Riley Electric, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1988

290 N.L.R.B. 374 (N.L.R.B. 1988)

374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Riley Electric, Inc. and International Brotherhood
of Electrical Workers, Local No. 68. Case 27-
CA-7674
July 29, 1988
DECISION AND ORDER
Y CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On September 21, 1983, Administrative Law
Judge Frederick C. Herzog issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief,' the • Charging Party filed cross-ex-
ceptions and a brief in support thereof and in oppo-
sition to the Respondent's exceptions, the General
Counsel filed cross-exceptions and an answering
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings, findings, and conclusions as modified only to
the extent consistent with this Decision and Order.
The facts are set out more fully in the judge's
decision. The judge found that on March 26, 1980,
the Respondent, an electrical contractor in the con-
struction industry, executed a letter of assent-A
with the Charging Party (the Union) to the
"inside" agreement between the National Electrical
Contractors Association (NECA) and the Union.
On August 12, 1980, the Respondent executed a
letter of assent-A with the Union to the "residen-
tial" agreement between NECA and the Union.
The letters of assent authorize the Rocky Mountain
Chapter of NECA to act as the Respondent's col-
lective-bargaining representatives for all matters
contained in or pertaining to the applicable collec-
tive-bargaining agreements between NECA and the
Union.2 By its execution of the letters of assent, the
Respondent delegated bargaining authority to
NECA and, as a consequence, bound the Respond-
ent to the terms of the inside agreements effective
April 1, 1980, to March 31, 1981, and April 1,
1981, to March 31, 1983, and to the terms of the
residential agreements effective January 1, 1979, to
December 31, 1980; January 1, 1981, to December
31, 1981; and January 1, 1982, to December 31,
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, cross-exceptions, and briefs adequately present
the issues and the positions of the parties.
2 The authorizations specify that they shall remain in effect until termi-
nated by the Respondent giving written notice to NECA and the Union
at least 150 days prior to the then current anniversary date of the applica-
ble agreement.
1982. Nelson Electric, 241 NLRB 545 (1979); Reli-
able Electric Co., 286 NLRB 834 (1987).
From April 1, 1980, through May 19, 1981, the
Respondent abided by all the terms and conditions
of both the residential and inside agreements, in-
cluding those relating to the payment of trust fund
contributions and to the exclusive use of the
Union's hiring hall. It is undisputed that on May
20, 1981, the Respondent ceased abiding by the
terms of these agreements.
By letter of August 31, 1982, the Respondent no-
tified the Union that it was terminating "all con-
tracts and agreements" between the Respondent
and the Union. By letter of September 1, 1982, the
Respondent notified the Union of its intent to ter-
minate the residential agreement effective Decem-
ber 31, 1982. By letters of September 1, 1982, the
Respondent also notified the Union and NECA
that it had terminated the residential letter of
assent-A and the authorization of bargaining au-
thority to NECA contained therein.
Applying the then applicable "conversion" doc-
trine, the judge found that the parties' 8(f) prehire
contractual relationship had ripened into a "tradi-
tional" 9(a) majority relationship and that the Re-
spondent had violated Section 8(a)(5) and (1) by re-
pudiating its bargaining agreements with the
Union.
In John Deklewa & Sons, 282 NLRB 1375, 1377
(1987), the Board abandoned the conversion doc-
trine and decided to apply the following principles
in 8(f) cases:
(1) a collective-bargaining agreement permit-
ted by Section 8(1) 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
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
The Board also noted, at footnote 41 of Deklewa,
that it will require the party asserting the existence
of a 9(a) relationship to prove it.
