Scheid Electric

National Labor Relations Board - Board Decisions

Apr 29, 2010

355 N.L.R.B. 160 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 27
160
Scheid Electric and International Brotherhood of
Electrical Workers, Local 343. Case 18–CA–
19084
April 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On November 13, 2009, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
We agree with the judge’s finding that the Respondent
constructively discharged Union Steward Tim Robertson
by reducing his work hours because of his union activi-
ties. Grocers Supply Co., 294 NLRB 438, 439 (1989).
We find it unnecessary to rely on the judge’s alternative
finding that the Respondent constructively discharged
Robertson under the “Hobson’s choice” theory of viola-
tion.
We also agree with the judge that the Respondent vio-
lated Section 8(a)(1) of the Act by interrogating Robert-
son about his union sympathies. In mid-April 2009,
Robertson was summoned to a meeting with the Respon-
dent’s owner, Martin Walgenbach, in Walgenbach’s of-
fice. Walgenbach asked Robertson whether he would
remain employed if the Respondent went nonunion.
Robertson answered that he could not afford to lose his
pension and health insurance benefits, that he had always
been and always would be a union member, and that he
could not remain employed by the Respondent if it went

1 In the absence of exceptions, we adopt the judge’s finding that, at a
union meeting on May 26, 2009, the Respondent’s owner, Martin Wal-
genbach, unlawfully threatened employees that the Respondent was
going nonunion, that there would no longer be a contract, and that none
of the employees would have jobs.
2 We have revised the judge’s conclusions of law to reflect the
judge’s finding that the Respondent unlawfully failed to continue in
effect the provisions of the parties’ collective-bargaining agreements.
We have revised the judge’s proposed Order and notice to provide that
the Respondent may neither fail to continue provisions of the collec-
tive-bargaining agreements nor implement changed provisions without
the consent of the Union. We have further revised the judge’s proposed
Order and notice to conform more closely to his findings and to the
amended conclusions of law as well as to the Board’s customary reme-
dial language.
nonunion. Walgenbach replied that he would hate to lose
Robertson.
The judge correctly stated that the Board determines
“whether under all the circumstances the interrogation
[of an employee] reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act.” Bloomfield
Health Care Center, 352 NLRB 252 (2008), quoting
Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984),
enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). Among the factors that may be consid-
ered in making such an analysis are the identity of the
questioner, the place, and method of the interrogation,
the background of the questioning and the nature of the
information sought, and whether the employee is an open
union supporter. Stevens Creek Chrysler Jeep Dodge,
353 NLRB 1294, 1295 (2009). Applying these factors,
we find that Walgenbach’s questioning was coercive.
The first two factors strongly indicate a coercive inter-
rogation. It was carried out by the highest ranking offi-
cial of the Respondent, Owner Walgenbach, and took
place in his office. See Matros Automated Electrical
Construction Corp., 353 NLRB 569, 571 (2008), enfd.
2010 WL 456755 (2d Cir. 2010). The background of the
questioning and the nature of the information sought also
exacerbated the coercive circumstances. At the time of
Walgenbach’s inquiry as to whether Robertson would
remain with the Company if it went nonunion, the Re-
spondent was obligated to recognize the Union based on
existing collective-bargaining agreements. In this con-
text, Walgenbach’s question coercively conveyed the
message that the Respondent was prepared to withdraw
recognition from the Union, thereby pressuring Robert-
son to reveal whether he would support Walgenbach in
this unlawful scheme. As the Board explained in F.M.L.
Supply, Inc., 258 NLRB 604, 616 (1981), such questions
are coercive because they tend to “force the employees to
abandon their sympathy for and allegiance to the Union”
Accord: Controlled Energy Systems, 331 NLRB 251, 257
(2000); East Belden Corp., 239 NLRB 776, 793 (1978),
enfd. 634 F.2d 635 (9th Cir. 1980). And where, as here,
Robertson was the union steward charged with represen-
tational duties, including administering the contracts that
Walgenbach was planning to repudiate, the coercive im-
pact of his question would reasonably be acute. Indeed,
Robertson’s status as an open union supporter (the final
Rossmore factor) would reinforce, rather than ameliorate,
the coercive effect of Walgenbach’s question because it
effectively suggested to Robertson that the Union’s
status and his representational duties were in jeopardy.3

3 Contrary to the Respondent’s representations in its exceptions,
there is no evidence that the Union had lost majority support at the time
of the interrogation. In any event, the Union enjoyed an irrebuttable
SCHEID ELECTRIC 161
Under these circumstances, the interrogation of Robert-
son violated Section 8(a)(1).4
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 5.
