rather than mere membership, au-
thorizes NECA to bargain on behalf of employer-members and non-
members alike and binds those employers to the applicable collective-bar-
gaining agreements E g, Vincent Electric Co , 281 NLRB 903 (1986) We
find it unnecessary to pass on the issue of whether, in view of the inter-
vening decision in Deklewa , we would adhere to the Board 's dismissal of
the petition in Vincent
Chairman Dotson agrees that the Respondent intended to be bound by
NECA 's bargaining authority under the circumstances of this case, but he
notes his view that execution of a Letter of Assent -A is not always con-
clusive proof of an employer 's intent to delegate such authority See the
Chairman's dissent in Vincent Electric, supra
286 NLRB No. 83
RELIABLE ELECTRIC CO. 835
pay journeymen wiremen and apprentices "prevail-
ing" wages and benefits identical to those paid
under the commercial agreement. Other Denver
City and Colorado state projects the Respondent
undertook at this time were also governed by local
prevailing wage requirements. In addition, Prilika
testified, to facilitate bookkeeping, he paid electri-
cians working on other projects the same wages
and benefits paid on Government contract jobs.
During 1983, in the face of mounting competi-
tion from nonunion contractors, the Respondent
discussed with a number of employees the prospect
of converting to a nonunion operation. Toward the
end of that year, the Respondent and the Union en-
gaged in an exchange of correspondence in which
the Respondent maintained it was not bound by the
terms of the 1983-1986 commercial agreement and
that NECA no longer represented it for purposes
of collective bargaining. By its letter of 1 Decem-
ber 1983 to the Union, the Respondent took the
position that, following its alleged "cancel[lation]"
of authorization to NECA to bargain on its behalf,
it assumed that the Union "had abandoned repre-
sentation of the several electricians we employ." In
this letter, the Respondent further stated that,
unless the Union notified it of its intention to bar-
gain over a new contract within 10 days, it would
proceed to implement unilateral changes in unit
wages and fringe benefits. By letter of 14 Decem-
ber 1983, the Union responds that it "has never re-
ceived a written notice form . . . terminating [its]
Letter of Assent," and that it considered the Re-
spondent bound by the then current commercial
agreement.
In mid-January 1984 the Respondent met with
assembled commercial and residential wiremen and,
in Prilika's words, "told them the company cannot
make it with its structure right now. Either we
make some changes or the company will go
broke." Prilika further asserted that the Union had
declined to respond to his requests for bargaining
and that "we are going to become open shop." Pri-
lika responded to an employee's question whether
he meant "nonunion" by saying; that "if that's what
you call nonunion, that's what is nonunion." Prilika
made clear that thereafter employees would no
longer be paid wages and benefits in accordance
with the contract.
At the mid-January meeting Prilika also dis-
cussed a written employment contract, which on
24 January he presented to individual journeymen
wiremen. These contracts specified an hourly wage
rate for commercial wiremen of $15 per hour, a
rate that was lower than the commercial contract
wage rates, and they differed from the commercial
contract with respect to certain benefits. Contracts
containing identical terms and conditions of em-
ployment except for an $11 wage rate were pre-
sented to four residential wiremen. In a series of
conversations with individual employees, the Re-
spondent presented the terms specified in the em-
ployment contracts as the only conditions under
which they could continue working for the Re-
spondent. Five commercial journeymen wiremen-
Bruce Knoke, Kim Maclntyre, James Belshe, Bill
Jackson, and Bob Holcomb-and one commercial
apprentice wireman, Dale Wittwer, refused to exe-
cute individual contracts and left the Respondent's
employ, while the two others, Bob McFarren and
Steven Godwin, continued working.6
In John Deklewa & Sons,7 we set forth the fol-
lowing principles governing an 8(f) relationship:
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
expiration of such agreements, the signatory
union will enjoy no presumption of majority
status, and either party may repudiate the 8(f)
bargaining relationship.8
We abandoned the so-called conversion doctrine,
which vested an 8(f) union with status as a 9(a)
representative by means other than a Board elec-
tion or voluntary recognition.9 We likewise reject-
ed precedent viewing an unconverted 8(f) agree-
ment as unenforceable and subject to unilateral re-
pudiation at any time. l o
The judge, under then-applicable precedent, con-
cluded that the Union never enjoyed 9(a) majority
representative status, that the Respondent was
therefore justified in refusing to abide by the com-
mercial agreement, and that such unilateral repudi-
ation of the agreement did not violate Section
8(a)(5). Under the 8(f) principles announced in
Deklewa, we reverse.
The Respondent voluntarily entered into an 8(f)
relationship with the Union. By one of the two
Letters of Assent-A it signed in 1976, the Respond-
6 least one other employee, Brian Regg, and possibly a fourth, con-
tinued to work for the Respondent after 24 January Regg 's unit status is
unclear from the record Commercial wireman Gilbert Cito did not testi-
fy and the record does not show whether or under what circumstances
he may have left the Respondent's employ
7 Supra
282 NLRB at 1377-1378
Id at 1385-1386
i° Id at 1384-1385
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent authorized NECA to represent it in collective
bargaining and to be bound by the then current
commercial agreement . Further, the Respondent's
authorization to NECA did not terminate at the
end of the then current commercial agreement, but
bound it to succeeding agreements as well." Au-
thorization continued unless the Respondent subse-
quently took some action effectively withdrawing
the multiemployer group's authority to bargain on
the Respondent's behalf. As found by the judge, no
such notice had been given at the time the 1983-
1986 successor commercial agreement was execut-
ed or the following winter when the Respondent
repudiated that agreement. Under the Deklewa
principles, the successor commercial agreement
was "binding, enforceable, and not subject to uni-
lateral repudiation by the Respondent."12 Thus,
the Respondent's unilateral repudiation of the con-
tract violated Section 8(a)(5).
The Respondent, by Prilika, both at his 24 Janu-
ary 1984 employee meeting and in subsequent con-
versations with individual employees, conveyed the
message that the Respondent no longer considered
itself bound by the 1983-1986 successor commer-
cial agreement. It extended to them individual em-
ployment contracts to sign, with the understanding
that any future employment would be grounded in
terms specified therein. The Respondent effectively
presented the employees with the Hobson's choice
between continued employment with lower wages
and benefits or no employment at all, rather than
receipt of benefits provided by the successor com-
mercial agreement. It thereby constructively dis-
charged the forelisted six commercial journeymen
and apprentices in violation of Section 8(a)(3).' 3
We do not, however, find a comparable 8(a)(5)
violation with respect to the residential wiremen.
The amended complaint contains no allegations
that the Respondent had a bargaining obligation
with respect to employees covered by the residen-
tial agreement or that it violated Section 8(a)(1)
and (5) with respect to a unit of residential wire-
men. As noted by the judge, the General Counsel
was afforded the opportunity and specifically de-
clined further to amend the complaint at hearing to
include such allegations . Thus, we cannot conclude
that issues regarding the Respondent's compliance
1 See McCormick Electrical Construction , 240 NLRB 418 , 424 (1979)
12 Deklewa , supra at 1389 The finding that a continuing contractual
obligation existed turns on our determination that the Respondent had
not successfully revoked NECA's bargaining authority , but this does not
mean that the Respondent 's employees were necessarily part of a multi-
employer bargaining unit In Deklewa, the Board rejected the so-called
merger doctrine 's application in 8(f) cases and held that the appropriate
unit for representation elections will normally be the single employer's
employees covered by an 8(f) agreement Deklewa, supra at 1377
13 See White-Evans Service Co, 285 NLRB 81 (1987), Superior Sprin-
kler, Inc, 227 NLRB 204 (1976)
with the residential agreement were fully and fairly
litigated. Because, so far as the record shows, the
residential wiremen had no right to require the Re-
spondent to adhere to any agreement covering
their terms and conditions of employment and be-
cause, under Deklewa, the Respondent had no post-
contractual obligation to bargain with the Union
for any new collective-bargaining agreement, the
Respondent's refusal to offer the residential wire-
men jobs covered by a union agreement did not
amount to a forced choice between yielding a Sec-
tion 7 right on not having employment with the
Respondent. Furthermore, the record contains no
evidence that the Respondent violated Section
8(a)(3) in any other manner with respect to these
employees. Accordingly, we dismiss complaint alle-
gations that the Respondent constructively dis-
charged residential wiremen Arthur Veldez, Napo-
leon Williams, Jeffrey Slovsly, and Craig Terry in
violation of Section 8(a)(3).
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices , we shall order that it
cease and desist and take certain affirmative action
designed to effectuate the policies of the Act. We
shall order the Respondent to make whole, as pre-
scribed in Ogle Protection Services , 183 NLRB 682
(1970), and Kraft Plumbing , 252 NLRB 890 (1980),
employees for any losses they may have suffered as
a result of the Respondent 's failure to adhere to the
commercial agreement since January 1984, with in-
terest , as computed in the manner prescribed in
New Horizons for the Retarded.'4
In view of the rules set forth above , we shall not
extend the make-whole remedy for noncompliance
with the provisions of the 1983-1986 contract
beyond the expiration date of that contract.'s
The Respondent, having violated Section 8(a)(3)
and (1) of the Act by constructively discharging
Bruce Knoke, Kim Maclntyre , James Belshe, Bill
Jackson , Bob Holcomb, and Dale Wittwer, must
offer them reinstatement and make them whole for
any loss of earnings and other benefits , computed
14 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987 ), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 US C § 6621 ) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments Therefore , any additional amount owed with re-
spect to fringe benefit and pension funds shall be determined in accord-
ance with Merryweather Optical Co, 240 NLRB 1213, 1216, fn 7 (1979)
15 See Deklewa, supra at 1390
RELIABLE ELECTRIC CO 837
on a quarterly basis from the date of discharge to
date of proper offer of reinstatement , less any net
interim earnings , as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that
the Respondent , Reliable Electric Company,
Denver, Colorado , its officers, agents , successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition during the term of
a collective-bargaining agreement from Internation-
al Brotherhood of Electrical Workers , Local Union
No. 68 , as the exclusive collective -bargaining rep-
resentative of the Respondent ' s employees covered
by the agreement.