We find, in agreement with the judge, that the
Respondent voluntarily entered into a contractual
relationship with the Union by virtue of its execu-
tion of the letters of assent.3 Under Deklewa, the
a We find no merit to the Union's contention that the relationship be-
tween the Respondent and the Union was, from its inception, a 9(a) rela-
Continued
290 NLRB No. 48
RILEY ELECTRIC
Respondent became bound for the term of the ap-
plicable residential and inside agreements under
Section 8 (a)(5) and ( 1). Accordingly , the Respond-
ent's unilateral repudiation on May 20 , 1981, when
governing agreements remained "binding , enforcea-
ble, and not subject to unilateral repudiation" vio-
lated Section 8(a)(5) and ( 1). Deklewa , above. As
the complaint and the record is directed to the re-
pudiation of the residential agreements effective to
December 31, 1981 , and December 31, 1982, and to
the repudiation of the inside agreement effective to
March 31 , 1983, we shall provide a make-whole
remedy directed to the terms of these agreements.4
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order that
it cease and desist and take certain affirmative
action necessary to effectuate the policies of the
Act. We shall order the Respondent to comply
with the terms of the "residential" agreements with
the Union from May 20, 1981, to December 31,
1982, and to the "inside" agreement from May 20,
1981 , to March 31 , 1983. We also shall order the
Respondent to make its employees whole ,5 as pre-
scribed in Ogle Protection Service , 183 NLRB 682
(1970), for any losses they may have suffered as a
result of the Respondent's failure to adhere to the
"residential" agreements from May 20 , 1981, to
tionship . Rather , we find that the relationship between the Respondent
and the Union was governed at all pertinent times by Sec . 8(f). The
Union contends that the initial agreement executed by the Respondent
was undertaken pursuant to Sec . 9(a) because the Respondent was a suc-
cessor to an employer , Economy Electric (Economy ), having an agree-
ment with the Union . We note, however, that under Deklewa , the Union,
as a party asserting the existence of a 9 (a) relationship , has the burden of
proving such a relationship As the Union has failed to demonstrate that
it attained 9(a) status with respect to either the employees of the Re-
spondent or those of Economy by means of a Board election or volun-
tary recognition pursuant to a showing of majority support , it has not sat-
isfied its burden under Deklewa . Moreover, the record establishes that
Economy , the purported "predecessor," remained in operation after the
Respondent , the purported "successor," commenced operations . Thus, it
appears that the Respondent independently secured a construction
project started initially by Economy , executed an 8(f) prehire agreement
with the Union , and then hired employees formerly working at the
project to complete the project pursuant to the hiring hall provisions of
the newly executed agreement.
4 Accordingly , we express no view regarding the applicability of any
successor agreements pursuant to the terms of the letters of assent.
S In his decision the judge failed to order the Respondent to pay its
employees wage benefits set forth under the terms of the repudiated
agreements. We find merit in the cross -exceptions of the General Counsel
and the Union that such a remedy is appropriate.
Whether there are any individuals entitled to be made whole because
they were denied an opportunity to work because of the Respondent's
failure to continue using a contractual hiring hall is best left to the com-
pliance stage of this proceeding . See, e .g., Southwestern Steel, 276 NLRB
1569 In 1 (1985), and Wayne Electric , 226 NLRB 409 ( 1976). We recog-
nize , in this regard , that enforcement of the hiring hall provisions con-
tained in the applicable agreements may be at odds with the view of the
court of appeals, expressed in Robertson v. NLRB , 597 F . 2d 1331 (10th
Cit. 1979 ). In this proceeding , however , the issue has been raised solely
to remedy the Respondent 's unfair labor practices and does not have a
bearing on the merits of the unfair labor practices found
375
December 31, 1982 , and to the "inside" agreement
from May 20, 1981, to March 31 , 1983, with inter-
est as computed in New Horizons for the Retarded.6
ORDER
The National Labor Relations Board orders that
the Respondent , Riley Electric , Inc., Denver, Col-
orado , its officers , agents , successors , and assigns,
shall
1. Cease and desist from
(a) Repudiating the January 1, 1981-December
31, 1981, and January 1, 1982-December 31, 1982,
"residential" collective-bargaining agreements be-
tween the Respondent and the Union and the April
1, 1981 -March 31 , 1983, "inside" collective-bar-
gaining agreement between the Respondent and the
Union.
