Superior Electric Company

National Labor Relations Board - Administrative Judge Opinions

Jun 29, 2007

07-CA-049715 (N.L.R.B. Jun. 29, 2007)

JD–43–07
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SUPERIOR ELECTRIC COMPANY
OF GREATER DETROIT,
and Case 7–CA–49715
LOCAL 252, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL–CIO.
Mary Beth Foy, Esq.,
of Detroit, Michigan, for the General Counsel
Gary P. King, Esq. (Keller Thoma, P.C.),
of Detroit, Michigan, for the Respondent
Paul Gallagher, Esq. (Gallagher & Gallagher, PLC),
of Ann Arbor, Michigan, for the Charging Party
DECISION
Statement of the Case
DAVID I. GOLDMAN, Administrative Law Judge. Superior Electric of Greater Detroit
(Superior Electric) performs electrical contracting services in the greater Detroit area and—ever
so occasionally—within Ann Arbor and other areas covered by the current and past Inside
Wireman bargaining agreements between Local 252 of the International Brotherhood of
Electrical Workers (Local 252 or Union) and the Ann Arbor Division, Michigan Chapter, National
Electrical Contractors Association, Inc. (Association). In 1992, Superior Electric signed a Letter
of Assent agreeing to abide by the current and future Inside Wireman agreements and
authorizing the Association to represent it for collective-bargaining purposes in matters
pertaining to the Inside Wireman agreements. By its terms, the Letter of Assent provided that it
would remain in effect subject to termination upon written notice provided to the Association and
Local 252 at least 150 days prior to the anniversary date of the applicable Inside Wireman
agreement. After agreeing to the Letter of Assent in 1992, Superior Electric thereafter
performed work infrequently within the jurisdiction covered by the Inside Wireman agreement.
On August 11, 2006, Local 252 filed an unfair labor practice charge with the Regional
Office of the National Labor Relations Board (Board) alleging that on or about February 16,
2006, Superior Electric repudiated its obligations under the then current 2004 Inside Wireman
agreement, which, by its terms, was effective from June 1, 2004, to June 1, 2007. On
December 22, 2006, the General Counsel of the Board issued a complaint against Superior
Electric alleging that since about February 15, 2006, Superior Electric has refused to comply
with its collective-bargaining obligations and repudiated these obligations in violation of Section
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8(a)(5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(5).1 Superior Electric filed
a timely answer denying any violation of the Act. The case was tried before me in Detroit,
Michigan, on April 24, 2007. Essentially, Respondent concedes that in February 2006 it refused
to abide by the 2004 Inside Wireman agreement while performing a job within the jurisdiction
covered by the agreement. The substance of Respondent’s defense is its claim that it
repudiated its obligations under the Letter of Assent and a predecessor Inside Wireman
agreement in August 2000 and, therefore, that prosecution of the complaint is barred by the
statute of limitations governing unfair labor practices set forth in section 10(b) of the Act, 29
U.S.C. § 160(b).
On the entire record, including my observation of the demeanor of the witnesses and
other indicia of credibility, and after considering the briefs filed by the parties, I make the
following findings of fact, conclusions, and recommended order.
FINDINGS OF FACT
I. JURISDICTION
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. Respondent further admits and I find that
Charging Party Local 252 is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s February 2006 Repudiation of the Inside Wireman Agreement
The incident that led to the charge and complaint in this case is not in material dispute.
Jim Burns is a business agent for Local 252. His duties include monitoring construction projects
that fall within the geographic location covered by the Inside Wireman agreement. Employers
bound by the agreement are required, when working within the jurisdiction, to utilize the Local
as the referral source for electricians (subject to exhaustion of the Local’s registration list) and
pay wages and benefits as outlined in the Inside Wireman agreement.
Burns testified that he learned from an internet subscription service—a “dodge report”—
of a job coming up at the Briarwood Mall in Ann Arbor that required electrical work covered by
the Inside Wireman’s agreement. On Friday, February 10, 2006, Burns visited the job and
asked the project superintendent if he had selected an electrical contractor for the job. The
project superintendent indicated to Burns that he had just missed the contractor and that it was
Superior Electric. He told Burns that the electrical contractor would be returning next week.
Based on this, the following Monday, February 13, 2006, Burns called Superior Electric and
spoke with Stuart Weisblatt, who is the president and owner of Superior Electric. Burns told
Weisblatt that he had been out to the project at the Briarwood Mall on Friday and asked if
Superior Electric was going to be doing the electrical work there. Weisblatt indicated that he did
not yet know if Superior Electric had the project. The next day, Burns went to the Briarwood
Mall site, found that construction had started, and saw two electricians from Superior Electric
working there. Burns discussed the project with the electricians, their rates of pay, and the
expected duration of the work. He knew that the electricians were not Local 252-referred
employees. The next day, February 15, Burns called Weisblatt, relayed his experience the day
before, and learned from Weisblatt that he intended to use “his two guys, that he didn’t need