(b) Refusing to adhere to its 1983-1986 collec-
tive-bargaining agreement with the Union until the
31 March 1986 expiration date.
(c) Unlawfully terminating employees or other-
wise unlawfully discriminating with regard to their
wages and terms and conditions of employment.
(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Bruce Knoke, Kim Maclntyre, James
Belshe , Bill Jackson, Bob Holcomb , and Dale
Wittwer reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed and make them whole for any loss of earn-
ings or other benefits suffered as a result of the dis-
crimination against them , in the manner set forth in
the remedy section of this decision.
(b) Make whole employees covered by the com-
mercial agreement, in the manner set forth in the
remedy , for any losses they may have suffered as a
result of the Respondent 's failure to adhere to the
contract until it expired on 31 March 1986.
(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records , social security payment
records , timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at at its Denver, Colorado, office copies
of the attached notice marked "Appendix."16
Copies of the notice, on forms provided by the Re-
gional Director for Region 27, 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.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by International Brotherhood
of Electrical Workers, Local No. 68, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
16 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 ordered us to post and abide by this notice.
WE WILL NOT, during the term of a collective-
bargaining agreement , repudiate that agreement
and withdraw recognition from International
Brotherhood of Electrical Workers, Local No. 68,
as the exclusive collective-bargaining representative
of our employees covered by the agreement.
WE WILL NOT refuse to adhere to our 1983-1986
collective-bargaining agreement with the Union
until the 31 March 1986 expiration date.
WE WILL NOT unlawfully terminate employees
or otherwise unlawfully discriminate with regard
to their wages and terms and conditions of employ-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer Bruce Knoke, Kim Maclntyre,
James Belshe, Bill Jackson, Bob Holcomb, and
Dale Wittwer immediate and full reinstatement to
their former positions or, if those jobs no longer
exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or
privileges previously enjoyed, and WE WILL make
them whole for any loss of earnings and other ben-
efits resulting from their discharge, less any interim
earnings, plus interest.
WE WILL notify Bruce Knoke, Kim Maclntyre,
James Belshe, Bill Jackson, Bob Holcomb, and
Dale Wittwer that we have removed from our files
any reference to the unlawful discharges and that
the discharges will not be used against them in any
way.
WE WILL make our employees whole for any
losses they may have suffered as a result of our
failure to adhere to the 1983-1986 contract with
the Union until it expired on 31 March 1986.
RELIABLE ELECTRIC COMPANY
Barbara E. Young, Esq., for the General Counsel.
Larry Marquess, Esq. (Stettner, Miller & Cohen , P.C.), of
Denver , Colorado , for the Respondent.
Martin D. Buckley, F. C., of Denver , Colorado , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The
above-captioned matter was heard by me on October 11
and 12, 1984, in Denver, Colorado. On September 13,
1984, the Regional Director for Region 27 of the Nation-
al Labor Relations Board (the Board) issued an amended
complaint, based on an original and first amended unfair
labor practice charge filed on January 27 and July 10,
1984, respectively, by International Brotherhood of Elec-
trical Workers, Local Union No. 68 (the Union), alleging
that Reliable Electric Co., Inc. engaged in unfair labor
practices violative of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act)." Respondent
filed an answer essentially denying the commission of
any unfair labor practices. At the hearing, all parties
were afforded the opportunity to examine and cross-ex-
amine witnesses, to present any and all relevant evi-
dence, to argue their legal positions orally, and to file
posthearing briefs. The latter were filed by the General
Counsel and by counsel for the Respondent; both briefs
have been carefully considered. Accordingly, based on
the entire record herein, including the posthearing briefs
and my observation of the demeanor of the witnesses, I
make the following
At the hearing, counsel for the General Counsel sought and was
granted permission to amend par V of the amended complaint, adding
the names of four individuals as alleged discriminatees
FINDINGS OF FACT
1. JURISDICTION
At all times material, Respondent has been a State of
Colorado corporation, maintaining its principal office
and place of business in Denver, Colorado, and engaged
in business as an electrical contractor. In the normal
course and conduct of the business operations, Respond-
ent annually performs services valued in excess of
$50,000 for firms, each of which annually purchases and
receives goods, materials, and services valued in excess
of $50,000 directly from locations outside the State of
Colorado. Respondent admits that, at all times material,
it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all times material, the Union has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. ISSUES
1. Did Respondent violate Section 8(a)(1) and (5) of
the Act on November 21, 1983, by refusing to adhere to
and repudiating an existing collective-bargaining agree-
ment with the Union?
2. Did Respondent violate Section 8(a)(1) and (5) of
the Act in January 1984 by unilaterally reducing the
wage rates of its employees covered by the aforesaid col-
lective-bargaining agreement, by ceasing to make pay-
ments on behalf of the employees to various fringe bene-
fits trust funds as set forth in the collective-bargaining
agreement, and by unilaterally implementing health in-
surance and life insurance programs for the above em-
ployees?
3. About January 24, 1984, did Respondent construc-
tively discharge employee James Belshe, Gilbert M.
Cito, Robert G. Holcomb, Bill R. Jackson, Craig D.
Terry, Arthur R. Valdez, Napoleon Williams, Bruce
Knoke, Kim Maclntyre, Dale Wittwer, and Jeffrey
Slavsky in violation of Section 8(a)(1) and (3) of the Act?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent is engaged in
business as an electrical contractor in Denver, Colorado,
and throughout its surrounding areas; that Anthony M.
Prilika is the president of the corporation and the indi-
vidual responsible for all labor relations matters; and that
Prilika purchased the assets of Respondent and assumed
operational control over the business in May 1976. The
work of Respondent consists of new electical construc-
tion, remodeling of existing structures and residential and
commercial service calls for various customers-includ-
ing government (Federal, state, and local), general con-
tractors, owner-builders, and private parties. At least
through January 1984, in order to perform the work, Re-
spondent employed journeymen electrical wiremen and
apprentices. The record further establishes that, when
Prilika purchased the assets of Respondent in 1976, it
RELIABLE ELECTRIC CO. 839
was, and had been for the preceding 25-year period, an
employer-member of the Rocky Mountain Chapter of
the National Electrical Contractors Association
(NECA)2 and that, at the time of purchase, Respondent
was bound to the existing collective-bargaining aree-
ments between NECA and the Union, covering both
commercial and residential electrical work.3
Prilika testified that, a few weeks after he began oper-
ating the business of Respondent, on June 8, 1976,
Robert Ligino, the business manager of the Union, vis-
ited Respondent's office and told him that, inasmuch as
Prilika was the new owner, he would be required to exe-
cute new Letters of Assent-A.4 According to Pnlika,
Ligino handed the forms to him, assuring Respondent's
president that nothing in the Letter of Assent-A would
"haunt" the Company as "everybody do it that belongs
to the Union. Since I'm still a union member, that it
couldn't hurt me, this was just a formality." Prilika, who
had no prior experience in collective bargaining, exam-
ined the documents and asked, "am I signing my life
away . . . and he said, 'No, this is just the duration of
the agreement ."' Thereupon, Prilika testified, he signed a
Letter of Assent-A for the existing commercial contract
and another for the then-current residential agreement.
Bearing Prilika's signature beneath Respondent's name
and the date June 8 , 1976, the former document, General
Counsel's Exhibit 2, reads as follows:
In signing this letter of assent, the undersigned
firm does hereby authorize Rocky Mountain Chap-
ter, NECA as its collective bargaining representa-
tive for all matters contained in or pertaining to the
current approved Denver Inside Electrical Con-
struction labor agreement between the Rocky
Mountain Chapter, NECA and Local Union 68,
IBEW. This authorization, in compliance with the
current approved labor agreement, shall become ef-
fective on the 7th day of June, 1976. It shall remain
in effect until terminated by the undersigned em-
ployer giving written notice to the Rocky Mountain
8 NECA is an organization composed of employer engaged in electri-
cal contracting One of its main functions is the negotiation and the ad-
ministration of collective -bargaining agreements with the Union for em-
ployers (whether members or not) who have assigned bargaining rights
to NECA
a The commercial electrical work was covered by the Denver Inside
Electrical Construction agreement , commonly called the commercial
agreement , effective from April 1, 1976, until March 31, 1978, and the
residential work was the subject of the existing Denver Residential
Wiring contract , commonly called the residential contract
* The record establishes that NECA is comprised of both union and
nonunion contractors and, according to R L Massey , the executive di-
rector of the association from 1972 until June 1983, membership alone
does not bind a contractor to any of the colective -bat gaining agreements,
negotiated by NECA, with the Union. Rather, the execution of a Letter
of Assent-A by an employer-member is the means by which the contrac-
tor authorizes NECA to bargain , on its behalf, with the Union and binds
itself to the applicable existing agreement In this regard , non-NECA
members also execute the aforementioned assent letters , thereby binding
themselves to NECA bargaining in the same manner, and with the identi-
cal effect , as NECA members
There is no record evidence as to the names of the employers who
were members of the NECA-represented rnultiemployer group for any of
the successive commercial contracts , not as to the numbers of inside
wiremen employed by the employers , nor as to the percentage of same
who were members of the Union
Chapter, NECA and to the Local Union at least
one hundred fifty (150) days prior to the then cur-
rent anniversary date of the aforementioned ap-
proved labor agreement.
Prilika further testified that "I'm pretty sure" a copy of
the current commercial contracts was in the possession
of Respondent by June 8, 1976, and that it had been
paying, and continued to pay, the wages and fringe bene-
fits set forth therein.