(b) 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) Make whole its unit employees , 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 "residential" agreements with the
Union from May 20, 1981, to December 31, 1982,
and to the "inside" agreement with the Union from
May 20, 1981, to March 31, 1983 . The appropriate
unit is:
Those employees of ours who perform work
which is described in and covered by the Jan-
uary 1 , 1981 and Janaury 1, 1982, Denver Res-
idential Wiring Agreements and those employ-
ees who perform work which is described in
and covered by the April 1 , 1981 , Denver
Inside Electrical Construction Agreement,
each such agreement being between the Rocky
Mountain Chapter of the National Electrical
Contractors Association and the Local Union
No. 68, International Brotherhood of Electri-
cal Workers.
(b) Pay to the appropriate funds, with interest,
the health and welfare , pension , apprentice train-
" 283 NLRB 1173 (1987 ) Interest on and after January 1 , 1987, shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U .S.C. § 6621 Interest on
amounts accrued prior to January 1 , 1987 (the effective date of the 1986
amendment to 26 U S.C. § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).
Because the provisions of employees 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 to the
trust funds shall be determined in accordance with the procedure set
forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn 7 (1979).
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, and other contributions required to be paid
under the collective-bargaining agreements by
which it has been found to have been bound.
(c) 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 money due under the terms of this
Order.
(d) Post at its facility in Denver , Colorado,
copies of the attached notice marked "Appendix."7
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.
(e) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by the Union, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole , with interest , the unit
employees who have incurred losses of wages and
benefits because of our failure to abide by the
terms and conditions of the collective-bargaining
agreements between our company and the Union,
until the residential agreement 's expiration on De-
cember 31 , 1982, and the inside agreement's expira-
tion on March 31, 1983 . The appropriate unit is:
Our employees who perform work which is
described in and covered by the January 1,
1981 and January 1 , 1982, Denver Residential
Wiring Agreements and those employees who
perform work which is described in and cov-
ered by the April 1, 1981, Denver Inside Elec-
trical Construction Agreement , each such
agreement being between the Rocky Mountain
Chapter of the National Electrical Contractors
Association and Local Union No. 68 of the
International Brotherhood of Electrical Work-
ers.
WE WILL pay to the appropriate funds the health
and welfare , pension , apprentice training , and other
contributions required to be paid by the collective-
bargaining agreement or agreements to which we
have been bound.
RILEY ELECTRIC, INC.
7 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the 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 repudiate the January 1, 1981-De-
cember 31, 1981, and January 1 , 1982-December
31, 1982 , "residential ," and the April 1, 1981-
March 31, 1983 , "inside" collective-bargaining
agreements between our company and Internation-
al Brotherhood of Electrical Workers, Local No.
68, during the term of those agreements.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
Ernest L Duran Jr. and T. Michael Patton, Esgs., for the
General Counsel.
Lawrence W. Marquess, Esq. (Bradley, Campbell &
Carney), of Golden , Colorado , for the Respondent.
Philip Hornbein Jr., Esq., of Denver, Colorado , for the
Charging Party Union.
DECISION
STATEMENT OF THE CASE
FREDRICK C . HERZOG , Administrative Law Judge. I
heard this case in trial on October 13, 1982 , at Denver,
Colorado . International Brotherhood of Electrical Work-
ers, Local No. 68 (the Union) filed an original charge on
December 31, 1981, against Riley Electric , Inc. (the Re-
spondent). Pursuant thereto , on April 16, 1982, the Re-
gional Director for Region 27 of the National Labor Re-
lations Board issued a complaint and notice of hearing
against the Respondent.
The complaint alleges in substance that the Respond-
ent violated Section 8 (a)(5) and ( 1) of the National Labor
Relations Act (the Act), by refusing to comply with and
repudiating certain collective-bargaining agreements.