“5. Respondent violated Section 8(a)(1) and (5) of the
Act when it withdrew its recognition of the Union as the
exclusive collective-bargaining representative of the unit
and repudiated the parties’ existing collective-bargaining
agreements. It further violated Section 8(a)(1) and (5) of
the Act when it instituted new terms and conditions of
employment, including wage rates and pension and
health benefits, without obtaining the Union’s consent. It
also violated Section 8(a)(1) and (5) when it failed to
continue in effect the provisions of the collective-
bargaining agreements without obtaining the Union’s
consent.”
ORDER
The National Labor Relations Board orders that the
Respondent, Scheid Electric, Mankato, Minnesota, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities
and sympathies.
(b) Threatening employees that it was going nonunion,
that there would no longer be a contract, and that none of
the employees would have jobs.
(c) Failing and refusing to bargain collectively and in
good faith with the Union by withdrawing recognition
from the Union as the exclusive collective-bargaining
representative of the unit and repudiating the parties’
existing collective-bargaining agreements.
(d) Failing to continue in effect all the terms and con-
ditions of the parties’ existing collective-bargaining
agreements, by changing wage rates and failing to make
the contractually-required contributions to the fringe
benefits funds found in article VI of the parties’ collec-
tive-bargaining agreements, without the Union’s consent.
(e) Implementing wage rates and other terms and con-
ditions of employment inconsistent with the terms and
conditions of the parties’ existing collective-bargaining
agreements without the Union’s consent.
(f) Constructively discharging employee Tim Robert-
son because Robertson supported or assisted the Union

presumption of majority support during the life of the collective-
bargaining agreements. Trailmobile Trailer, LLC, 343 NLRB 95, 97
(2004).
4 Because there are no exceptions to the judge’s finding that Wal-
genbach unlawfully threatened employees with job loss at the union
meeting on May 26, we find it unnecessary to address the judge’s addi-
tional finding that Walgenbach threatened Robertson with job loss, as
finding the additional violation would not affect the remedy.
and to discourage employees from engaging in those
activities.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain in good faith with the Union
as the exclusive collective-bargaining representative of
the unit employees.
(b) Rescind the unilaterally implemented wage rates
and other terms and conditions of employment inconsis-
tent with the terms and conditions of the parties’ existing
collective-bargaining agreements.
(c) Restore the terms and conditions of employment of
the parties’ existing agreements, and make the unit em-
ployees whole for any loss of earnings and other benefits
attributable to the Respondent’s unlawful conduct, with
interest, in the manner set forth in the remedy section of
the judge’s decision.
(d) Continue in effect all the terms and conditions of
the parties’ existing agreements by making all the re-
quired benefit fund contributions to the Union’s benefit
funds found in article VI of the agreements that have not
been made since June 1, 2009, in the manner set forth in
the remedy section of the judge’s decision.
(e) Within 14 days from the date of this decision, offer
Tim Robertson full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(f) Make Tim Robertson whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dent’s unlawful conduct, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(g) Within 14 days from the date of this decision, re-
move from its files all references to the unlawful termi-
nation of Tim Robertson, and within 3 days thereafter
notify him in writing that this has been done and that the
unlawful termination will not be used against him in any
way.
(h) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Mankato, Minnesota, copies of the attached
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 15, 2009.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT interrogate employees regarding the em-
ployees’ union sympathy and activity.
WE WILL NOT threaten employees that we are going
nonunion, that there will no longer be a contract, and that
none of the employees will have jobs.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union by withdrawing recog-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
nition from the Union as the collective-bargaining repre-
sentative of our employees or repudiate our existing col-
lective-bargaining agreements with the Union.