The record discloses that successor agreements to the
aforementioned commercial contract became effective on
April 1, 1978, April 1, 1980, and April 1, 1981, with the
latter in effect until March 31, 1983. There is no dispute
that Respondent adhered to the terms and conditions of
employment set forth in these successive agreements, in-
stituting any required changes. According to Prilika,
while never asked to execute a new Letter of Assent-A,
he nevertheless honored these Inside Electrical Con-
struction contracts as "I was a member of . . . NECA
. . . and I thought . . . . As long as you are a member,
that you pay what they ask you." However, dissatisfied
that NECA accepted into membership nonunion contrac-
tors who had a competitive advantage over union con-
tractors such as Respondent, Prilika sought to terminate
Respondent's membership in the Association early in
1982. He testified that during the winter of that year, he
met with R. L. Massey, the executive director of
NECA, "and I informed him that we do not wish to be a
member any longer of NECA." Accordingly, Prilika
ceased paying Respondent's membership dues, and, on
June 3, 1982, he dispatched a letter to Massey in which
he reiterated that "we are not a member of the Rocky
Mountain Chapter NECA and have not signed an agree-
ment as such." Despite these actions, the board of direc-
tors of NECA met in July, considered Prilika's verbal re-
quest to resign, and directed Massey to inform Prilika
that, pursuant to the association's bylaws, Respondent's
resignation request must be in writing. Thereupon, by
letter dated July 15, 1982, Massey so informed Prilika.6
Respondent's president testified that Massey, indeed,
requested "a letter that he can present to the governing
body of NECA so that I can be officially out of the or-
ganization"; that Prilika responded , in writing , within 2
or 3 days; and that a copy of this letter was sent to the
Union. According to Pnlika, his reply letter was worded
as follows: "that I do not wish to belong any longer to
NECA because his organization is not functioning to my
satisfaction. I withdraw all my bargaining rights with
Local 68, and . . . from now on, I will bargain direct
with Local 68, and if there's . . . anything that might
6 The Denver Inside Electrical Construction agreement established the
terms and conditions of employment for journeymen wiremen and ap-
prentices who perform commercial construction jobs The existing 1976
contract contained a union-security clause, requiring union membership
after the seventh day following employment, and an exclusive hiring hall
provision establishing the Union as "the sole and exclusive" source of re-
ferrals for available jobs
B Examination of C P Exh 4, the July 15 Massey letter to Pnlika, dis-
closes that there is no mention therein of the Union, the NECA collec-
tive-bargaining agreements with the Union, or Respondent' s assignment
of bargaining rights to the association
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occur, that I want Local 68 to bargain with me direct."
The existence of this letter is a major issue in this case
and, in this regard, Prilika admitted that, while he cus-
tomarily retains copies of all his correspondence, he did
not have a copy of this document;' Jeff Crawford, the
current executive director of NECA and the successor to
Massey in that position, testified that he conducted a
search of NECA's files and could locate no letter in
which Prilika terminated Respondent' s assignment of
bargaining rights to NECA; s and both Jim Campbell, the
Union's present business manager, and Albert W.
Wright, an assistant business manager of the Union from
July 27, 1983, until March 12, 1984, testified that they
searched through the Union's files and could find no
such letter.9 However, while doubting that such indicat-
ed that a copy was being mailed to the Union, 10 R. L.
Massey recalled, "We received a letter from [Respond-
ent] advising us that we were no longer authorized-
they were resigning their membership from the Associa-
tion, and we were no longer authorized to bargain for
them." In addition, there is no dispute that during the
November 18, 1982 labor-management committee meet-
ing, attended by representatives of signatory contractors
and by union officials and at which procedural arrange-
ments for the upcoming Inside Electrical Construction
Contract renewal negotiations were discussed, Massey
listed the contractors who had canceled their bargaining
authorizations to NECA and for whom the association
was not bargaining and included Respondent among the
enumerated contractors. i i Finally, Prilika further testi-
fied that he spoke to William Heffernan, the Union's
business manager and successor to Robert Ligino, 12
sometime in 1982 and "I told him that I'm not NECA
member any longer and that I signed a letter to NECA
and to him, that they do not have any bargaining rights
for me. He told me he was aware of that." Neither Hef-
fernan nor Ligino was called as a witness by the General
Counsel or the Union, and no excuse was offered for the
failure of both to testify.
There is no dispute that neither concurrently with the
1982-1983 commercial contract negotiations with NECA
nor subsequent to the bargaining did the Union ever re-
While retaining copies of other relevant correspondence herein, Pn-
lika averred that his copy of this letter was lost or misplaced as a result
of the moving of Repondent's office and place of business from one loca-
tion to another Later, he admitted that such , in fact, occurred early in
1982
8 R L Massey testified that if such a letter was sent to him, it would
still be in NECA's files.
9 Campbell also testified that he was the Union's assistant business
manager during 1982 and 1983 and that, during that period , he neither
saw such a document nor was advised by other union officials that Re-
spondent had withdrawn its bargaining authorization from NECA and
wished to bargain directly with the Union
10 Massey based his "doubt" on the fact that the letter "was more ad-
dressing the membership status of [Respondent] with the Association,
that they were terminating their membership and cancelling our right to
do any bargaining
11 While unaware of any such written notification by Respondent to
the Union prior to this meeting, Campbell admitted that Massey did men-
tion Respondent as one of the above contractors. He testified that he said
nothing as he was not the union spokesperson at the meeting
12 Prilika asserted that subsequent to mailing a copy of the disputed
letter to the Union, he had lunch with Ligino and informed the latter of
his action According to the witness, he knew that Ligino was no longer
an official of the Union but rather j ust a "friendly advisor "
quest that Respondent bargain with it on an individual
basis. i a In this regard, Prilika testified that Heffernan
ended their above conversation, saying, "I will come
back to you in the proper time." However, hearing noth-
ing from the union official for the next 3 or 4 months,
Prilika assertedly telephoned Heffernan sometime in 1983
and inquired as to their "promised" meeting; Heffernan
replied that "now I'm in too much trouble with the .. .
International, and I really don't have the time to talk to
you about it." Accordingly, Prilika further testified, on
the expiration of the existing commercial agreement on
March 31, 1983, to which Respondent concededly was
bound, and the implementation of the successor there-
to ,14 as Respondent had withdrawn its authorization to
NECA to bargain on behalf of Respondent and as no
bargaining had taken place on an individual basis with
the Union, he did not believe that Respondent was, in
any way, bound to the successor commercial contract or
obligated to adhere to its terms and conditions of em-
ployment. Nevertheless, Respondent concedes that it did,
in fact, apply these to its commercial employees by dint
of the type of commercial contract work it performed.
Thus, Prilika estimated that up to 60 percent of the elec-
trical work during 1983 was pursuant to a contract with
a governmental entity and testified that most of this was
new construction work performed for the Federal Gov-
ernment at what is termed the Rocky Flats project, a
large nuclear energy complex located west of Denver. It
is, of course, clear that for this work Respondent was re-
quired to pay its journeymen wiremen and apprentices
the "prevailing" wages and fringe benefits for their
labor, and the record discloses that, based on analysis of
the various exhibits herein concerning the Rocky Flats
project, the prevailing terms and conditions of employ-
ment established for journeymen wireman and appren-
tices working there are identical to those set forth in the
Union's commercial contracts and that Respondent is no-
tified by the Federal Government regarding any changes
in terms and conditions of employment without reference
to the commercial agreement itself.15 Prilika further tes-
tified that he paid all his commercial employees the iden-
tical wages and fringe benefits as those paid for work on
Government projects16 inasmuch as "when you have a
13 Jim Campbell testified that it was the practice of the Union to con-
duct individual negotiations with any contractor that withdraws its bar-
gaining authorization from NECA in accord with the specifications of
Letter of Assent-A.
14 The record reveals that NECA and the Union agreed to the terms
of a successor commercial contract during the summer of 1983, that both
parties ratified the agreement , but that the International Brotherhood of
Electrical Workers disallowed the agreement. Subsequently , there was
litigation over what had occurred ; a settlement reached in the spring of
1984, with the terms of the initial agreement remaining in effect until the
settlement was reached.
15 Respondent 's counsel , in his posthearing brief, correctly points out
that the changes set forth in R Exh 6 correspond to commercial agree-
ment , G C Exh 6(e)
16 The prevailing wage concept also applied to commercial contract
work with the State of Colorado. Thus, art 16 of the Colorado Revised
Statutes provides that for such contracts for amounts in excess of $5000,
a provision must be included that requires the wage rates must not be less
than the prevailing rates for similar work in the area According to Pri-
lika, the rate coincided with the commercial contract rates
RELIABLE ELECTRIC CO. 841
majority of your employees who work on the prevailing
wage rate, you would really have a hard time keeping
abreast of work on different rates. So if you pay every-
body the same and keep your bookkeeping straight, it's
that much easier to." The point of the foregoing is, of
course, that Respondent's "adherence" to the successor
commercial contract was asserted] y coincidental rather
than an acknowledgement of Respondent's obligation to
be bound thereby. 17
No matter how Respondent came to pay its commer-
cial employees the union negotiated wages and fringe
benefits during 1983, it was uncontroverted that during
the year its earnings were in a period of rather steep de-
cline due to the competition from nonunion electrical
contractors in the Denver area. According to Prilika, his
company was losing money primarily because "I
couldn't successfully compete for the jobs because my
labor was too high " The record establishes that, in order
to more successfully compete for jobs, Prilika, early in
1983, began discussing with Respondent's employees the
possibility of transforming it into a nonunion operation.
Thus, Prilika admitted that, "because we could not make
any money," he told James Belshe and "a number of"
other employees "I am not signatory to contract, and
whenever the government job's going to finish . . . we
will go open shop." Belshe, who is an inside journeyman
wireman and worked for Respondent since April 1980,
testified that "on numerous occasions during 1983 he
heard Prilika say "it was looking like he was going to
have to go" nonunion "because he was going broke."
With the above as background, the record reveals that
the initial contract Respondent had with the Union re-
garding the successor commercial contract was in the
form of a copy of a letter dated November 11, 1983,
from Heffernan to NECA, reading as follows:
The changes to the Denver Inside Electrical
Construction Agreement, which were ratified by
our respective memberships on August 16, 1983,
have been disapproved by the International Office
of the IBEW. Therefore, in accordance with Sec-
tion 1 03 of the Agreement, these changes are null,
void, and without effect.
Any provisions of the August 16 changes, which
were implemented in anticipation of approval, must
be immediately rescinded. Local Union 68 will
expect and demand full compliance with all terms
and conditions of the Agreement of April 1, 1983.