All parties have been afforded full opportunity to
appear , to introduce evidence, to examine and cross-ex-
amine witnesses , and to file briefs . Based on the entire
record , from my observation of the demeanor of the wit-
RILEY ELECTRIC
nesses, and having considered the posttrial briefs submit-
ted on behalf of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
The complaint alleges and the answer ' admits the fol-
lowing facts . The Respondent is now , and at all times
material has been , a corporation duly organized and ex-
isting by virtue of the laws of the State of Delaware, and
maintains its principal office and place of business in
Denver, Colorado , where it is, and at all times material
has been , engaged in electrical contracting in the con-
struction industry . Further, the Rocky Mountain chapter
of the National Electrical Contractors Association
(NECA), has been an organization composed of employ-
ers engaged in electrical contracting in the construction
industry in the State of Colorado and which exists for
the purpose, inter alia, of representing its employer-mem-
bers and/or employers who have assigned bargaining
rights to it in negotiating and administering collective-
bargaining agreements with the Union. NECA's mem-
bers annually purchase and receive goods and materials
in the course and conduct of their combined business op-
erations having a value in excess of $50 ,000 directly from
points and places outside the State of Colorado . During
the calendar year ending December 31, 1981, the Re-
spondent in the course and conduct of its operations pro-
vided services valued in excess of $50 ,000 for other busi-
ness enterprises, including the First National Bank of
Longmont within the State of Colorado, over which the
Board would assert jurisdiction on some basis other than
indirect standards . Therefore , in accordance with the Re-
spondent 's admission at trial , I find and conclude that the
Respondent and NECA are now, and at all times materi-
al have been , employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Alfred and Bonnie Riley are man and wife . For sever-
al years preceding April 1, 1980, Alfred Riley was half-
owner of a corporation known as Economy Electric
Company , which was, and still is, engaged in work simi-
lar to that which has since been performed by the Re-
spondent . Economy Electric Company was, and is, a
party to the collective-bargaining agreement between
NECA and the Union dealing with "inside" electrical
work . Although he was half-owner of Economy Electric
Company , Alfred Riley served as its vice president and
was in charge of its field operations; evidently his co-
owner, who bought him out , attended to administrative
work and sales work .2 Economy Electric Company was,
I As amended at the hearing.
2 The co-owner's wife was a full-time employee of NECA.
377
and by all that appears may remain , a member of NECA,
operating pursuant to NECA's collective-bargaining
agreement with the Union.
In April 1980 Alfred Riley became interested in setting
up a separate business . He talked to the Union 's business
manager about becoming a union contractor , and was
given a "laundry list" of things to do in order to carry
out his plans . One of the items on the "laundry list"
called for him to execute a "letter of assent" to the
"inside" agreement between NECA and the Union.
For the first few months of its existence the Respond-
ent was not incorporated . Instead it operated as a sole
proprietorship , owned entirely by Alfred Riley 's wife,
Bonnie . Bonnie Riley , however, was nothing more than
a figurehead in the business . She did whatever her hus-
band told her to do , and she did nothing unless he told
her to do it . Alfred Riley placed her in the position of
ownership of the business as a means of "skirting
around" certain union rules that might interfere with his
desire to either obtain benefits from the Union or to con-
tinue work with the tools of the electrician 's trade.
On March 26, 1980, Bonnie Riley , at Alfred Riley's di-
rection , went to the Union 's offices and signed a "letter
of assent" to the "inside" agreement between NECA and
the Union.3
Both of the Rileys professed to have little understand-
ing of the meaning or significance of the act of signing
the "letter of assent." Bonnie Riley claimed to have
signed the "letter of assent" solely because her husband
asked her to do so, though she did know that he would
be enabled to hire union members . Alfred Riley claimed
that despite his 20 years ' experience as a member of the
Union, and 3 years ' experience as an officer and owner
of a corporation that was a member of NECA and a
party to a collective-bargaining agreement between
NECA and the Union , his particular expertise lay only in
performing electrical work rather than in understanding
administrative or legal matters.
Around the same time that Bonnie Riley signed the
"letter of assent," Alfred Riley began talking to employ-
ees of Economy Electric Company, who were then
working on the Economy Electric's project know as
Earth Science Institute, about "switching over" from
Economy and going to work for his new business.