WE WILL NOT fail to continue in effect all the terms
and conditions of our existing collective-bargaining
agreements, by changing wage rates and by failing to
make the contractually-required contributions to the Un-
ion’s fringe benefit funds, without the Union’s consent.
WE WILL NOT implement wage rates and other terms
and conditions of employment inconsistent with the
terms and conditions of our existing collective-bargain-
ing agreements without the Union’s consent.
WE WILL NOT constructively discharge employees be-
cause they supported or assisted the Union and to dis-
courage employees from engaging in those activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of employees in the bargaining unit and adhere to all
provisions in our existing collective-bargaining agree-
ments with the Union.
WE WILL rescind the unilaterally implemented wage
rates and other terms and conditions of employment in-
consistent with our existing collective-bargaining agree-
ments.
WE WILL restore the terms and conditions of employ-
ment of our existing collective-bargaining agreements,
and make the unit employees whole for any loss of earn-
ings and other benefits attributable to our unlawful con-
duct, with interest.
WE WILL continue in effect all the terms and conditions
of our existing collective-bargaining agreements by mak-
ing all the required benefit fund contributions as set forth
in article VI of our agreements.
WE WILL, within 14 days from the date of the Board’s
decision, offer Tim Robertson full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent job, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Tim Robertson whole for any loss of
earnings and other benefits suffered as a result of our
unlawful conduct, with interest.
WE WILL, within 14 days from the date of the Board’s
decision, remove from our files all references to the
unlawful termination of Tim Robertson, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the unlawful termination will not
be used against him in any way.

SCHEID ELECTRIC

SCHEID ELECTRIC 163
Joseph H. Bornong, Esq., for the General Counsel.
Jon S. Olson, Esq., of Edina, Minnesota, for the Respondent-
Employer.
Michael Priem, of Rochester, Minnesota, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on October 20, 2009,1 in Minneapolis,
Minnesota, pursuant to a complaint and notice of hearing (the
complaint) issued by the Regional Director for Region 18 of the
National Labor Relations Board (the Board). The complaint,
based upon an original and amended charge filed on various
dates in 2009 by International Brotherhood of Electrical Work-
ers, Local 343 (the Charging Party or the Union) alleges that
Scheid Electric (the Respondent or the Employer) has engaged
in certain violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act). The Respondent filed a
timely answer to the complaint denying that it had committed
any violations of the Act.
Issues
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by interrogating an employee about his union
activities and threatening him with loss of employment. It fur-
ther alleges that the Respondent constructively discharged an
employee because of the employees assistance and support of
the Union in violation of Section 8(a)(1) and (3) of the Act.
Lastly, the complaint alleges that the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act when it withdrew recognition of
the Union as the exclusive collective-bargaining representative,
repudiated the parties’ collective-bargaining agreement, and
instituted new terms and conditions of employment without
notice or affording the Union an opportunity to bargain with
respect to the conduct and effects of the conduct.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the oral argu-
ment of the General Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in residential and
commercial electrical contracting and service, with its principal
office and place of business located in Mankato, Minnesota.

1 All dates are in 2009, unless otherwise indicated.
2 The Respondent did not appear at the hearing and presented no evi-
dence in its defense. Prior to the hearing, the Respondent appeared by
counsel and filed an answer. On October 16, counsel for the Respon-
dent participated in two conference calls with the General Counsel and
me. Prior to the commencement of the hearing on October 20, I re-
quested the General Counsel to try and contact the Respondent’s coun-
sel as no one appeared at the hearing on behalf of the Employer. Coun-
sel for the General Counsel was able to reach Respondent’s attorney by
telephone and reported that the attorney was not authorized to represent
the Respondent in the proceeding and would not be appearing at the
hearing. Accordingly, I proceeded to take the evidence of the General
Counsel.