By letter dated November 21, 1983, Prilika replied to
Heffernan that he was "mystified" as to why he had
been sent a copy of the above letter and asserted that "as
your records will reflect, NECA does not act as our col-
lective-bargaining representative, for purposes of labor
negotiations with the IBEW" and that Respondent was
not signatory to the successor commercial contract. On
December 1, Heffernan wrote to Prilika that the Union
17 In fact, Prilhka asserted that, not only was Respondent under no
duty to apply the terms of the successor commercial agreement to his
employees , but also its obligation to even bargain with the Union ceased
with the expiration of the 1981-1983 agreement because "they never con-
tacted me for any reason, whatsoever "
had in its files a Letter of Assent-A that bound Respond-
ent to the contract. On December 8, 1983, 7 days later,
Prilika responded, sending the following letter to Heffer-
nan:
This letter is in response to your letter of Decem-
ber 1, in which you reference this company having
signed a letter of asset [sic] in 1976. If you will
check your records, by referring to the minutes of
the Labor Management Committee of December 16,
1982, you will see that the letter of assent had been
cancelled and the Rocky Mountain Chapter,
NECA, no longer represented us for purposes of
collective bargaining.
The company is desirous of restructuring its
wages and fringe benefit programs, to better benefit
the employees. As you know, we only have a few
electricians working for us. What I would like to do
would be to institute a more flexible wage program,
having a range from around $10.50 to $20.00 per
hour. This would allow management to assess the
worth of the individual workmen, and pay them ac-
cordingly. In addition, with only a few employees, I
would like to review the fringe benefit package.
Rather than pay the fringe benefits called for under
your collective bargaining agreement with NECA,
I think we would be much better off to tailor make
fringe benefits to each employee. I would then con-
template discontinuing payments to the trust funds.
Frankly, Mr. Heffernan, not having heard from
you with regard to bargaining for a new contract to
replace the one that expired in April of 1982, I
simply thought that your union had abandoned rep-
resentation of the several electricians which we
employ. If, however, it is now your intention to
represent our electricians and to bargain towards a
new agreement, to be tailor made specifically for
this company, will you contact me within ten days
of receipt of this letter. If I don't hear from you
within that time frame, I'll assume you have no
such intentions and this company will begin to take
steps to implement the changes outlined above.
On December 14, 1983, Heffernan replied, in writing, to
Prilika as follows:
Your letter, as referenced above, was received by
this office on December 12, 1983. I would ask that
you review the Letter of Assent A as was forward-
ed to you with my letter of December 1, 1983. The
last sentence reads as follows:
"It shall remain in effect until terminated by the
undersigned employer giving written notice to
the Rocky Mountain Chapter, NECA, and to the
Local Union at least one hundred fifty (150) days
prior to the then current anniversary date of the
aforementioned approved labor agreement."
This is to advise you that this Local Union office
has never received a written notice from you, at
any time terminating this Letter of Assent . It is our
contention, therefore, that you firm is currently
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bound by the April 1, 1983 Denver Inside Electrical
Construction Labor Agreement.
If you have any questions regarding this matter,
please contact Mr. Albert (Bert) Wright in this
office.
Albert Wright testified that, as a result of the forego-
ing exchange of letters, he contacted and arranged a
meeting with Prilika and that they met and spoke over
breakfast on either January 10 or 11, 1984. According to
the assistant business manager, "We did a little small
talking . . . . Then I asked him the result of the letters,
what his intent was. He advised me he was going to go
non-union . I advised him that, in our opinion, he was still
signatory to the Letter of Assent-A and the agreement,
and, therefore, we would do what we could to stop him
from just going open shop." While corroborating that he
and Wright spoke, Prilika denied that it was Wright's po-
sition that Respondent was bound to the terms of the
successor commercial agreement: "I inform Mr. Wright
... that for quite sometime Reliable is not signatory to
any local agreement, and we start to argue a little bit
about it." According to Prilika, Wright told him that he
was trying to strengthen the Union and was unfamiliar
with Respondent's problems-"He did not inform me
that he still think I'm a member of any agreement, what-
soever." Either later that same day, or the next day, Pri-
lika wrote the following letter, dated January 11, to Hef-
fernan:
Frankly, sir, I was somewhat mystified when I
read your letter of December 14, 1983. It was com-
pletely unresponsive to my letter to you of Decem-
ber 3, 1983. As mentioned in that earlier letter to
you, NECA, Rocky Mountain Chapter no longer
represented us for purposes of collective bargaining.
Your labor organization had been notified, and
NECA confirmed that notification at the labor man-
agement committee meeting of December 16, 1982.
Your letter of December 14, 1983 references "the
April 1, 1983 Denver Inside Electrical Construction
Labor Agreement." I have never seen such an
agreement , and certainly your labor organization
has never furnished the same to me, with or with-
out any request that I execute the same on behalf of
this company.
It is this company's firm position that there is no
collective bargaining agreement between us and
your labor organization . The last one in effect was
the one which expired April of 1983. (I am sorry
for the typographical error which appeared in my
letter of December 8, 1983, referencing an April,
1982 date). Under the circumstances described in
our earlier correspondence, I think it incumbent
upon this company to implement the changes indi-
cated in the December 8, 1983 letter at the earliest
possible time. I find this necessary, not only because
of economic conditions but because of your appar-
ent refusal to negotiate a new labor agreement. Ac-
cordingly, unless I hear from you by Wednesday,
January 18, 1983, that you are amenable to negotiat-
ing a new agreement , I will presume that you have
no intention of so negotiating a new agreement and
will forthwith implement those changes as set forth
in my letter of December 8, 1983.
On either January 12 or another day in mid-January
1984, Prilika held a meeting with Respondent's journey-
men wiremen , both commercial and residential ,18 in the
Company's office. With Prilika, representing manage-
ment , were the estimator, Richard Harding, and the serv-
ice manager, Bob Steward. The most complete account
of what was said during this meeting is that of Prilika.
According to him, "I told them the company's financial
status. I disclosed everything to them. I told them the
company cannot make it with its structure right now.
Either we do make some changes or the company will
go broke." Thereupon, Prilika turned to the subject of
the Union. "I informed all people that worked for me
that I tried to bargain with [the Union] for many months
and exchanged so many letters, for which some of them
I have response and the others, I don't. We've been
working . . . under no contract for two years . . . . I in-
formed them . . . that [the Union] will not respond to
me and negotiate in good faith . . . . I say . . . we were
going to become open shop . . . . I think somebody
make remark, Is this nonunion, and I said, Well, if that's
what you call nonunion , that's what is nonunion."19
Next, Prilika was asked by employees what he had to
offer to them, and "I tell everbody what I'm going to
pay per hour, what kind of benefits I'm going to give."20
is The record discloses that residential wiremen are considered to be
less skilled than commercial wiremen and that the residential contractual
level of wges and fringe benefits is lower than that of the commercial
contract The record further discloses that the Union operates one hiring
hall for both classifications-with journeymen dispatched from separate
out-of-work lists
Examination of G C Exh 9, the December 1983 report of fringe bene-
fit contributions to the trust funds created under the commercial contract,
discloses there is a space on it for the amounts of union dues deducted
for the listed employees Those employees , for whom dues were deduct-
ed, I shall also presume them to be union members given the contractual
union-security clause Based on this evidence, I find that, as of January
12, 1984 , Respondent employed the following members of the Union as
commercial journeymen wiremen and apprentices Bruce Knoke, Kim
Maclntyre, Dale Wittwer , Bob McFarren , and Steve Godwin
Examination of G C Exh 4, the December 1983 fringe benefit report
for the residential wiremen , discloses that, as of the above date, Respond-
ent employed the following union members as residential journeyman
wiremen and apprentices Jeffrey Slavsky, Craig Terry, Arthur Valdez,
and Napoleon Williams
Respondent employed one other individual , Brian Regg The record is
unclear as to his job duties or whether he was a union member
Finally, while the record is not conclusive, it appears that Respond-
ent's wiremen were all hired for longer terms than for any one particular
job and that, therefore , it had a fairly stable work force
is Prilika was contradictory about what he told the employees the
future status of Respondent would be Thus, earlier in his testimony, Pn-
lika was asked if he told the employees that he was going nonunion and
answered " I believe I did " Later, he was asked the same question again
and answered "Yes "
20 Prilika told the employees he would pay them $15 per hour, a rate
lower than the commercial contract wage rate , pay for health insurance
for them but not their families, cover each with a $10,000 life insurance
policy , and provide 1 week of paid vacation after the first year and 2
weeks thereafter He also mentioned the possibility of profit sharing but
said there would no longer be a pension plan as under the commercial
contract.
RELIABLE ELECTRIC CO. 843
At this point, "everybody was naming one contractor
.. . Simmons Electric, that he promised everbody union
wages as long as they resigned out of the union and
stayed with him. After a period of time . . . Mr. Sim-
mons reneged his word and cut everbody's wages . . . .
So everybody asked me if I'm going to offer something,
would I put it in writing so this way we can both sign
and nobody going to say that they've been cheated." He
replied that he would do so. The several employee wit-
nesses who testified about this meeting generally gave
less substantial versions of what was said than did Pri-
lika. Initially, five witnesses (Arthur Valdez, Jeff
Slavsky, Bob Holcomb, Bill Jackson, and Bruce Knoke)
corroborated Prilika that he began describing how finan-
cially the Company "was in pretty poor shape" and
unable to compete with nonunion contractors for jobs.
Regarding what was said about Respondent's future
status, witnesses Slavsky, Belshe, Jackson, Knoke, and
Kim Maclntyre testified that Prilika announced that Re-
spondent would become nonunion; Valdez stated that
Prilika said he would no longer employ "Local 68
hands"; and Holcomb remembered him as saying Re-
spondent would have to become "non-signatory." Also,
all the employee witnesses recalled that Prilika discussed
wages and fringe benefits at the meeting. Several could
remember nothing specific, with Belshe recalling that
Prilika had, as yet, nothing "concrete" in mind. MacIn-
tyre and Knoke testified that Prilika specified a wage
rate of between either $10.95 or $12 per hour and $15
per hour; Slavsky, Knoke, and ]Maclntyre remembered
Prilika discussing some sort of a profit-sharing arrange-
ment ; and Knoke and Maclntyre stated that Prilika of-
fered health insurance coverage to the employees but not
that set forth in the Union's commercial contract. More-
over, several employees remembered that Simmons Elec-
tric was discussed at the meeting, with Belshe recalling
that contractor raised with regard to "how employees
were being treated after they went nonunion." In this
context, a written contract was also discussed, but no
employee witness recalled what was said with any speci-
ficity. Finally, Knoke recalled that Prilika said he
wanted them to continue paying their union dues.