1The complaint also alleged a derivative violation of Sec. 8(a)(1) of the Act.
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any from Local 252.” Burns told Weisblatt that this was a problem and he would have to consult
with his boss at Local 252. Weisblatt complained that “the last guys you sent me . . . weren't
any good, and . . . they were non-productive, they cost him money, and they made mistakes.”
Weisblatt stuck to his position that he was only going to use the two nonunion employees.
After this conversation, Burns reported the situation to Ron Motzinger, the Assistant
Business Manager for Local 252. Motzinger volunteered to call Weisblatt.2 He received a
response from Weisblatt similar to that reported by Burns. Weisblatt told Motzinger he was not
going to use Local 252 employees on the Briarwood Mall job. Weisblatt made some vague
references about not wanting “trouble” and, just as vaguely, threatened that “if you guys cause
any trouble for me . . . you won’t work at Briarwood Mall again.” Motzinger “reminded him that
we have a—you know, an agreement with him, a collective bargaining agreement, and,
basically, he said he wasn't going to honor it.” Motzinger told Weisblatt that “I expected him to
honor the collective bargaining agreement, and we’d probably have to file charges, and I think
he said, ‘Do what you have to do.’"
Although less detailed in his recollection, and offering very brief testimony with regard to
the February 2006 interaction with the Union, Weisblatt essentially confirmed the testimony of
Burns and Motzinger, and I credit Burns and Motzinger’s detailed account of their testimony, but
I believe that Weisblatt’s testimony added a couple of points that are of some relevance.3
Weisblatt testified that “I think I referred to the letter of assent and said it was terminated back in
2000, at U of M [University of Michigan].” Weisblatt’s reference to the “U of M” job and
termination of the Letter of Assent was directed to the last work that Superior Electric performed
using Local 252-referred employees. As discussed infra, it is the correspondence and
conversations regarding that job in August 2000 on which Respondent bases its statute of
limitations defense. I believe Weisblatt mentioned these points in his conversations with the
Union in February 2006.4
The Union did file charges against Superior Electric. Immediately, it filed a grievance
with the Association alleging violations by Superior Electric for violations of article II, section
2.09, and article III, section 3.02 of the Inside Wireman Agreement. An Association-Local 252
labor-management hearing on the grievance was scheduled for April 17, 2006. Superior
Electric failed to attend. The grievance was resolved in favor of Local 252. In addition, in
August 2006, Local 252 filed an unfair labor practice charge over the February 2006 incident.

2At trial Motzinger recalled a “cordial” past relationship with Weisblatt and testified that this
prompted him to suggest to Burns that he contact Weisblatt.
3Weisblatt testified very briefly regarding these conversations and, in fact, did not distinguish
the conversations or testify that there were two calls.
4Although not testified to by Burns or Motzinger, Weisblatt’s comments are plausible, indeed
likely in context. Thus, Burns testified that during their conversation Weisblatt complained that
“the last guys you sent me . . . weren't any good, and . . . they were non-productive, they cost
him money, and they made mistakes.” This was clearly a reference to the University of
Michigan job from August 2000. On cross-examination Motzinger first denied that Weisblatt told
him in their February 2006 conversation that there was no valid Letter of Assent, but when
confronted with just such a statement in his pretrial affidavit indicated that he would amend his
testimony to say that he did not presently recall that the statement had been made. I take no
adverse inference regarding Motzinger’s overall credibility from this, but it suggests to me that
on this point Weisblatt’s testimony is the more accurate.
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The uncontradicted testimony of Association Representative Michael Crawford was that
the Association has never received a notice of termination of the Letter of Assent from Superior
Electric. The evidence also shows that as of February 14, 2006, the first known date of
Respondent’s failure and refusal to follow the Inside Wireman agreement in work at Briarwood
Mall, the Respondent had never taken steps to terminate the 2001 or 2004 Inside Wireman
agreements that were the successor agreements to the 1988 Inside Wireman agreement in
effect between June 1, 1988 and May 31, 2001.5 The evidence is also undisputed that Superior
Electric continued its work at the Briarwood Mall job without the use of union-referred
employees and without abiding by the terms of the Inside Wireman agreement. Many of those
terms, including of course, pay and fringe benefits, are mandatory subjects of bargaining, and
hence Respondent’s unilateral repudiation of such provisions during a contract term is a
violation of Section 8(a)(5). See Rapid Fur Dressing, 278 NLRB 905 (1986). Absent
acceptance of Respondent’s 10(b) defense, its conduct constitutes a straightforward case of
repudiation of its collectively bargained obligations under the Inside Wireman agreement and,
accordingly, a violation of Section 8(a)(1) and (5) of the Act.6
B. Respondent’s 10(b) Defense
In Respondent’s view, the outcome of this case turns on an incident that occurred six
years (and two labor agreements) prior to the filing of the charge in this case. Respondent
contends that the Government’s case is time barred based on its view that it repudiated
(admittedly unlawfully) the Inside Wireman agreement and the Letter of Assent in August 2000,
and that the Union was, or should have been, aware of this repudiation when it occurred.
In mid-August 2000, Motzinger called Weisblatt after the Union received a “tip” from an
employee that Respondent was beginning a job at the University of Michigan’s bus garage in
Ann Arbor. They discussed the job and after the conversation Motzinger “scrambled” to get
approximately eight Local 252 employees to the worksite the next day, probably Saturday
August 18. The Local 252 employees worked a little over a week on the project. Layoff notices
submitted by Respondent (R. Exh. 5) show that at least six of the Local 252 employees were
laid off as of August 26 due to a “[r]eduction in workforce.”
The project was completed by September 1, however, a few days before that, by letter
dated August 28, 2000, Weisblatt wrote to Motzinger complaining about the attitude of the Local
252 supplied employees and accusing these employees of damaging conductors used in the
job. His letter concluded:
The relationship with you and you[r] organization can only continue to our
mutual best interests if we use only our people and pay you the appropriate
assessments.
We agree to pay into the National Electrical Benefit Fund, both Labor
Management Cooperation Funds and the two training Funds.
The vacation and health and welfare monies will be managed by our own
organization.