Respondent in conducting its business operations purchased
and received goods and materials valued in excess of $50,000
at its Mankato, Minnesota facility directly from suppliers lo-
cated outside the State of Minnesota. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On or about April 12, 2006, Respondent entered into two
“Letter of Assents-A” whereby it agreed to be bound by the
collective-bargaining agreement between the Union and the
Minneapolis Chapter of the National Electrical Contractors
Association, Inc. (NECA), and to adhere to future agreements
unless timely notice was given (GC Exhs. 2 and 3).3 On or
about July 23, 2007, a majority of the unit selected the Union as
their representative for the purposes of collective bargaining
with Respondent.4
At all material times, Martin Walgenbach has been the
owner of Respondent and a supervisor within the meaning of
Section 2(11) of the Act. Likewise, Allan Stork and Michael
Priem have been business managers of the Union.
B. The 8(a)(1) Allegations
The General Counsel alleges in paragraphs 5(a) and (b) of
the complaint that the Respondent in mid-April 2009 interro-
gated an employee regarding the employee’s union sympathy
and activity and threatened the same employee with loss of
employment in retaliation for the employee’s union activity and
support. In late May 2009, the General Counsel asserts that the
Respondent threatened employees that it might go nonunion
and also threatened them with loss of employment if they con-
tinued to support the Union.

3 The Respondent became a party to the Residential Wiring Agree-
ment from September 1, 2008, to August 31 (GC Exh. 4), and the Resi-
dential Wiring Agreement from September 1, to August 31, 2010 (GC
Exh. 5). Additionally, the Respondent became a party to the Inside
Construction Agreement from June 27, 2008, to June 30, 2010 (GC
Exh. 6).
4 The “Voluntary Recognition” document states in pertinent part:
This will confirm the fact that on July 23, 2007, at Scheid Electric you,
Marty Walgenbach met with me and Mark Magult (witness) to discuss
IBEW Local Union 343’s request that you recognize it as the NLRA
Sec. 9(a) collective-bargaining representative of all of your employees
performing electrical construction work within the jurisdiction of the
local union on all present and future jobsites, which we both agree is a
unit appropriate for bargaining under Sec. 9(a) of the National Labor
Relations Act. We presented to you authorization cards demonstrating
that a majority of your employees have designated Local Union 343 to
represent them for collective-bargaining purposes. You examined the
cards and agreed that the local union has the support of a majority of
the bargaining unit employees. Based on that showing of majority
support, you have recognized the local union as the NLRA Sec. 9(a)
collective-bargaining representative as described above (GC Exh. 8).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
Facts
Employee Tim Robertson initially commenced employment
with the Respondent as a “union salt” in early 2003, and left
their employ in early 2006 when the Respondent refused to sign
a union contract. After approximately a 7-month hiatus, he was
rehired in late 2006, and remained continuously employed until
he was separated on June 16 (GC Exh. 22). During his second
period of employment, Robertson served as the union shop
steward.
In mid-April 2009, Robertson was summoned to a meeting
in Walgenbach’s office. Walgenbach asked Robertson whether
he would remain employed if the Respondent went nonunion.
Robertson replied that he could not afford to lose his pension or
health insurance benefits and has always been a union member.
Robertson informed Walgenbach that he could not remain an
employee of Respondent if it decided to go nonunion, that he
was a union member and would always be a union member.
Walgenbach told Robertson that he would hate to lose him.
Analysis
The Board has held that interrogation is not a per se violation
of Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176, (1984), affd. sub nom. HERE Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). In determining whether an interro-
gation is unlawful, the Board examines whether, under all the
circumstances the questioning reasonably tends to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Rossmore House, 269 NLRB at 1177–1178.
Emery Worldwide, 309 NLRB 185, 186 (1992). Under the
totality of circumstances approach, the Board examines factors
such as whether the interrogated employee is an open and ac-
tive union supporter, the background of the interrogation, the
nature of the information sought, the identity of the questioner,
and the place and method of interrogation. Rossmore House,
269 NLRB at 1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48
(2d Cir. 1964); Sunnyvale Medical Clinic, 277 NLRB 1217,
1218 (1985).