In any event, the record establishes that Prilika seized
on the opportunity created by Respondent's employees'
nonspecific request21 that he memorialize his "open
shop" wage and fringe benefits package and created
nothing less than formal employment contracts for each
journeyman wireman employee, the purpose of which as-
sertedly was merely to comply with the above employee
request. The form of the document, consisting of two
pages, was as follows:
21 James Belshe testified that between January 1, 1984, and the mid-
January employee meeting, he spoke to Prilika and that the latter "had
told me that there was going to be contract When he got to the
language that he wanted in the contract and he decided to go non-union,
then it was either going to be sign it or no longer work for Reliable "
Belshe further asserted that what Prilika wanted to do was common
knowledge among the employees prior to i he employee meeting
(page 1)
EMPLOYMENT AGREEMENT
THIS AGREEMENT was made this 23rd day of
January, 1984, by and between RELIABLE ELEC-
TRIC CO., INC. (hereinafter referred to as "Em-
ployer") and whose address is
(hereinafter after referred to as
"Employee"); and
WHEREAS, Employer desires to employ Em-
ployee and Employee desires to be hired by Em-
ployer, the parties have executed this Agreement
setting forth the terms and conditions of such em-
ployment.
1. Duties of Employee. Employee shall be em-
ployed by Employer in the following capacity:
Journeyman Electrician, Foreman on job per job
basis which duties shall include such other and fur-
ther responsibilities as may be designated from time
to time by the Board of Directors and the Officers
of Employer together with duties designated by the
foreman or other supervisory personnel of Employ-
er. (Strike if inapplicable.) It is a condition of Em-
ployee's employment by Employer that Employee
have and maintain a valid Electrician license issued
by the State of Colorado. All expenses incurred in
obtaining or renewing such license shall be borne
solely by Employee.
2. Compensation to Employee. (a) Employee shall
be compensated at the rate of $15.00 per hour for
each hour that Employee is engaged in the perform-
ance of the above described duties, together with
such production incentive programs, if any, that
may be agreed upon, in writing, between Employer
and Employee from time to time on a job by job
basis.
(b) Employer shall maintain health insurance
under a group health and accident insurance plan
available through New York Insurance for Employ-
ee only. Employee may, but is not obligated to,
elect to have such benefits available to his qualified
dependents and in such an event, Employee shall
pay the difference between the cost of such health
and accident insurance for Employee only and the
cost of such insurance being made available to Em-
ployee and Employee's qualified dependents.
(c) Employee shall be entitled to one (1) week
(five working days) paid vacation following the first
twelve (12) months of employment by Employee.
Following twenty-four (24) months employment of
Employee by Employer, Employer shall be entitled
to two (2) weeks (ten working days) paid vacation.
(d) Employer will pay, on behalf of Employee,
the premium for a life insurance policy insuring the
life of Employee in the face amount of $5,000.00,
provided Employee can qualify for such insurance
under the terms and conditions of the policy avail-
able from New York Insurance, as the insurance
carrier.
3. Responsibility for Employer's Property. Employ-
ee shall acknowledge receipt of all tools and equip-
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment belonging to Employer and delivered into the
custody or possession of Employee. Employee will
from time to time, and at the request of Employer
or, at the termination of Employee's employment,
return such tools and equipment to Employer in the
same condition as the condition upon their reciept
by Employee, ordinary wear and tear expected, and
if Employee fails or refuses to return such tools or
equipment to Employer, Employer, in addition to
all other remedies available to it, may deduct the
reasonable cost of the replacement of such tools and
equipment from any monies then owed to or due
Employee.
(page 2)
4. Term of Agreement. This Agreement may be
terminated by either party, with or without cause,
upon 5 working days written notice to the other
party.
5. Confidentiality. All bids, proposals, rates, draw-
ings, plans, specifications, designs, and similar items
prepared by or on behalf of Employer shall remain
the sole and exclusive property of Employer and
Employee agrees not to divulge the contents of any
such materials to any third person during the term
of Employee's employment hereunder or for a
period of 180 days thereafter. Employee acknowl-
edges that damages for the violation of the cov-
enants and agreements contained in this Paragraph 5
may be inadequate and that Employer may, in addi-
tion to all other remedies, seek declaratory, injunc-
tive, or other equitable relief to prevent the viola-
tion of the covenants and agreements of this Para-
graph 5 by Employee.
6. Entire Agreement. The parties acknowledge
that this Agreement constitutes the entire agreement
between the parties and supersedes all prior agree-
ments, written or oral, of every type and nature,
under which Employer and Employee may have
been associated or under which Employee may
have performed services for Employer prior to the
date hereof.
7. Applicable Law. This Agreement is made and
will be performed within the State of Colorado and
shall be interpreted and construed according to the
laws of the State of Colorado.
8. Notice. Any notice required or permitted to be
given under this Agreement may be delivered to the
intended recipient of the notice personally or mailed
to the intended recipient by Certified mail, postage
prepaid, return receipt requested. Any notice so
mailed will be deemed effective three (3) days from
the deposit of such notice in the United States
mails.
Reliable Electric Co., Inc.
By
Employee Employer
Prilika unveiled the new employment agreements on
the morning of Tuesday, January 24, which was a
payday. He gave a blank copy to James Belshe, instruct-
ing him to show it to the other members of his crew
(Holcomb, Bob McFarren, Steven Goodwin, and two
apprentices, Napoleon Williams and Dale Wittwer).
Later that day, as each employee came to the office to
pick up his paycheck for the previous week, Prilika met
with him, formally presenting the contract. As to wheth-
er he required employees to sign in order to continue
working for Respondent, Prilika stated, "If they were
going to work for the company, I tell them to sign it. I
didn't tell them; I asked." Later, he added, "They prob-
ably didn't have to sign but I didn't want any disagree-
ment out of it . . . later . . . that I didn't pay what I
promised them to pay." The record establishes that, after
being presented with the contract, only three employees
(Steve Godwin, Bob McFarren, and Brian Regg) chose
to continue working. As to the meetings with the com-
mercial wiremen , Knoke and Jackson together spoke to
Prilika. According to Knoke, the latter handed each a
copy of the contract, said "here's what I'm offering
you," and mentioned that each would receive $15 per
hour, health insurance for himself, and a $5000 death
benefit. Knoke responded "that I could not sign this con-
tract, and he said, Well, then you quit." Knoke repeated
that he could not sign , "that he hired me out of the hall
at a given wage, given benefits, and such." Prilika re-
plied , "I'm no longer union, I don't recognize the Union,
and if you don't sign any contract, you have to quit." He
added that if Knoke desired to remain union, "go down
there and let the union support [you]." Knoke insisted
that he was not quitting, and Prilika reiterated that he
would have to sign the contract. Finally, the latter said
he had 30 applicants for Knoke's job, and "I don't have
time to argue with you. If you don't want to sign my
contract, I'm firing you." Knoke agreed that such was
Prilika's right, and the company president instructed his
secretary to prepare two checks22 for Knoke.23 Accord-
ing to Jackson, Prilika told them, "Okay, we're going
nonunion . . . as of now; and we either sign his contract
or we're terminated. And we looked the contract over
I told Tony, well, I'm going to have to go with the
local; that's who I'm hired out with." As did Knoke,
Jackson received two checks that day.24 While not testi-
fying specifically to his conversation with Knoke, Prilika
testified that he asked every employee "to stay with me,
please" and denied mentioning the Union in any context.
As to Jackson, Prilika stated, "He just told me that he
have many years in the local and he doesn't know what
22 The first check was for the previous workweek and was computed
at the new commercial contract wage rate , a deduction was made for
Knoke's union dues The second check was for the 2 days of work that
week and was computed at the proposed $ 15-per-hour wage rate No
dues deduction was made
There is no dispute that Prilika ceased making contributions to the
Denver Inside Electrical Construction contractual fringe benefits trust
funds after December 1983
23 While Knoke agreed that Prilika did not require that he give up his
union membership, such would have been the practical result had Knoke
agreed to work for Respondent under the proposed nonunion conditions.
Thus, absent resignation , he would have been subject to internal union
disciplinary action had he retained membership and worked for a non-
union contractor . Given his admitted long-time membership in the Union,
I believe Pnlika knew this
24 See fn 22 above This same pattern was repeated for all the alleged
discrimmatees
RELIABLE ELECTRIC CO
he s going to do .... I told him . . . whenever he
make a decision, come back to me."' He never did.
Kim Maclntyre testified that on entering the company
office to pick up his paycheck, he was told to speak to
Prilika. As he entered the latter's office, he was handed a
copy of the employment contract. Prilika instructed him
to read it, "and that I had to sign it before I could work
again . . . . I told him I had to think about it." MacIn-
tyre had the impression that Prilika wanted him to
remain as an employee. According to the witness, having
kept the copy of the contract in order to consider ac-
cepting or rejecting it, he took it to the Union's office
and spoke to a business agent about it. The next day, he
returned to Respondent's office and, as "I'd lose all my
union benefits," told Prilika he could not sign the con-
tract. Prilika commented "that he didn't care if anyone
signed it or not anymore."25 The latter testified that
Maclntyre gave no reason for refusing to continue work-
ing, saying he desired an opportunity to speak to his wife
and the Union before making a final decision. Maclntyre
testified further that Prilika contacted him twice with
regard to reversing his decision and that he told Prilika
he could not work for Respondent as it did not have a
contract with the Union. Bob Holcomb testified that he
also was told to speak to Prilika in the latter's office and
that "Mr. Prilika had a contract, some kind of a .. .
form that he hoped some of his people would sign and
stay with him." According to Holcomb, however, Prilika
never showed it to him, saying "You don't intend to sign
this, and I said, no."26 Asked why he refused to execute
the contract, Holcomb replied that " as a union man, I al-
ready have a contract with Local 68, so to speak, and I
didn't want to corrupt one with the other." With regard
to this alleged discriminatee, Prilika testified, "Mr. Hol-
comb [said] . . . that he is close to his pension and he
only had a couple of years to go. He had too much to
lose apd he would have to quit . . . that he better stick
with the union."