5Although no charge was filed, it is undisputed that Respondent’s failure to comply with the
1988 Inside Wireman agreement in 2000 was neither lawful (Tr. 27) nor in accordance with the
termination provisions of the Letter of Assent or Inside Wireman agreement.
6An employer who violates Sec. 8(a)(5) derivatively violates Sec. 8(a)(1). ABF Freight
System, 325 NLRB 546 fn. 3 (1998).
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Unless we can come to terms along these guidelines, let this letter serv[e]
as our Notice of Termination of our Agreement defined by our Letter of Assent.
When Motzinger received Weisblatt’s letter, he investigated the claims that Local 252
employees damaged the conductors. According to Weisblatt, “within a couple of days of the
letter” Motzinger telephoned him.
At this point, each parties’ account of events diverges. Motzinger recalled that in the phone
call prompted by his receipt of the letter Weisblatt told him, “I'll stay union. I'm not going to
renege on my letter of assent. I'm going to stay union, but I've got to finish the job with my own
employees." Motzinger testified that he acceded to Weisblatt’s demand and orally agreed to the
terms set forth in Weisblatt’s letter. Motzinger explained that he recognized that the job was
“wrapping up” and that “there would only be loose ends to tie up, anyway, and not a lot of other
work . . . [s]o I basically agreed to his terms and we—he was going to stay union, and we went
our separate ways.” Motzinger explained his reasoning:
My goal—of course, he was going to stay a union contractor, and my goal was to
keep as many members working as long as I could. A lot of times, the way jobs
wind down, there'll be different tasks that people are working on, and they will lay
guys off at different days. Sometimes, they'll lay a guy off on Monday and they
might lay off a different guy on a Tuesday or a Wednesday. So I wasn't sure if
anybody stayed on from the union after that date, but it would have only been a
couple days if that was, after that conversation.
In fact, as discussed above, Motzinger was correct that the project was “wrapping up.”
At least six of the Local 252 employees had already been laid off for two days by the time
Weisblatt sent his letter. The record is unclear, but there is no clear evidence that any Local
252 employees worked after August 26.7
Weisblatt recalled the conversation differently. He testified to an initially friendly
discussion that became “heated” when it became clear that “no way was [Motzinger] going to
give in to the terms of my letter.” Weisblatt testified that the call ended when Weisblatt “hung up
on [Motzinger] while he was still talking.”8

Here, the parties’ divergent narratives merge again, at least to a certain extent. There is
agreement—or at least no dispute—that union employees did not work again on the University
of Michigan project. There is also no dispute that the job they had been working on—called
“phase one” by Weisblatt”—was completed by September 1, just 4 days after the August 28
letter was sent and within 2 days after the disputed telephone conversation. A second phase,
which began September 18, involved work on the parking garage next door and continued
through mid-December. By all evidence the Union was not aware of phase two, and believed

7Thus, Respondent’s assertion that union-supplied employees were laid off
contemporaneously with Weisblatt’s August 28 letter is unsubstantiated and contradicted as to
six of the employees. See R. Exh. 5. I note that R. Exh. 13, which I rejected at trial because of
its unreliability and potential incompleteness, does not, for what it is worth, identify any union-
supplied employees working after August 26.
8At trial, the parties expended significant effort to trying to offer evidence supporting their
principal witness’ testimony on whether a deal was struck between Motzinger and Weisblatt.
Based on my resolution of this case, I need not and do not resolve that dispute.
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that Superior Electric’s work at the university was limited to the initial job that ended with phase
one. After the August 2000 incident, Weisblatt did not recall further discussion with any Local
252 officials until February 2006. On the other hand, Motzinger’s notes corroborate testimony
that he and Motzinger had a single discussion on October 26, 2001, regarding a job performed
by Superior Electric within the jurisdiction in Ann Arbor. According to Motzinger, based on
Weisblatt’s representation as to the very limited nature of the job, the Union agreed that the
labor agreement did not need to apply to the job. There is no indication that any discussion of
repudiation or a refusal to abide by the agreement was a feature of these 2001 discussions. In
any event, other than the one October 2001 discussion, Motzinger and Weisblatt agree that
there was no other interaction between the parties until the February 2006 incident.9
In asserting its 10(b) defense, Respondent urges me to credit Weisblatt’s version of the
late August 2000 conversation. Respondent contends that Motzinger’s failure to agree with the
terms outlined in what it refers to as Weisblatt’s “letter of repudiation” left extant the letter and its
notification of termination. This, asserts Respondent, demonstrates a manifest repudiation of
the relationship and the Inside Wireman agreement that set the statute of limitations running
and renders any claim regarding Respondent’s refusal to abide by the Letter of Assent or the
Inside Wireman agreement in February 2006 time barred many times over.
Section 10(b) of the Act provides that "no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filling of the charge." 29 U.S.C. §
160(b). The Supreme Court has explained that the policies underlying this section of the Act
are intended “to bar litigation over past events ‘after records have been destroyed, witnesses
have gone elsewhere, and recollections of the events in question have become dim and
confused,’ H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, fn. 10 and of course to stabilize
existing bargaining relationships.” Machinists Local 1424 v. NLRB, 362 U.S. 411, 419 (1960).
The Board has explained that “[t]he intended purpose of this proviso is that, in the absence of a
properly served charge on file, a party is assured that on any given day its liability under the Act
is extinguished for any activities occurring more than 6 months before.” Chemung Contracting
Corp., 291 NLRB 773 (1988).
It is true, of course, that “[w]hen the alleged unfair labor practice may be characterized
as a contract repudiation, the unfair labor practice occurs at the moment of the repudiation. . . .
‘Indeed, it is at the moment of that repudiation that the unfair labor practice—the refusal to
bargain—fundamentally occurs.’” St. Barnabas Medical Center, 343 NLRB 1125, 1127 (2004)
(quoting A & L Underground, 302 NLRB 467, 469 (1991)). However, it is also true that when it
adopted this standard in A & L Underground, 302 NLRB at 469, the Board
retain[ed] an important protection for the victims of unlawful contract
repudiations, as in the case of those injured by an unfair labor practice. We