(Alfred Riley had succeeded in taking over the Earth
Science Institute project from Economy Electric Contin-
gent on this ability to retain the same employees who
had been working on it for Economy Electric .) He se-
cured the employees' agreement and, as he had been ad-
vised to do by the Union 's agent, instructed each of the
s The text of the "letter of assent" read , in relevant part, as follows:
In signing this letter of assent , the undersigned firm does hereby
authorize Rocky Mountain Chapter , NECA as it collective bargain-
ing representative for all matters contained in or pertaining to the
current approved Residential labor agreement between the Rocky
Mountain Chapter , NECA and Local Union 68 IBEW . This authori-
zation , in compliance with the current approved labor agreement,
shall become effective on the 2 day of July 1980. 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
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees "making the switch" to go down to the
Union 's office and notify the Union that they were no
longer working for Economy Electric so that they could
immediately be referred out to Riley Electric pursuant to
the Union 's hiring hall provisions with NECA.4
On or about August 12 , 1980 Bonnie Riley once more
went to the Union's offices and executed a "letter of
assent." On this occasion the "letter of assent" related to
the collective-bargaining agreement between NECA and
the Union , which had to do with "residential" work.
The "letter of assent" was made effective , retroactive to
July 2, 1980, so that certain health and welfare benefit
payments could be credited properly.5
The Respondent 's corporation came into being in Oc-
tober 1980 when the sole proprietorship known as Riley
Electric Company was issued articles of incorporation.
Respondent concedes that from April 1, 1980, through
May 19 , 1981, the Respondent hired only members of the
Union and that it did so through the Union 's hiring hall.6
During this period of time the Respondent made trust
fund contributions on behalf of all its employees as re-
quired by the relevant collective -bargaining agreement
between NECA and the Union . Respondent paid its em-
ployees union scale and abided by all the terms and con-
ditions of both the residential and inside agreement be-
tween NECA and the Union until May 19 , 1981.7
On May 20, 1981, the Respondent , for the first time,
hired a nonunion employee . Since then it has hired five
additional electricians and at the time of the hearing, had
employed six electricians . None were hired through the
Union's hiring hall . Neither were they paid wages ac-
cording to the NECA collective-bargaining agreement
with the Union . No contributions to health and welfare
trust funds were made on their behalf. Alfred Riley con-
ceded that the work being performed by the nonunion
• The parties stipulated at the trial that the following employees of
those employers that are ultimately determined in this case to be part of a
multiemployer collective -bargaining group represented by NECA consti-
tute units appropriate for the purposes of collective bargaining within the
meaning of Sec 9 (b) of the Act:
(a) Those employees who perform work which is described in and
covered by the January 1, 1981 and January 1 , 1982, Denver Resi-
dential Wiring Agreements between the Association and the Union
(b) Those employees who perform work which is described in and
covered by the April 1 , 1981, Denver Inside Electrical Construction
Agreement between the Association and the Union
Each of the agreements referred to, plus others in evidence, stipulates
that the agreements "shall apply to all firms who sign a 'letter of assent'
to be bound by this agreement" between the Rocky Mountain Chapter,
National Electrical Contractors Association , Inc and Local Union 68,
IBEW. Each agreement also made detailed provisions for matters such as
union security , exclusive hiring hall or referral procedure , grievance, ap-
prenticeship program , and many matters relating to wages and working
conditions.
B Each of the "letter of assent" signed by Bonnie Riley on behalf of the
business known as Riley Electric and/or her husband , Alfred , provided
that they should remain in effect until terminated by Riley Electric
giving written notice to NECA's Rocky Mountain Chapter and to the
Union at least 150 days before the then current anniversary date of the
relevant labor agreement
There was one exception insofar as membership was concerned, but
even that employee was referred through the Union 's hiring hall
T The inside agreement in effect on March 26 , 1981, was renewed on
April 1, 1980, for a 1 -year term , and renewed again on April 1, 1981, for
a 2-year term . The residential agreement in effect on August 12, 1980,
was renewed for 1-year terms on January 1, 1981, and again on January
1, 1982.
electricians is the same work performed by the union
electricians he previously employed , and is work gov-
erned by the collective -bargaining agreement . Those em-
ployees on the payroll , some seven in number , as of May
20, 1981 , who had been previously referred to the Re-
spondent by the Union were terminated on various dates
between July 14, 1981, and January or February 1982.