James Belshe, who had been given a copy of the em-
ployment contract that morning, testified that he spoke
to Prilika during the afternoon of January 24 and, refer-
ring to said agreement , the latter said, "I suppose you're
not going to sign this either; and I said, no."27 Prilika
then requested that Belshe work for at least another
week in order to train new people, and Belshe agreed.211
Dale Wittwer was employed as an apprentice commer-
cial wireman and had not been present at the mid-Janu-
ary employee meeting; however, he had been told that
Respondent would become a nonunion contractor and
was offering a wage rate of $15 per hour with no fringe
benefits. Based on what he heard, Wittwer knew he
could no longer work for Respondent because employ-
ment under such circumstances could "jeopardize my
25 Knoke received his usual paycheck the previous day As he left this
day, Knoke was given a check for his days of work that week at the re-
duced $ 15 wage rate
26 Holcomb was aware of the contents of the contract, having been
shown a copy earlier that day by Belshe Like the others, he received
two paychecks that day, the second at the reduced wage rate
27 Asked why, Belshe replied , "Because I'm a member of 68, that's
why "
28 Advised to stop, Belshe worked only through the end of that week,
January 27
845
getting a license and my education." Further, Wittwer
was convinced that the above working conditions meant
that Respondent would no longer support the Union's
apprentice program and that, therefore, "there wasn't
any place for me in this company anymore." According-
ly, on January 24, which was payday, Wittwer walked
into Prilika's office "and I asked him for a layoff and he
said he had to talk to his lawyer." They continued speak-
ing, and Prilika "talked a little bit about why he had to
go non-union; he couldn't afford not to, that he already
had applications for people with masters licenses who
were willing to work for $10.00 per hour." Wittwer left
the office but returned the next day. Prilika was not
there but his secretary told Wittwer that Respondent
could not lay him off. According to Wittwer, he be-
lieved he was no longer an employee that day. Finally'29
with regard to the commercial wiremen, Prilika testified
that Steve Godwin and Bob McFarren, both members of
the Union, chose to continue their employment with Re-
spondent after January 24, that both met with him on
January 24 in the same manner as the other commercial
wiremen, and that McFarren continued in Respondent's
employ despite not having executed an employment con-
tract.
With regard to the four residential wiremen employed
on January 24,30 the record discloses that Prilika met
with them as he did with the commercial wiremen that
day. Arthur Valdez testified that he was called into the
company president's office, "and he had a contract that
he handed to me, and he asked me to read it . . . and if I
agreed with what was there, to sign it to be employed by
him." He examined the document31 and refused to exe-
cute, saying "that it was in conflict with my union affili-
ation." Prilika replied that Valdez quit; the latter dis-
agreed, saying he would just cease working for Respond-
ent and would not sign the contract. During cross-exami-
nation, Valdez admitted that Prilika did ask him to con-
tinue working. Jeff Slavsky, who testified that Prihka
never showed him a copy of a contract, stated that the
latter "asked me whether I was going to sign the new
contract, and I said, no." Asked why, the witness an-
29 Commercial wireman and alleged discrimmatee Gilbert Cito did not
testify and there is no evidence as to the circumstances of his departure
from Respondent 's employ
31 Received into evidence as G C Exhs 5(a) through 5(d) are the
1979-1980, 1981, 1982, and 1983 Denver Residential Wiring agreements
While the record reveals that, at the same time Prilika executed G C
Exh 2, he executed a Letter of Assent-A for the residential contracts,
there is no allegation in the amended complaint that, at any material time,
Respondent and the Union had a collective-bargaining relationship cover-
ing Respondent 's residential wiremen or that Respondent was bound to
any of the aforementioned contracts Further, while the record estab-
lishes that Respondent apparently paid its residential employees at the
residential contract wage rates , paid into the residential wiring contrac-
tually established fringe benefit trust funds on behalf of its residential
wiremen through December 1983, and utilized the contractually estab-
lished hiring hall, there is no allegation in the amended complaint that
Respondent violated Sec 8(a)(1) and (5) of the Act by its conduct de-
scribed herein vis-a-vis the above collective-bargaining agreements This
is the case notwithstanding that counsel for the General Counsel was af-
forded the opportunity to further amend the complaint-and chose not to
do so
3' The employment contracts offered to the residential wiremen were
identical to those offered to the commercial wiremen except that the
wage rate was approximately $11 per hour
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
swered, "At the time I was a dues paying member of
Local 68 and by signing that contract, would have
brought me up on charges through the Local." Napoleon
Williams, an apprentice residential wireman, like Dale
Wittwer, had not been invited to the mid-January em-
ployee meeting but was advised later that Respondent's
intent was to become a nonunion contractor. Therefore,
he contacted a member of the apprentice board and was
told to do nothing before checking back if Respondent
did become nonunion. According to Williams, while
working on January 24, all the employees were talking
about an employment contract but he never saw it. Later
that day, he spoke to Prilika in the company office, and
the latter said he wanted Williams to read it and com-
ment later. Williams examined the document, which was
an employment contract, and said that he could not sign
it based on his prior instructions from the Apprentice
Board member. Prilika asked Williams to continue work-
ing and when the latter refused, Prilika said, "Okay, you
got to do what you got to do" and, referring to the con-
tract, said "this is what it is." Finally, with regard to the
residential wiremen, Craig Terry did not testify and no
reason was offered for his absence. Consequently, there
is no record evidence as to his departure from Respond-
ent's employ.
B. Analysis
The amended complaint alleges that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by repudiating
and refusing to adhere to the successor Denver Inside
Electrial Construction collective-bargaining agreement,
effective April 1, 1983; unilaterally reducing the wage
rates of its employees covered by the contract and ceas-
ing to make contributions on their behalf to contractually
established fringe benefit trust funds; unilaterally imple-
menting health and life insurance plans for the employ-
ees, and bypassing the Union and dealing directly with
the employees regarding their terms and conditions of
employment. The amended complaint also alleges that
Respondent violated Section 8(a)(1) and (3) of the Act
by discharging both its commercial and residential wire-
men employees. Respondent makes several alternative ar-
guments that its conduct herein was not violative of Sec-
tion 8(a)(1) and (5) of the Act. With regard to the 8(a)(1)
and (3) allegations, Respondent argues that no construc-
tive discharges occurred inasmuch as the institution of
new terms and conditions of employment was not unlaw-
ful and there exists no evidence of unlawful animus here.
Specifically as to the residential wiremen, Respondent
contends that as there are no allegations in the amended
complaint concerning its obligation to bargain or abide
by a collective-bargaining agreement concerning the em-
ployees, no 8(a)(1) and (3) violation may be found as to
them. Finally, it is alleged that no unfair labor practices
may be found here as such must be predicated on the
finding of an earlier unfair labor practice that occurred
beyond the 10(b) statute of limitations period.
Initially, with regard to the 8(a)(1) and (5) allegations
of the amended complaint, I note that it is alleged in the
amended complaint that , at all times, Respondent has
been an employer-member of a multiemployer bargaining
group32 that has designated NECA to act as its repre-
sentative for purposes of collective bargaining with the
Union as the exclusive representative, within the mean-
ing of Section 9(a) of the Act, of the employees of the
employers who perform inside electrical construction
work and that a bargaining unit encompassing all full-
time and regular part-time employees is appropriate
within the meaning of Section 9(b) of the Act. In its
answer, Respondent denied the majority status and ap-
propriate unit allegations and asserts that the General
Counsel has failed to establish that the Union ever
achieved majority status among the aforementioned com-
mercial wiremen employed by the multiemployer
group.33 In analyzing the issue of the Union's majority
status among the employees of the multiemployer bar-
gaining unit, it is first necessary to determine whether
Respondent, at all times, remained a member of the mul-
tiemployer group. As to this, there is no dispute that Re-
spondent became a member thereof in 1976 when Prilika
executed General Counsel's Exhibit 2; however, Re-
spondent's counsel argues that no finding is possible that
Respondent was bound to group bargaining or the results
thereof beyond the term of the April 1, 1976, through
March 31, 1978 commercial agreement inasmuch as the
plain wording of the Letter Assent-A makes it clear that
the expressed authorization to NECA extended for the
effective term of the existing commercial contract and as,
in any event, Business Manager Ligino represented to
Prilika, thereby inducing him to execute the document,
that the authorization of NECA was just for the duration
of the existing agreement. As to the former argument, I
note that to find merit to this contention would necessar-
ily render meaningless the provision requiring a signato-
ry contractor give 150 days notice in order to terminate
the authority granted to NECA and that, in several
cases, the Board has concluded that identical, ois nearly
identical, letters of assent bind the signatory contractor
to succeeding contracts. Nelson Electric, supra at 550;
McCormick Electrical Construction Co., 240 NLRB 418,
424 (1979) H. S. Brooks Electric, 233 NLRB 889, 894
(1980). Regarding the uncontroverted representations at-
tributed to Ligino by Prilika, I believe that such, never-
32 The Letter of Assent-A does not, I believe, merely demonstrate an
intent to be bound by group bargaining, rather, the signatory contractor
declares its intent to bind itself to group bargaining Further, the wording
of it does not merely adopt the correct collective- bargaining agreement,
for such specifically authorizes NECA to act as the contractor 's designat-
ed representative Hence, the signers of the Letter of Assent-A, I further
believe, constitute a multiemployer bargaining association , represented by
NECA Nelson Electric, 241 NLRB 545, 551 fn 19 (1979). This is entirely
apart from membership in NECA, itself
as Although the appropriateness of the multiemployer unit was denied
by Respondent, counsel's postheanng brief arguments are devoted to the
issue of majority status In any event , analysis of the successive commer-
cial contracts discloses that the NECA-represented employers extended
recognition to the Union as the representative of those employees per-
forming inside electrical construction work and that the contracts cover
those classifications of employees performing such work. Although no
specific evidence as to the appropriateness of the unit was adduced at the
hearing, based on the record as a whole, I find that the unit encompass-
ing all full-time and regular part-time employees performing the above-
described work of employees, who have designated NECA to be their
bargaining representative , is appropriate for purposes of collective bar-
gaining within the meaning of Sec 9(b) of the Act Nelson Electric, supra
RELIABLE ELECTRIC CO
theless , necessitates a resolution of the credibility of Re-
spondent's president. Notwithstanding the unexplained
failure of Ligino to testify and the permissible inferences
flowing therefrom, I cannot credit Prilika in this regard.