9Based on Motzinger’s notes, which I do not believe to have been fabricated, and based on
his demeanor as he convincingly recalled this conversation, I credit his testimony that a
conversation occurred on October 26, 2001, notwithstanding that Motzinger did not recall the
conversation until after coming across his notes regarding the call. Weisblatt firmly denied
initiating contact with Motzinger in October 2001, but as to whether the conversation occurred at
all, Weisblatt’s only testimony, somewhat indirectly, was that the first conversation he could
remember with the Union after August 2000 was in February 2006. Weisblatt’s memory was not
good on a number of incidents involving the Union. I believe the October 2001 conversation
with Motzinger occurred. However, I do not reach (and given my decision I need not reach) any
conclusion on the issue, hotly disputed at trial, regarding who initiated the call.
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adhere to the Board's long-settled rule that the 10(b) period commences only
when a party has clear and unequivocal notice of a violation of the Act. Further,
as is the case with the 10(b) defense generally, the burden of showing that the
charging party was on clear and unequivocal notice of the violation rests on the
respondent [citations omitted].
In A & L Underground, the Board overruled prior case law that had applied a “continuing
violation” approach to find that a charge alleging repudiation of a collective-bargaining
agreement was timely as long as it was filed during the term of the agreement. A & L
Underground, supra at fn. 4. While holding parties aggrieved by a repudiation to the new more
stringent rule requiring that the charge be filed within six months of the act of repudiation, the
Board majority in A & L Underground emphasized that its holding applied only in cases where
the notice of repudiation was unequivocal. A&L Underground, supra at 467 (union was charged
with notice of the employer’s repudiation based on the employer’s letter to the union stating
explicitly that “any agreements that it might have executed with the Union had ‘long since
terminated’ and that the Respondent ‘repudiate[d] any and all Section 8(f) prehire agreements’
with the Union ‘effective immediately’”). See also St. Barnabas, supra (case time barred where
employer consistently refused to apply collective-bargaining agreement to disputed position
prior to the 10(b) period). The requirement that the notice of the repudiation be unequivocal
was an integral part of the Board’s reasoning. Indeed, the Board majority in A & L Underground
stressed this facet of its holding when it rejected concerns of the dissent that the new rule would
provoke extensive litigation “regarding who said what to whom” and leave doubt as to whether
the actions of the repudiating party required the immediate filing of a charge. A & L
Underground, supra at 472–473. The majority explained: “Thus, by requiring that a party
promptly file a contract repudiation charge, we are not placing any hardship on the party
challenging the repudiation. The only parties against whom the bar might be a hardship—those
whose delay in filing is a consequence of conflicting signals or otherwise ambiguous conduct by
the other party—are not barred by our holding.” A & L Underground, 302 NLRB at 469.
Accordingly, the requirement that in order to trigger 10(b) a repudiation must be unequivocal
and, moreover, unconditional, is as much a part of Board precedent as the rule that a clear and
unequivocal repudiation starts the 10(b) period running. Stage Employees IATSE Local 659
(Paramount Pictures), 276 NLRB 881, 882 (1985) (rule that Sec. 10(b) begins to run upon date
of alleged unlawful act rather than on date its consequences become effective is limited “to
unconditional and unequivocal decisions or actions").
Given the limits set by the Board on the assertion of Section 10(b) in repudiation cases,
the problem with Respondent’s theory of the case is that—accepting, arguendo, Respondent’s
version of events—Weisblatt’s letter and the parties failure to agree on it, do not constitute
unconditional or unequivocal notice of an unlawful midterm repudiation of the labor agreement
or, for that matter, the Letter of Assent and the Association’s right to enter into subsequent
Inside Wireman agreements on Respondent’s behalf.
First of all, the threat to terminate was, on its face, not a “final [unconditional] adverse
employment decision.” Stage Employees IATSE Local 659, supra at 882 (Board’s bracketing)
(quoting Postal Service Marina Center, 271 NLRB 397, 400 (1984). The threat to terminate was
expressly conditioned “only upon the happening of a certain [future] event” (Stage Employees
IATSE Local 659, supra at 882) (bracketing added), i.e., the subsequent failure of the Union to
agree to a modified procedure. That sparked the telephone call, the gist of which is disputed by
the parties, but even by Weisblatt’s account, ended without express resolution. Notably, as
emphasized below, to the extent Weisblatt’s letter can be understood as a threat to terminate
the Letter of Assent, Respondent never took the steps necessary to terminate the Letter of
Assent, which required notice to the Association of such intent. This inaction, in the face of
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Weisblatt’s letter, constitutes further equivocation. See Bryant & Stratton Business Institute,
321 NLRB 1007, 1024 (1996) (subsequent nonaction with regard to announced change renders
employer actions equivocal, and therefore Sec. 10(b) does not begin).
Second, and even more telling than the lack of unconditionality, the letter was not an
unequivocal threat to take action that was unlawful. Indeed, the letter is most plausibly read as
Superior Electric serving notice of a lawful termination of the agreement, as provided in the
labor agreement and Letter of Assent, upon the expiration of the agreement on May 31, 2001.10
In this regard, both the Letter of Assent and the Inside Wireman agreement have
provisions for termination of the relationship and agreement, and both require significant
advance notice to the Union and the Association. The Letter of Assent provides that,
This authorization, in compliance with the current approved labor agreement,
shall become effective on the 23rd day of March, 1992. It shall remain in effect
until terminated by the undersigned employer giving written notice to the
[Association] and to the Local Union at least one hundred fifty (150) days prior to
the then current anniversary date of the applicable approved labor agreement.
The 1998 Inside Wireman agreement in effect at the time, provided that,
This Agreement shall take effect June 1, 1998, and shall remain in effect
through May 31, 2001, unless otherwise specifically provided for herein. It shall
continue in effect from year to year thereafter from June 1, until June 1 of each
year, unless changed or terminated in the way later provided herein.
Either party or an Employer withdrawing representation from the
[Association] or not represented by the [Association], desiring to change or
terminate this Agreement must provide written notification at least 90 days prior
to the expiration date of the Agreement or any anniversary date occurring
thereafter.
There is nothing in Weisblatt’s letter on which to base the assumption that—unequivocally—
Superior Electric was unlawfully repudiating the agreement midterm or unlawfully repudiating
the Letter of Assent. To the contrary, the letter invokes and purports to apply termination
provisions for the agreement set forth in the Letter of Assent. Weisblatt’s letter states that,
“absent an agreement as proposed, let this letter serv[e] as our Notice of Termination of our
Agreement defined by our letter of Assent.” As set forth above, the Inside Wireman Agreement
and the Letter of Assent delineate a method of providing advance notice to the Association and
to the Local Union in order to terminate the agreement on a yearly basis and to terminate the
Association’s bargaining authorization set forth in the Letter of Assent. Such termination, if
undertaken in accordance with the Letter of Assent and the 2001 Inside Wireman agreement,
would be effective at its earliest on May 31, 2001, the date of the agreement’s expiration. Most