Based on the unrebutted testimony of Robertson, who held
the position of union steward and was interrogated in the
owner’s office, I find that the Act was violated. In this regard,
Walgenbach interrogated Robertson about his union activities
and threatened him with loss of employment because of his
support for the Union.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act as alleged in paragraphs 5(a) and (b) of the
complaint.
Priem testified that union general membership meetings are
normally held once a month, however, on May 26, the Union
held a special meeting at the Teamsters hall in Mankato, Min-
nesota. Prior to the meeting that commenced around 5:30 p.m.,
both Priem and Robertson observed Walgenbach pull his truck
into the parking lot. Priem apprised Walgenbach that this was a
members’ only meeting and he was not invited. Walgenbach
replied that the meeting concerned his employees and he in-
tended to be present. After the seven or eight employees and
the business managers finished their refreshments, and just
before the meeting commenced, Walgenbach came into the
meeting room. In a very loud manner, he announced that the
Union has never done anything for him and his shop was going
to go nonunion. He further stated that we are no longer going
to have a contract and none of you are going to have a job. He
ended his remarks with profanity and stated that the employees
could now go ahead with their meeting. Robertson, who at-
tended the May 26 meeting, confirmed that Walgenbach uttered
the above statements in his and other employees’ presence.
Based on the unrebutted testimony of Priem and Robertson, I
find in agreement with the General Counsel’s allegation in
paragraph 5(c) of the complaint that Section 8(a)(1) of the Act
has been violated.
C. The 8(a)(1) and (3) Allegations
The General Counsel alleges in paragraphs 6(a) through (c)
of the complaint that the Respondent on or about May 1,
stopped assigning work to employee Robertson, and construc-
tively discharged him on or about June 16, because of his assis-
tance and support for the Union and to discourage employees
from engaging in these activities.
Facts
Robertson testified that after his meeting with Walgenbach
in mid-April 2009, his hours of work started to gradually de-
cline. Prior to April 2009, Robertson was regularly assigned 40
hours of work each week. Additionally, Robertson had his
company truck and credit card removed. After mid-April 2009,
Robertson started calling the Respondent two–three times each
week looking for additional hours of work. His work assign-
ments reached an all time weekly low of 6 hours after the May
26 union meeting. He then started calling the Employer three–
four times per week looking for increased work. Robertson
was told by employer representatives that he would receive a
call back when work was available but he never received such a
call.
Robertson became discouraged and went to the Respondent’s
office on June 16 to request a layoff slip. The Respondent pro-
vided him a separation notice indicating that he was let go due
to a reduction in force (GC Exh. 22).
Discussion
In Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
SCHEID ELECTRIC 165
have taken the same action even if the employee had not en-
gaged in protected activity.
Under the Act, a traditional constructive discharge occurs
when an employee quits because his employer has deliberately
made the working conditions unbearable and it is proven that
(1) the burden imposed on the employee caused and was in-
tended to cause a change in the employee’s working conditions
so difficult or unpleasant that the employee is forced to resign,
and (2) the burden was imposed because of the employee’s
union activities. Grocers Supply Co., 294 NLRB 438, 439
(1989). Under the Hobson’s choice theory, an employee’s
voluntary quit will be considered a constructive discharge when
an employer conditions an employee’s continued employment
on the employee’s abandonment of his or her Section 7 rights
and the employee quits rather than comply with the condition.
Hoerner Waldorf Corp., 227 NLRB 612, 613 (1976).
Based on the unrebutted testimony of Robertson, who ex-
perienced unbearable working conditions that commenced after
his mid-April 2009 meeting in Walgenbach’s office and con-
tinued after the May 26 union meeting, I find that Robertson
experienced such a reduction of his assigned work hours that he
was forced to resign by seeking a layoff on June 16. Likewise,
it is apparent, that Walgenbach retaliated against Robertson
when he learned that Robertson intended to remain a loyal un-
ion member and would not resign his membership if the Em-
ployer went nonunion.