Thus, his testimonial demeanor was that of a decidedly
disingenuous witness, one who, I believe, appeared fully
capable of fabricating testimony to buttress his position.
His attribution of certain statements to Ligino was, I fur-
ther believe, an instance of such. Therefore, I conclude
that the effect of Prilika's execution of a Letter of
Assent-A on June 8, 1976, was to bind him to group bar-
gaining for all future commercial contracts unless, in
compliance with Board law, he withdrew from the
group.
In this regard, of course, Respondent contends that it
withdrew from multiemployer bargaining during the
summer of 1982 and, therefore, was not bound to the re-
sults of negotiations for a successor to the April 1, 1981,
through March 31, 1983 commercial contract. Initially, I
note that if a proper withdrawal was effectuated it is not
in dispute that such was prior to the commencement of
the above negotiations. The Board law on this is of long-
standing duration: prior to the start of negotiations, with-
drawal can only be effected by an unequivocal written
notice, both to the multiemployer group and to the
union, expressing a sincere intent to permanently aban-
don the multiemployer unit and to pursue negotiations
on an individual employer basis. Groton Piping Corp., 246
NLRB 99, 101 (1979); Acme Wire Works, 229 NLRB 333,
335; Retail Associates, 120 NLRB 388, 395 (1958). Here,
Prilika admitted that Respondent adhered to the April 1,
1978, April 1, 1980, and April 1, 1981 (at least through
early 1982) commercial contracts, based on its member-
ship in NECA and was uncontroverted that he orally
sought to withdraw from NECA membership-34 during
the winter of 1982. However, with regard to withdraw-
ing from multiemployer bargaining, notwithstanding the
apparently corroborative testimony of Massey, I do not
credit the assertions of Prilika that he gave written
notice to both NECA and the Union of Respondent's
withdrawal of its prior authorization to NECA to bar-
gain on Respondent's behalf and of its intent to bargain
directly with the Union. Besides my belief that Prilika
did not seem to be an honest and forthright witness,
three contributing factors are of significance to my above
conclusion. First, and of critical significance, is the fact
that neither NECA nor the Union could locate such a
document in its files. Surely, if the letter existed, at least
one of these entities would have retained it in a file.
Second, Prilika admitted that he did not have a copy of
the document. This admission assumes the highest signifi-
cance given Prilika's further admission that Respondent
customarily retains copies of all correspondence. In this
regard , I found rather dubious Prilika's excuse for the
"loss" of this letter-it must have been misplaced during
the relocation of Respondent's office facility-given Pri-
lika's later admission that the moving of Respondent's
94 As NECA's membership was not, I believe, coextensive with mem-
bership in the NECA-represented multiemployer bargaining group , resig-
nation from NECA membership would not, alone , have fulfilled Re-
spondent 's obligation under Retail Associates, supra
847
office occurred early in 1982-or prior to the drafting of
the alleged letter. Finally, I note that, in his correspond-
ence with Union Official Heffernan during November
and December 1983, while referring to the fact that the
Union had been notified of Respondent's asserted cancel-
lation of the 1976 Letter of Assent-A, Prilika referred
not to the "copy" of the letter to NECA but rather to
the minutes of the meeting at which Massey told the
Union that NECA no longer represented Respondent. As
he specifically told Heffernan to "check your records,"
he would surely have advised the former to reread the
NECA letter-if such, in fact, existed. 3 s Based on the
foregoing factors, I conclude that Prilika, acting on Re-
spondent's behalf, never mailed any document to NECA,
with a copy to the Union, in July or August 1982, in
which he rescinded Respondent's prior authorization to
NECA to represent it in bargaining with the Union, and
that, until Respondent's business became unprofitable in
1983, always intended to be bound by the NECA negoti-
ations. As to the conduct of R. L. Massey in including
Respondent in the list of contractors for whom NECA
was no longer bargaining, I think that such was a mis-
take by the former NECA executive director, perhaps a
product of his oral communications with Prilika. With
regard to his testimony, while finding Massey to have
been an honest witness, I am of the view that he suffered
from faulty recall, undoubtedly being the victim of his
own prior conduct (the above announcement to the
Union) and contacts with Respondent. The import of
these findings is manifest: having failed to provide the
requisite notice to both NECA and to the Union, Re-
spondent, therefore, never withdrew from the NECA-
represented multiemployer bargaining group prior to the
commencement of negotiations between the association
and the Union. Accordingly, the appropriate unit for
bargaining herein has always been the multiemployer
unit and never became one limited to the commercial
employees of Respondent.
As to majority status in this unit, the amended com-
plaint alleges that the Union's exclusive representative
status has existed from June 1976-when Prilika execut-
ed the Letter of Assent-A that bound Respondent to the
existing commercial agreement. However, at the hearing,
counsel for the General Counsel offered not one scintilla
of evidence to prove this allegation and, in her posthear-
ing brief, merely asserts that "the Union represented a
majority of employee within that unit" and cites no
Board cases to support her statement. Although unstated,
given the fact that Respondent's 1976 Letter of Assent-A
was executed during the terms of an existing collective-
bargaining agreement in which recognition was granted
to the Union as the exclusive representative of the inside
electrical construction employees of the employer-mem-
bers who were represented by NECA, counsel obviously
relies on the applicable law, regarding a union's majority
status, that "in the normal case, an employer-respondent
in an 8(a)(5) case may not go [beyond the 10(b) 6-month
85 Based on my belief that his testimony is not worthy of belief, I do
not credit Prilika's assertion that former Union Business Manager Heffer-
nan admitted he was aware of the disputed letter I do so notwithstanding
the unexplained failure of Heffernan to testify about the allegation
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statute of limitations period] to show that a contract, ap-
parently regular and continuing on its face was executed
at a time when the union was not the majority represent-
ative. The reason for this rule is that a contract, regular
on its face, carries with it an irrebuttable presumption
. . . of continuing majority status of the union." R. J.
Smith Construction Co., 191 NLRB 693, 694-695 (1971),
enf. denied 480 F.2d 1186 (D.C. Cir. 1973); Barrington
Plaza & Tragniew, Inc., 185 NLRB (1970). Further, fol-
lowing expiration of the contract, this presumption con-
tinues , although rebuttable. However, the burden of re-
butting it rests on the party who would do so; the assert-
ing party must establish that the labor organization does
not, in fact, represent a majority of the bargaining unit
employees, or that, on the basis of objective consider-
ations, it had a good-faith reasonable doubt as to the
labor organization's continuing majority status. Abbey
Medical/Abbey Rents, Inc., 264 NLRB 969, 977 (1982);
Towne Plaza Hotel, 258 NLRB 69, 76 (1981). Respondent
offered no evidence with regard to its contentions as to
the Union's lack of majority status.
Analysis of the entire record herein convinces me that
Respondent, as well as the other NECA-represented em-
ployer-members party to the successive commercial con-
tracts, are engaged in the building and construction in-
dustry. Thus, both Prilika and Respondent's employees
testified that Respondent was engaged in new electrical
construction wiring work at the Federal Government's
Rocky Flats project; the various commercial agreements
that are part of the instant record refer to work normally
considered as construction work; and, most significantly,
the commercial contracts contain a union-security clause
requiring membership after the seventh day of employ-
ment , which type of clause is countenanced only in the
building and construction industry. R. J. Smith Construc-
tion , supra at 694. This finding assumes critical impor-
tance in view of the contention, in the posthearing brief
of counsel for Respondent, that, at the time Prilika exe-
cuted the 1976 Letter of Assent-A that bound him to the
then-existing Denver Inside Electrical Construction con-
tract, Respondent became party to an agreement, the va-
lidity of which was covered by the precepts of Section
8(f) of the Act36-that is, recognition was extended
36 Sec 8(f) of the Act reads, as follows
(f) It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged (or who, upon their employment, will be engaged in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished , maintained , or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because (1) the majority status of
such labor organization has not been established under the provisions
of section 9 of this Act prior to the making of such agreement, or (2)
such agreement requires as a condition of employment , membership
in such labor organization after the seventh day following the begin-
ning of such employment or the effective date of the agreement,
whichever is later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for employment with
such employer, or gives such labor organization an opportunity to
refer qualified applicants for such employment, or (4) such agree-
ment specifies minimum training or experience qualifications for em-
ployment or provides for priority in opportunitiess for employment
based upon length of service with such employer, in the industry or
in the particular geographical area Provided, That nothing in this
therein to the Union as the exclusive representatives of
their inside electrical wiremen employees by the employ-
er-members of the NECA-represented multiemployer
bargaining group at a time when the Union's majority
status had not, as yet, been established under the provi-
sions of Section 9 of the Act.37 Based on the inherent
nature of relationships in the building and construction
industry and on the fact, as presumed by Congress when
it enacted Section 8(f), that labor agreements in this in-
dustry often are-and by necessity must be-concluded
before contractors have hired any workers, there is a
high probability that the 1976 commercial contract was,
indeed, an 8(f) contract and, in any event, I will not pre-
sume that the agreement, and the successors thereto,
even bestowed a 9(a) majority representative status on
the Union.36 Such is the correct view; for the above-de-
scribed normal Board majority status presumptions do
not apply to building and construction industry contracts
valid only under Section 8(f) of the Act. Id. at 695.
Therefore, absent any record evidence of majority status,
I cannot find that the Union enjoyed an irrebuttable pre-
sumption of majority status in the multiemployer bar-
gaining unit based merely on the fact that the 1976 com-
mercial contract was in effect at the time Respondent en-
tered into the applicable Letter of Assent-A.