10The Inside Wireman agreement is an “8(f) agreement,” provided for by Sec, 8(f) of the
Act, which authorizes unions and employers in the construction industry to enter into collective-
bargaining agreements without the union having to establish that it has the support of a majority
of the employees in the covered unit. An 8(f) relationship may be terminated by either the union
or the employer upon the expiration of their collective-bargaining agreement. However, a party
may not lawfully repudiate an 8(f) agreement during its term. John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988).
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plausibly, Weisblatt’s letter can be understood to have served notice under the contract to Local
252 that it was terminating the agreement in accordance with the Letter of Assent. It did not
indicate, much less unequivocally indicate, an intent to unlawfully repudiate the collective-
bargaining agreement prior to the expiration date of the agreement.11
In reaching this conclusion, I recognize that while a repudiation must be “clear and
unequivocal” the “Board has found that a contract repudiation need not be an express, written
repudiation but instead can be manifested by the respondent’s conduct.” St. Barnabas, supra at
1129; Neosho Construction Co., 305 NLRB 100, 102–103 (1991). However, under the
circumstances of this case, the fact that Superior Electric operated after August 2000 without
abiding by the Inside Wireman agreement does not demonstrate that the Union “knew or should
have known” that the Respondent had repudiated the labor agreement.12 In a traditional 9(a)
relationship (and even many 8(f)) relationships), the represented employees come to work
regularly for the employer. The Union cannot claim ignorance for years of conduct by the
employer that it must have known about, or should have known about. This case involves an
Employer and a union with an 8(f) relationship so shallow that over the course of 15 years they
can count on one hand the number of interactions they have had. Although the evidence
suggests he is wrong, Weisblatt—who has been president of Superior Electric since 1970—
could not remember having any dealings with Local 252 prior to 2000, even though it is
undisputed that the Respondent had been bound by the Letter of Assent since 1992. Indeed,
he claimed that until he was shown the Letter of Assent by the Union in conjunction with the
University of Michigan contract in 2000 he did not even know about his company’s execution of
the Letter of Assent turning over collective-bargaining rights to the Association. In fact, the
evidence shows that, contrary to Weisblatt’s recollection, the parties had at least one interaction
in 1999, and his testimony also suggests that he worked within the jurisdiction without the
Union’s knowledge on an unknown number of times. The point, however, is that the context
here is one in which the parties went years without any interactions at all. In this context, where
Superior Electric works rarely within the Union’s jurisdiction, and even then manages to avoid
detection by the Union in some of those instances, it is not appropriate to charge the Union with
knowledge that Respondent was flouting the labor agreement based simply on the passage of
time. In every instance that it was shown that the Union knew of Respondent working within the
jurisdiction the Union confronted Weisblatt, arranged or accepted a solution in that instance, or,
in the final incident, filed a grievance under the labor agreement and a charge with the Board.
But none of these incidents indicate that the Union acted “with impunity [to] ignore an employer
or a unit . . . . and then rely on its ignorance of events occurring at the shop to argue that it was
not on notice of an employer’s unilateral changes.” John Morrell & Co., 304 NLRB at 899