For all of the above reasons, I find either under the tradi-
tional constructive discharge line of cases or those under the
Hobson’s choice theory, Robertson’s voluntary quit must be
considered to be a constructive discharge. Convergence Com-
munications, Inc. 339 NLRB 408, 412–413 (2003). Therefore,
I find in agreement with the General Counsel that Respondent
violated Section 8(a)(1) and (3) of the Act and sustain the alle-
gations in paragraph 6 of the complaint.
D. The 8(a)(1) and (5) Allegations
The General Counsel alleges in paragraphs 8(c) and 10(a) of
the complaint that on or about July 23, 2007, a majority of the
unit designated the Union as their representative for the pur-
poses of collective bargaining and since that date based on
Section 9(a) of the Act, the Union has been the designated ex-
clusive collective-bargaining representative of the unit. The
Respondent denied both of these allegations in its answer.
The Board in Staunton Fuel & Material, Inc. 335 NLRB 717
(2001), addressed the issue of how a union whose status as a
bargaining representative is governed by Section 8(f) can ac-
quire through agreement with the employer the status of major-
ity bargaining representative under Section 9(a) of the Act.
The Board held that a written agreement will establish a 9(a)
relationship if its language unequivocally indicates that the
union requested recognition as majority representative, the
employer recognized the union as a majority representative, and
the employer’s recognition was based on the union’s having
shown, or having offered to show, an evidentiary basis of its
majority support. The Board noted that the approach taken by
the Tenth Circuit in two cases, NLRB v. Triple C Maintenance,
Inc., 219 F.3d 1147 (10th Cir. 2000), and Oklahoma Installa-
tion Co., 219 F.3d 1160 (10th Cir. 2000), establishes a legally
sound and eminently practical set of standards for self-
sufficient majority recognition. In both cases, the court con-
firmed that written contact language, standing alone could in-
dependently establish 9(a) bargaining status. To be sufficient,
such language must unequivocally show (1) that the union re-
quested recognition as the majority representative of the unit
employees; (2) that the employer granted such recognition; and
(3) that the employer’s recognition was based on the union’s
showing of its majority support. As the Tenth Circuit discussed
in Triple C, although it would not be necessary for a contract
provision to refer explicitly to Section 9(a) in order to establish
that the union has requested and been given 9(a) recognition,
such a reference would indicate that the parties intended to
establish a majority rather than an 8(f) relationship.
The evidence adduced at the hearing conclusively establishes
that the Respondent voluntarily recognized the Union as a 9(a)
representative under the Act (GC Exh. 8).
The General Counsel alleges in paragraphs 12(a) through (d)
of the complaint that on or about June 2, the Respondent with-
drew its recognition of the Union as the exclusive collective-
bargaining representative of the unit and repudiated the parties’
collective-bargaining agreement and on or about June 3, the
Respondent instituted new terms and conditions of employment
including wage rates, pension and health benefits without no-
tice to or affording the Union an opportunity to bargain with
respect to this conduct and the effects of the conduct.
Facts
By letter dated June 2, the Employer withdrew its recogni-
tion of the Union as the exclusive collective-bargaining repre-
sentative of the unit based on objective evidence it received
from a majority of its employees (GC Exh. 9).
By letter dated June 2, the Union informed the Respondent
that it is bound to the parties’ contract under Section 9(a) of the
Act until its expiration (GC Exh. 10).
By letter dated June 2, the Employer reaffirmed that it has
withdrawn recognition of the Union based on evidence submit-
ted by a majority of the bargaining unit and further indicated
that it was privileged to repudiate the parties’ collective-
bargaining agreement based on Section 8(f) of the Act (GC
Exh. 11).
Discussion
In Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), the Board held that an employer must show a union’s
actual loss of majority support in order to lawfully withdraw
recognition. That decision, however, was limited to cases
where there have been no unfair labor practices committed that
tend to undermine employees’ support for unions. The Board
went on to note that it continues to adhere to its well-
established policy that employers may not withdraw recogni-
tion in a context of serious unremedied unfair labor practices
tending to cause employees to become disaffected from the
union nor can it rely on any expression of disaffection by its
employees which is attributable to its undermining support for
the union.