In R. J. Smith Construction, the Board considered alle-
gations that an employee, in the context of an 8(f) con-
tract, had violated Section 8(a)(1) and (5) of the Act by
making unilateral changes in the wage rates of its em-
ployees. The Board concluded that Congress enacted
Section 8(f) of the Act to "immunize" building and con-
struction industry employers and unions from the pre-
cepts of Section 8(a) and Section 8(b) of the Act when
they entered into prehire agreements , that the testing of
the union's majority status could be done at any time
after employees are hired, that the limitations of Section
10(b) of the Act do not restrict an inquiry into whether a
Section 8(f) or a Section 9 relationship exists in any par-
ticular case, and that, as stated above, the normal majori-
ty status presumptions do not apply in an 8(f) context
until actual proof of a union's majority status is estab-
lished. The Supreme Court, in Iron Workers Local 103
(Higdon Contracting Co.), 434 U.S. 335 (1978), specifical-
ly approved of the Board's R. J. Smith Construction de-
subsection shall set aside the final proviso to section 8(a)(3) of this
Act Provided further, That any agreement which would be invalid,
but for clause (1) of this subsection, shall not be a bar to a petition
filed pursuant to section 9(c) or 9(e)
37 I note that there had existed, at least , a 25-year bargaining history
between NECA and the Union prior to the April 1, 1976 commercial
contract As counsel contends only that this particular agreement was an
8(f) contract , I need not, and do not, consider whether the original com-
mercial agreement and its successors were also 8 (f) contracts
38 In this regard , I note that in Carmichael Construction Co, 258
NLRB 226 (1981), the Board considered, as a factor in establishing a
union's majority status, that there was no record evidence that the origi-
nal agreement, or any successor thereto, between the employer and the
union was an 8(f) contract or that the union did not enjoy majority sup-
port prior to the execution of the contract or subsequently However, this
argument appears to me to be dictum inasmuch as the Board specifically
found the employer to have "conceded the majority status of the union"
prior to the refusal to bargain Id at 226 fn I Therefore , absent a more
definitive Board statement in this area, my view of the probability of an
initial 8(f) relationship herein has not been weakened
RELIABLE ELECTRIC CO. 849
cision, adopting the conclusion of the latter that there
can be no "Section 8(a)(5) bargaining order against an
employer refusing to abide by a 8(f) Section contract
unless the complaining union can demonstrate its majori-
ty status in the unit." Higdon Contracting Co., supra at
344. The court further concluded "that when the union
successfully seeks majority support, the prehire agree-
ment attains the status of a collective-bargaining agree-
ment executed by the employer with a union represent-
ing a majority of the employees in the unit." Id. at 350.
As to how a union demonstrates that it has attained ma-
jority status after an initial 8(f) contract, the Board, in
Precision Striping, 245 NLRB 169 (1979), stated that
"where a union, originally recognized under Section 8(f),
subsequently achieves status among employees who
make up a permanent, stable work force, or among em-
ployees employed at a particular jobsite, `the employer is
then under the statutory duty to recognize and bargain
with the union as the employees' exclusive representa-
tive."'
With whom does the burden of proof lie to allege and
establish that 1976 and succeeding NECA-Union com-
mercial contracts are or are not 8(f) agreements? In my
view, the burden resides with the General Counsel to es-
tablish that a collective-bargaining agreement , obviously
between parties engaged in the building and construction
industry, is or is not an 8(f) contract, that the involved
Union represented a majority of the bargaining unit em-
ployees prior to or during the existence of an initial con-
tract, or that the Union achieved majority status at a
later date. This conclusion is buttressed by the recent
Board decision, Stine Scovil Construction Co., 269 NLRB
465 (1984), in which the Board denied the General
Counsel's motion for summary judgment in a refusal-to-
bargain case involving an employer who obviously
worked in the building and construction industry, stating,
"We note that the complaint fails to establish, by allega-
tions or statements of fact, information necessary to de-
termine that the Respondent has violated Section 8(a)(1)
and (5) of the Act. Absent from the complaint are allega-
tions or statements of fact that the union is the lawful
representative of the Company's employees under Sec-
tion 9(a) of the Act; that the agreement between the par-
ties is or is not an 8(f) contract; that describe article 15
and its lawfulness under Section 8(e)'s proviso." Id. at
465, 466. Thus, the Board was unwilling to presume that
the contract was not an 8(f) agreement and, even absent
an answer, placed the burden of proof on the General
Counsel, where the burden to establish the existence of
unfair labor practices normally lies, to establish this fact.
In order to meet its burden in this case, it is not enough
for the General Counsel to merely rely on the successive
commercial contracts after 1978, each of which contains
a union-security clause and an exclusive hiring hall pro-
vision inasmuch as the Board stated in Carmichael Con-
struction Co., 258 NLRB at 226 fn. 1, "we do not rely
on, and hereby disavow, the Administrative Law Judge's
finding that `[t]he execution of the succeeding contracts
makes Section 8(f) irrelevant and, therefore, raises the
presumption that the Union was the majority representa-
tive of the unit employees."' Rather, I believe, counsel
for the General Counsel was faced with the burden of
specifically pleading in the amended complaint that the
April 1, 1976 commercial contract was not an 8(f) agree-
ment, making the normal majority status presumptions
applicable here, or conceding in the amended complaint
that the 1976 commercial contract was an 8(f) agree-
ment , of proving that the Union achieved majority status
either during it or at a subsequent time , transforming
whatever commercial agreement that was in effect at the
time into the status of a valid collective-bargaining
agreement . Higdon Contracting Co., supra at 350. Offer-
ing no evidence as to majority status, the General Coun-
sel failed to meet its burden of proof in this case and, as
the April 1, 1976 commercial contract, and the succeed-
ing commercial agreements, more likely than not were
8(f) contracts , no 8(a)(1) and (5) violations may be
found.39 Accordingly, I shall recommend that the 8(a)(1)
and (5) allegations of the amended complaint be dis-
missed.
Turning to the 8(a)(1) and (3) constructive discharge
allegations herein and with regard to the commercial
wiremen employed by Respondent, counsel for the Gen-
eral Counsel conceded at the outset of the hearing that it
would be "the logical conclusion" herein that there can
be no finding of constructive discharges unless Respond-
ent has been found to have also engaged in conduct vio-
lative of Section 8(a)(1) and (5) of the Act. Initially, I
note that a constructive discharge is not really a dis-
charge at all but, rather, a quit that the Board treats as a
discharge in view of the surrounding circumstances. Re-
molding by Oltmanns, Inc., 263 NLRB 1152, 1161 (1982);
Coin General Corp., 251 NLRB 653 (1980). As to the ele-
ments of proof necessary to establish the existence of
such, "the Board has held that a two-pronged test must
be met to establish a constructive discharge: `First, the
burdens imposed upon the employee must cause, and be
intended to cause, a change in his working conditions so
difficult or unpleasant as to force him to resign '; second,
the resultant burdens must be due to the employee's
union activities." Kogy's Inc., 272 NLRB 202 (1980);
Keller Mfg. Co., 272 NLRB 763 (1984). The crux of the
General Counsel's theory in support of the constructive
discharge allegations is that, given Respondent' s alleged-
ly unlawful repudiation of the April 1, 1983 successor
commercial contract, unlawful unilateral changes in the
terms and conditions of employment of its commercial
wiremen employees, and implementation of its decision
99 This result, although mandated by what I perceive as the current
state of Board law in this area, is troubling Thus, NECA and the Union
have had a longstanding bargaining relationship, one wh•ch undoubtedly
has presumed majority status In this regard , I am not so much question-
mg the Union's majority status as properly placing the burden on the
General Counsel to prove it Secondly, I am fully cognizant of the diffi-
culties imposed on the General Counsel in cases such as herein Thus, in
order to establish majority status in the mulnemployer unit, counsel for
the General Counsel would have to bear the expense (both in terms of
time and money) of searching through remote memories and subpoenaing
massive numbers of payroll records, company and union trust fund
records, and other materials necessary to prove the elements of majority
support Such institutional problems, of course, are no excuse for failing
to meet legal responsibilities , however, these do point out a troubling
aspect of this case Finally, I note that Respondent never once raised Sec
8(f) until its post-hearing brief, thereby giving no inkling to the General
Counsel of what evidence would be required herein
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to become a nonunion contractor, the employees were
faced with a very real Hobson's choice: continuing to
work and giving up their Section 7 right to union repre-
sentation or refusing to do so and quitting. However, as I
have concluded that the 8(a)(1) and (5) allegations must
be dismissed, there can be no finding that, in January
1984, Respondent was under any duty to recognize the
Union as the representative of its commercial employees.
Absent the existence of such an obligation, it cannot be
established that the individuals were confronted with the
above Hobson's choice on quitting their jobs or that any
other allegedly unlawful conduct under Section 8(a)(1)
and (5) of the Act in which Respondent engaged forced
the employees to so act. As to the four residential wire-
men who quit but allegedly were constructively dis-
charged, the same considerations apply albeit for a differ-
ent reason. The amended complaint contains no allega-
tions that Respondent engaged in any conduct violative
of Section 8(a)(1) and (5) of the Act with regard to these
employees, who concededly were in a seperate bargain-
ing unit . Thus, there was no evidence presented that Re-
spondent was under an obligation to recognize and bar-
gain, either through NECA or on its own behalf, with
the Union on behalf of the residential wiremen. There-
fore, it cannot be established that they were confronted
with the Hobson's choice with which the commercial
wiremen were allegedly confronted. Counsel for the
General Counsel was afforded the opportunity to do so
but chose not to further amend the complaint in order to
offer evidence in this regard. Accordingly, based on my
dismissal of the amended complaint allegations of 8(aXl)
and (5) conduct concerning the commercial wiremen and
no such allegations concerning the residential wiremen, it
cannot be found that any collective-bargaining agree-
ments were repudiated, that Respondent's employees
were forced to relinquish their Section 7 right to be rep-
resented by the Union, or that Respondent unlawfully
changed their terms and conditions of employment. In
short, there is insufficient record evidence to establish
that the circumstances surrounding the decision by the
alleged discriminatees to terminate their employment
should be considered as sufficient to warrant finding con-
structive discharges in violation of Section 8(a)(1) and (3)
of the Act. Therefore, I shall recommend that the 8(a)(1)
and (3) allegations of the amended complaint be dis-
missed.
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 mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in no unfair labor practices
herein.
[Recommended Order for dismissal omitted from pub-
lication.]