11In addition, the letter is equivocal in another way. While Respondent takes the position
that Weisblatt’s letter notified the Union of its intent to repudiate the Inside Wireman agreement
and the Letter of Assent, the letter is less than pellucid about what it is terminating. There is an
inscrutability to a letter that states, “let this letter serv[e] as our Notice of Termination of our
Agreement defined by our letter of Assent.” Whether that is a notice of termination of the Inside
Wireman agreement and the Letter of Assent (as Respondent asserts), or just the current
agreement, is not, at all, unequivocal.
12Moeller Bros. Body Shop, 306 NLRB 191, 193 (1992) ("While a union is not required to , , ,
police its contracts aggressively in order to meet the reasonable diligence standard, it cannot
with impunity ignore an employer or a unit . . . and then rely on its ignorance of events occurring
at the shop to argue that it was not on notice of an employer's unilateral changes"); John Morrell
& Co., 304 NLRB 896, 899 (1991) (10(b) period begins to run when "aggrieved party knows or
should know that his statutory rights have been violated").
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(quoted in St. Barnabus, supra). Based on Weisblatt’s testimony, it is obvious that during
Superior Electric’s few forays into the Union’s jurisdiction it made no effort to alert the Union of
its presence and did not concern itself with the Union unless and until “caught” by the Union.
The reasonable diligence required of a union to avoid being charged with constructive
knowledge of an unfair labor practice does not require hunting for an employer. See, Neosho
Construction Co., supra at 102-103 (1991) (“repudiation by conduct” requires noncompliance
sufficiently “bald” to put the union on notice of intent to repudiate); Positive Electrical
Enterprises, Inc., 345 NLRB No. 67, slip op. at 6-7 (2005) (failure to honor 8(f) agreement over
many years does not support 10(b) defense where small contractor, 1 of 75 bound by
agreement, took no steps to notify union when it worked nonunion in jurisdiction covered by
agreement).13
Finally, Respondent’s 10(b) defense to its February 2006 actions must fail for another related,
but analytically independent reason. As discussed above, in the aftermath of the August 2000
phone call between Weisblatt and Motzinger, and continuing through to February 2006,
Respondent did not, in fact, provide notice to the Association that it was terminating the Letter of
Assent. This is significant because, as the Board recently affirmed, interpreting essentially
identical agreements, in addition to notifying the union of intent to terminate the contract, in
order to withdraw future bargaining rights from the bargaining association an employer must
notify the association that it is terminating those bargaining rights. Rome Electrical Systems,
349 NLRB No. 72 (2007). See also Cedar Valley Corp., 302 NLRB 823, 830 (1991), enfd. 977
F.2d 1211 (8th Cir. 1992), cert. denied 508 U.S. 907 (1993). This means that, apart from the
issue of whether it repudiated the 1998 Inside Wireman agreement in August 2000, Respondent
was bound, by operation of law, to the 2001 and 2004 successor Inside Wiremen agreements
subsequently negotiated by the Association. Had Respondent provided timely notice to the
Association of a revocation of the Letter of Assent, as of June 1, 2001, the anniversary date
(and it so happens, the day after the expiration date) of the existing agreement, the Letter of
Assent would no longer continue to authorize the Association to bargain on behalf of Superior
Electric. But Superior Electric never took that step. As explained in Cedar Valley Corp., 302
NLRB at 830:
When the 8(f) agreement expires and the employer has served timely
notice of contract termination, nevertheless, the Board has held the designation
of bargaining authority continues. That is, the Board has held that an employer is
bound to successive agreements negotiated by the association until the
employer withdraws bargaining authority from the association in a timely manner.