The parties stipulated that the Respondent repudiated
both the residential and the commercial , or inside , collec-
tive-bargaining agreements . Evidently this stipulation
refers to a constructive repudiation , for it is clear that
the Respondent did not terminate its delegation of bar-
gaining authority to NECA for either agreement prior to
the renewal dates previously mentioned . It was not until
August 31 , 1982, that Alfred Riley wrote a letter to the
Union stating , "Let this letter serve as official notifica-
tion for the termination of'all contracts and agreements
between Riley Electric Inc. and Electrical Workers
I.B.E.W . Local Union #68." On September 1, 1982, he
once again wrote the Union , as well as the Rocky Moun-
tain Chapter of NECA, undertaking to serve notice of
his intent to terminate the collective-bargaining agree-
ment and offering to meet and confer with the Local
Union for the purpose of negotiating a new contract.
Alfred Riley conceded in his testimony that these letters
were written as "safety valves," to guard against the loss
of this case.
On February 10, 1981, the Union filed a grievance
against the Respondent claiming that the Respondent had
failed to pay the contractually agreed -on wage rate for
overtime work . Alfred Riley appeared at the hearing on
the grievance , when he neither sought nor was he of-
fered advice from NECA in defense of the grievance.
The grievance was decided in favor of the Union and the
Respondent abided by the decision.
In October of 1980 , the yellow pages of the telephone
directory in Denver, Colorado, appeared . The Respond-
ent's advertisement there included the NECA symbol.
Shortly thereafter, according to Alfred Riley's testimony,
he was called by an officer of NECA and advised that
the NECA symbol would have to be removed from the
advertisement . Riley agreed , saying that the symbol had
been included erroneously . The symbol was removed at
the next opportunity.
Respondent concedes that it was signatory to the col-
lective-bargaining agreement with the Union , but argues
that neither the Respondent nor Bonnie or Alfred Riley
had ever been members of NECA or applied for mem-
bership , or ever sought to or had any involvement in the
negotiations between NECA and the Union , and that
NECA is not party to either of the "letter of assent"
signed by or on behalf of the Respondent.
Conclusions
Principles of industrial democracy embodied within
the Act assure employees against the prospect of repre-
sentation by a union except when the employees have
freely chosen such representation for themselves. Section
9(a) of the Act provides that
RILEY ELECTRIC
Representatives designated or selected for the pur-
poses of collective bargaining by the majority of the
employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours
of employment , or other conditions of employment.
There are, of course , exceptions to the general rule.
One of these is found in cases involving employers
within the building and construction industry . The Act
was amended in 1947, as Congress recognized the need
to deal with problems that had a peculiar impact on the
building and construction industry . Under traditional
principles, construction industry employers and unions
had been previously prevented from entering into collec-
tive-bargaining agreements before the establishment of
the union's majority status.
Section 8(f) was included among the 1947 amendments
to the Act, and was enacted in large part to immunize
employers and unions in the building and construction
industry from the strictures of Section 8(a) and (b) of the
Act in situations where recognition is granted and a col-
lective-bargaining agreement is entered into before the
recognized labor organization 's majority status has been
established under the provisions of Section 9 of the Act.
See NLRB Y. Iron Workers Local 103, 434 U.S. 335
(1978); cf. Ladies Garment Workers v. NLRB, 366 U.S.
731 (1961).
Section 8(f) of the Act reads , in pertinent part, as fol-
lows:
It shall not be an unfair labor practice under subsec-
tions (a) and (b) of this section for an employer en-
gaged primarily in the building and construction in-
dustry 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 an action defined
in section 8(a) of this Act as an unfair labor prac-
tice) because (1) the majority status of such labor
organization has not been established under the pro-
visions of section 9 of this Act prior to the making
of such agreement.
There can be little doubt that when the Respondent exe-
cuted the "letters of assent" with the Union it thereby
entered into a contractual relationship with the Union.