Applying those principles here, I find that the Respondent
was not privileged to withdraw recognition in the subject case
due to the unremedied unfair labor practices that I have found
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
violative of the Act prior to the withdrawal of recognition and
repudiation of the parties’ collective-bargaining agreement.
Moreover, for additional reasons, the Board has held in Preci-
sion Striping, Inc., 284 NLRB 1110 (1987), that regardless of
whether the parties’ collective-bargaining agreement may have
been a 9(a) or 8(f) relationship, an employer is not free to unilat-
erally repudiate an existing agreement with an incumbent union.
Here, although I found that the relationship between the parties is
governed by Section 9(a) rather then Section 8(f) of the Act, the
principle governs in either situation that the Respondent was not
privileged to withdraw recognition or repudiate the parties’ exist-
ing collective-bargaining agreements that were in full force and
effect on June 2 and 3 (GC Exhs. 4 and 6).
Under those circumstances, in agreement with the General
Counsel, Section 8(a)(1) and (5) of the Act has been violated as
alleged in paragraph 12 of the complaint. Therefore, the im-
plementation of new terms and conditions of employment in-
cluding wage rates, pension, and health benefits among other
things without notice to or bargaining with the Union with re-
spect to this conduct or the effects of the conduct and without
the Union’s consent is violative of the Act. Accordingly, the
Respondent must make employees whole for their unlawful
actions.5
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gating an employee regarding the employee’s union sympathy
and activity, threatening employees with loss of employment
and threatening employees that it might go nonunion.
4. Respondent violated Section 8(a)(1) and (3) of the Act
when it stopped assigning work to employee Tim Robertson
and constructively discharged him on June 16.
5. Respondent violated Section 8(a)(1) and (5) of the Act
when it withdrew its recognition of the Union as the exclusive
collective-bargaining representative of the unit and repudiated
the parties’ existing collective-bargaining agreement. It further
violated Section 8(a)(1) and (5) of the Act when it instituted
new terms and conditions of employment including wage rates
and pension and health benefits among other things, without
notice to or bargaining with the Union with respect to this con-
duct or the effects of the conduct and without the Union’s con-
sent.

5 Jennifer Buettner, the third-party administrator for benefits under
the parties’ existing collective-bargaining agreement (GC Exh. 6, art.
VI), credibly testified that the last payment made by the Respondent to
the fringe benefit funds occurred on June 12, reflective of payments
through May 2009.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Specifically, having found that the Respondent has violated
Section 8(a)(1) and (3) of the Act by constructively discharging
Tim Robertson on June 16, 2009, I shall order the Respondent
to offer Robertson full reinstatement to his former job or, if that
job no longer exists to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed. Additionally, the Respondent shall make
Robertson whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). The Respondent
shall also be required to remove from its files any and all refer-
ences to the unlawful discharge of Tim Robertson, and to notify
him in writing that this has been done and that the unlawful
discharge will not be used against him in any way.
Further, having found that the Respondent violated Section
8(a)(1) and (5) of the Act by failing to continue in effect all the
terms and conditions of their existing collective-bargaining
agreement by withdrawing recognition from the Union on June
2, 2009, and unilaterally implementing wage rates and other
terms and conditions of employment on June 3, 2009, inconsis-
tent with the terms of the existing Agreement, I shall order the
Respondent to recognize and bargain with the Union, rescind
the unilateral changes, restore the status quo ante and make the
unit employees whole for any loss of earnings and other bene-
fits attributable to its unlawful conduct. Backpay shall be com-
puted in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, supra.
Finally, having found that the Respondent violated Section
8(a)(1) and (5) of the Act by failing to continue in effect all the
terms and conditions of their existing collective-bargaining
agreement by failing, since June 1, 2009, to make the contrac-
tually required contributions to the Union’s fringe benefit funds
set forth in article VI of their Agreement, I shall order the Re-
spondent to make all required benefit fund contributions since
June 1, 2009, including any additional amounts applicable to
such funds as set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 fn 7 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensuing from
the Respondent’s failure to make the required contributions to
the funds, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
Such amounts are to be computed in the manner set forth in
Ogle Protection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]