13In fact the Union did devote resources to searching the jurisdiction for contractors
obligated to follow the Inside Wireman agreement. Approximately 150 employers were subject
to the agreement. Burns testified to the methods he used to monitor contractor compliance with
the agreement. They had a hit or miss quality to it. Burns relied on third party subscription
services, newspaper reports, and on a Local 252 retiree who made the rounds of town building
permit offices copying building permit information in the local area. There is no evidence that
the Union was anything but diligent in its efforts to track contractor activity. Yet, there is no
denying that these methods may have enabled contractors who worked infrequently in the
jurisdiction the ability to work without detection by the Union. There is no evidence that the
Union ignored contract compliance or failed to exercise reasonable diligence to track
contractors.
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Respondent was legally bound by the 2004 agreement in effect when the Union
confronted Respondent over the Briarwood Mall job. Given that, and given that every event
relied upon by the Government to prove the alleged unfair labor practice occurred within six
months of the filing of the Union’s charge, I cannot find Respondent’s claim that it unequivocally
repudiated the contract six years earlier is of any moment. Putting aside the question of
whether Respondent’s conduct in August 2000 was immediately actionable and started the
statute of limitations running as to that violation, by June 1, 2001, Respondent had—based on
its own inaction—become contractually bound to a new 2001 successor Inside Wireman
agreement and in 2004 to still another one. This is not, I would stress, based on a “continuing
violation theory,” rejected in A & L Underground, under which a separate violation of a contract
within six months of a charge is timely notwithstanding a prior repudiation of that contract. That
a finding of a separate violation arising under the same contract that was previously repudiated
is foreclosed by A & L Underground, does not mean an employer is protected by 10(b) from
prosecution for violations of the Act based on contracts effective and effectively entered into
after—in this case four years after—an unlawful repudiation of a prior agreement. See Cedar
Valley Corp., 302 NLRB at 823 (assuming there was unlawful repudiation during term of a
contract it was ineffective to invalidate future contracts where party bound itself to comply with
successor agreements). That Superior Electric’s relationship with the Association, and hence
obligation to successor Inside Wireman agreements, was structured to renew through inaction,
i.e., absent specified steps that Superior Electric admittedly did not take, is an arrangement of
its own undertaking. In asserting its 10(b) defense based on unlawful action it took in 2000 to
protect it from a contractual arrangements effective in 2004 Respondent is asking too much of a
regulatory regime committed to allowing employers and unions to negotiate their own
contractual arrangements.
CONCLUSIONS OF LAW
1. Respondent, Superior Electric of Greater Detroit, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Charging Party, Local 252, International Brotherhood of Electrical Workers, AFL–CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has, at all times material, authorized the Ann Arbor Division,
Michigan Chapter, National Electrical Contractors Association, Inc. (Association) as its
collective-bargaining representative for all purposes set forth in a Letter of Assent
executed by Respondent on March 23, 1992.
4. The 2004 Inside Wireman agreement is a collective-bargaining agreement
entered into between the Charging Party and the Association to which Respondent is
bound.
5. Charging Party, at all material times has been the limited exclusive collective
bargaining representative, based on Section 8(f) of the Act, of an appropriate unit for
such purposes as defined by Section 9(b) of the Act, composed of the employees
described as the bargaining unit in the 2004 Inside Wireman agreement.
6. By refusing to comply with the 2004 Inside Wireman agreement at all times since on
or about February 14, 2006, the Respondent has repudiated the agreement and thereby has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
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REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) by repudiating the Inside
Wireman agreement on or about February 14, 2006, Respondent shall abide by the terms of the
current Inside Wireman agreement negotiated by the Union and the Association, including hiring
provisions, and Respondent shall offer full and immediate employment to those individuals who,
on and since February 14, 2006, were denied an opportunity to work for Respondent because of
its failure and refusal to comply with the hiring provisions in the Inside Wireman agreement.
J.E. Brown Electric, 315 NLRB 620 (1994). Additionally, for the period beginning February 14,
2006, Respondent shall make whole, with interest, employees in the bargaining unit, as well as
those employees who were denied the opportunity to work, for any losses suffered as a result of
its failure to abide by the applicable Inside Wireman agreement as provided for in Williams
Pipeline Co., 315 NLRB 630 (1994). All payments to employees are to be computed in the
manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), as well as F.W. Woolworth Co., 90 NLRB 289 (1950), as appropriate,14 with interest, as
prescribed in New Horizions for the Retarded, 283 NLRB 1173 (1987).15