Apart from the difficulty I have in crediting the testimo-
ny of Alfred Riley to the effect that he was uninformed
respecting the effects of such a contract, I find that the
"letters of assent ," themselves, have a clear and unambig-
uous meaning conveyed on their face. Neither the pro-
fessed lack of understanding by Alfred Riley nor the al-
leged failure to explain the contract's import , as testified
to by each of the Rileys, seems to be sufficient to war-
rant a finding that Respondent should be held to have
entered into a contractual relationship without an ade-
quate meeting of the minds. Indeed, even the Respond-
ent, in its brief, concedes that the agreements between
379
the Respondent and the Union were 8(f) agreements.8
The essential question in this case is whether the 8(f)
contract between the Respondent and the Union was
ever transformed into a Section 9 relationship . For it is
well established that during the term of an 8 (f) contract
an employer may withdraw recognition from the Union
and/or unilaterally make changes in the contractual
working conditions without violating Section 8(a)(5)
unless the Union has obtained a majority status and a
9(a) bargaining relationship had developed. See R. J.
Smith Construction Co., 191 NLRB 693 (1971), enf.
denied sub nom . Operating Engineers Local 150 v. NLRB,
480 F.2d 1186 (D.C. Cir . 1973), decision on remand 208
NLRB 615 (1974); Ruttmann Construction Co., 191
NLRB 701 (1971); Dee Cee Floor Covering, 232 NLRB
421 (1977); cf. Higdon Contracting, supra.
It seems clear that the complaint , which alleges a vio-
lation of Section 8(a)(5), can be found meritorious only if
the 8(f) relationship was ever transformed into a Section
9 relationship . This issue will turn on whether the Union
became the majority representative among the employees
affected ; since an 8(f) contract can exist without majority
status there is no presumption of majority status that
flows from the mere existence of an 8(f) contract. R. J.
Smith Construction Co., supra; Dee Cee Floor Covering,
supra . A union cannot rely on the mere passage of time
to transform an 8(f) relationship into a majority 9(a) rela-
tionship. Instead, evidence is required showing that
sometime during the parties' collective -bargaining rela-
tionship , the union obtained either actual majority status
or at least a presumption of majority status in an appro-
priate unit.
The General Counsel contends that the necessary
showing has been made in this case . He argues that by
executing the "letters of assent" the Respondent not only
entered into a relationship with the Union but also joined
the existing multiemployer association unit. From that,
he concludes that the Respondent's present and prospec-
tive work force was immediately merged into a multiem-
ployer unit and simultaneously the Respondent 's 8(f) re-
lationship with the Union was merged into the 9 (a) rela-
tionship already in existence between the Union and
NECA, citing Authorized Air Conditioning Co., 236
NLRB 131 fn. 2 (1978), enfd. 606 F.2d 899 (9th Cir.
1979); Amando Electric, 238 NLRB 37 fn. 1 (1978). The
Respondent argues vigorously for a contrary result, and
a finding that the Respondent never became a member of
the multiemployer unit.
Based on the record made that , among other things,
the Respondent secured the services of each of its em-
ployees through the hiring hall of the Union, and that
"The General Counsel 's position is similar, although the General
Counsel contends that the relationship was immediately thereafter modi-
fied, as discussed infra . The Charging Party/Union advances the agree-
ment that , for various reasons, the Respondent entered not merely into an
8(f) agreement, but one possessing all the attributes and entitled to all the
protections accorded a collective -bargaining agreement entered into pur-
suant to Sec . 9(a) of the Act In light of the General Counsel's decision
not to pursue the several theories advanced by the Union. and in view of
my decision, which grants the Union relief, albeit on the General Coun-
sel's theory , I see no reason to decide each of the points raised by the
Union
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
each such employee was a member of the Union during
the time period immediately following the execution of
the "letter of assent ," I find clear warrant for the finding,
which I make , that at relevant times after Respondent's
8(f) agreement was executed with the Union, the Union
was the majority representative of the Respondent's em-
ployees . Consequently, I find that the 8(f) agreements
ripened into traditional collective-bargaining agreements
to which Respondent was bound . I note that throughout
this period the Respondent was paying the wages called
for in the Union's contract, was contributing to the
health and welfare benefit programs that existed by
virtue of the Union's collective-bargaining agreement
with NECA, that the Respondent obtained all employees
through the Union 's hiring hall , and that the Respondent
abided by the grievance machinery contained within the
agreements between NECA and the Union. Under these
circumstances it seems clear that the Respondent was not
privileged to repudiate its collective -bargaining agree-
ment with the Union when it did so. See Haberman Con-
struction Co., 236 NLRB 79 fn. 1 (1978); and V M Con-
struction Co., 241 NLRB 584 fn. 1 (1979).