14The Ogle Protection formula applies in cases when the Board is remedying "a violation of
the Act which does not involve cessation of employment status or interim earnings that would in
the course of time reduce backpay." Ogle, supra at 683. The Woolworth formula is otherwise
appropriate in backpay cases. In this case, the backpay remedy may involve either type of
backpay remedy, or both (or, conceivably, neither), depending on the specifics of who is found
to have suffered losses on account of Respondent’s conduct. That determination is appropriate
for resolution in a compliance hearing. J.E. Brown Electric, 315 NLRB at 623.
15In its brief, Respondent contends that, in the event a violation is found, the remedy should
not include an award of back pay. This follows, in Respondent’s view, (1) from acceptance of
Motzinger’s testimony that he and Weisblatt struck an agreement in 2000 to permit Respondent
to use its own employees (and pay its own wages) and make only appropriate contributions to
the union benefits funds, and (2) from the assertion by Respondent that “no specific
employee(s) can be identified who actually lost wages in this case [and, therefore,] such an
award would be purely speculative.” (R. Br. at 12–13). I reject both contentions. As to the first,
my decision does not assume an agreement was reached along the lines testified to by
Motzinger. Whether Respondent can attempt to prove there was such an agreement, and that it
was intended to apply to the work performed in 2006, is an issue that, if appropriate at all, must
be pursued in a compliance hearing. I note, however, that Respondent has consistently denied
that any such agreement was reached. As to the second contention, backpay is a fundamental
component of a make-whole remedy which has long been a part of the remedy provided in
construction industry repudiation cases. See J.E. Brown Electric, 315 NLRB 620, 622–623 fn. 8
(1994). The precise determination of who (if, indeed, anyone) is entitled to backpay is properly
reserved for a compliance hearing. J.E. Brown Electric, 315 NLRB at 623 (quoting and adopting
with regard to both reinstatement and backpay remedies in 8(a)(5) cases the reasoning of Dean
General Contractors, 285 NLRB 573, 574 (1987) (“’as in other industries, reinstatement and
backpay issues in the construction industry ordinarily will be resolved by a factual inquiry during
the compliance process rather than by resorting to a presumption that may or may not
accurately reflect the realities of the employment relationship or by resorting to a shift of
evidentiary burdens from the adjudicated wrongdoer to the aggrieved employee’").
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The Respondent shall make all contractually required contributions to benefit funds that
have not been made since on or about February 14, 2006, including any additional amounts due
the plan, in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 (1979).16 The
Respondent shall also reimburse unit employees, with interest, for expenses ensuing from its
failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be computed in the
manner set forth in Ogle Protection Service, supra. The Respondent shall reimburse the Union,
with interest, for lost dues and/or assessments that should have been paid contractually but
were not paid to the Union because of the employer’s repudiation of the labor agreement, in the
manner set forth in Ogle Protection Service, supra. All interest due and owing in accordance
with this paragraph shall be computed as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Employer’s facility or wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. When the notice is issued to the Employer, it shall sign it or otherwise notify the
Region what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
The Respondent, Superior Electric Company of Greater Detroit, Detroit Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
a. Repudiating or failing and refusing to comply with the applicable Inside Wireman
Agreement.
b. Failing and refusing to recognize the Union as the limited exclusive collective-
bargaining representative for a bargaining unit of employees described in the
applicable Inside Wireman agreement.
c. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of rights guaranteed to them by Section 7 of the Act.

16To the extent that an employee has made personal contributions to a benefit or other fund
that have been accepted by the fund in lieu of the Respondent's delinquent contributions during
the period of the delinquency, the Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes
the fund.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2. Take the following affirmative action which is necessary to effectuate the
purposes of the Act
a. For the period beginning February 14, 2006, make whole, with interest,
employees in the bargaining unit, as well as those employees who were denied the opportunity
to work, for any losses suffered as a result of its failure to abide by the applicable Inside
Wireman agreement since on or about February 14, 2006, in the manner set forth in the remedy
portion of this decision.
b. Within 14 days from the date of this Order, the Respondent shall offer full
employment to those individuals who, on and since February 14, 2006, were denied an
opportunity to work for Respondent because of its failure and refusal to comply with the hiring
provisions in the applicable Inside Wireman agreements, in the manner set forth in the remedy
portion of this decision.
c. Make all contractually required contributions to benefit funds that have not been
made since on or about February 14, 2006, including any additional amounts due the plan, in
the manner described in the remedy portion of this decision.
d. Reimburse unit employees, with interest, for expenses ensuing from its failure to
make the required contributions, in the manner set forth in the remedy portion of this decision.
e. Reimburse the Union, with interest, for lost dues and/or assessments that should
have been paid contractually but were not paid to the Union because of the Employer’s
repudiation of the Inside Wireman agreement, in the manner set forth in the remedy portion of
this decision.
f. 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 designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
g. Within 14 days after service by the Region, post at its facility in Oak Hills,
Michigan, copies of the attached notice marked “Appendix."18 Copies of the notice, on forms
provided by the Regional Director for Region 7, 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. 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 Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since on or about February 14, 2006.

18If 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 National 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.”
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h. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. June 29, 2007
____________________
David I. Goldman
U.S Administrative Law Judge
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Detroit, MI
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT repudiate or fail to comply with the provisions of the applicable Inside Wireman
agreement.
WE WILL NOT refuse to recognize the Union as the limited exclusive collective-bargaining
representative for a bargaining unit of employees described in the applicable Inside Wireman
agreement.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL make whole, with interest, employees in the bargaining unit, as well as those
employees who were denied the opportunity to work, for any losses suffered as a result of our
failure to abide by the applicable Inside Wireman agreement, since on or about February 14,
2006.
WE WILL within 14 days from the date of the National Labor Relations Board’s Order offer full
employment to those individuals who, on and since February 14, 2006 were denied an
opportunity to work because our failure and refusal to comply with the hiring provisions in the
applicable Inside Wireman agreement.
WE WILL reimburse the Union, with interest, for dues we were required to withhold and transmit
under the Inside Wireman agreement.
WE WILL make all contributions to benefit plans that we were required to make under the Inside
Wireman agreement, including any additional amounts due the plan on account of our failure to
make these contributions at the time they were owed.
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WE WILL reimburse unit employees, with interest, for any expenses they have incurred
because of our failure to make required contributions to benefit plans under the Inside Wireman
agreement.

SUPERIOR ELECTRIC OF GREATER DETROIT
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.