I also conclude , in agreement wih the General Coun-
sel, that the Respondent voluntarily joined the Rocky
Mountain Chapter of NECA. In Ruan Transport Corp.,
234 NLRB 241, 242 (1978), the Board stated several of
the governing principles , as follows:
The Board has consistently held that "the essential
element waranting the establishment of multiem-
ployer units is clear evidence that the employers un-
equivocally intend to be bound in collective bar-
gaining by group rather than by individual action.
The correlative standard for excluding an employer
from such a unit is evidence of an intent to pursue
an individual course of action with respect to labor
relations." As a general rule, the Board has found
that an employer does not become a part of a multi-
employer bargaining group (i.e., it does not intend
to be bound by group bargaining ) where it merely
adopts a collective-bargaining agreement in the ne-
gotiation of which it did not actually participate
and which it did not authorize another to negotiate
on its behalf.
Here the "letters of assent " signed by Respondent con-
tained the sort of delegations of bargaining authority to
NECA that had been repeatedly held to furnish suffi-
cient evidence of the Employer's intent to join with
NECA and to become part of the multiemployer bar-
gaining unit . Indeed , there have been instances in which
the language demonstrating the intent to be bound was
identical to that which is found in this case . See Nelson
Electric, 241 NLRB 545 (1979); and Hayden Electric, 256
NLRB 601 (1981).
Thus, the Respondent 's repudiation of its collective-
bargaining agreement with the Union was clearly unlaw-
ful and violative of Section 8(a)(5) and (1) of the Act.9
Finally it must be noted that the Respondent failed to
give the sort of notice required by Section 8(d) of the
Act before it repudiated its contract with the Union. By
such a failure the Respondent must be held to have vio-
lated Section 8(a)(5) and (1) of the Act. Amanda Electric,
supra : Oak Cliff-Golman Banking Co., 202 NLRB 614
(1973), and 207 NLRB 1063 (1973).
On the basis of these findings of fact and on the entire
record in this proceeding , I make the following
CONCLUSIONS OF LAW
1. Riley Electric, Inc. is an employer engaged in com-
merce 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. Those employees who performed work that is de-
scribed in and covered by the January 1, 1981, and Janu-
ary 1, 1982 Denver Residential Wiring Agreements and
those employees who perform work that is described in
and covered by the April 1 , 1981 Denver Inside Electri-
cal Construction Agreement between the Rocky Moun-
tain Chapter of the National Electrical Contractors Asso-
ciation and Local Union No. 68 of the International
Brotherhood of Electrical Workers, including those em-
ployed by Riley Electric, Inc., constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. At all times since on or about April 2, 1980, the
Union has been and now is, the exclusive representative
of all the employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(c) of the Act.
5. By on or about May 20, 1981 , repudiating the terms
of the collective-bargaining agreement negotiated be-
tween the Union and the Association , and by repudiating
the Union as collective -bargaining representative of its
employees , Riley Electric, Inc. has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]
9 It must be remembered that this is not a case involving a question of
whether timely notice was given . Here , the Respondent failed to give
any notice whatsoever to the Union until months had passed after it repu-
diated the agreements Even then, the notices given to the Union were
not necessarily the sort of evidence of clear intent required , but rather
were an effort by the Respondent to limit its losses should this case be
lost