System Electric Co., Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1987

283 N.L.R.B. 650 (N.L.R.B. 1987)

650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
System Electric Co., Inc. and International Brother-
hood ' of Electrical Workers, Local, Union No.
440. Case 21-CA-21572
1 16 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON, AND MEMBERS
BABSON AND STEPHENS_
On 12 September 1983 Administrative Law
Judge Russell L. Stevens issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
1. In the final paragraph of the discussion section
of his decision, the judge concluded that the Re-
spondent was not in the building and construction
industry as that phrase is used in the Act. We re-
verse. Paragraph 2(a) of the amended complaint al-
leges, and the answer admits, "At all times material
herein, Respondent, a California corporation, has
been engaged in the business of electrical contract-
ing in the construction industry . . . ." In addition,
the complaint as amended at the hearing alleges,
and the Respondent admits, that the appropriate
unit comprises the Respondent's employees "en-
gaged in electrical or electronic construction job
work." Nothing in the record contradicts these ad-
mitted allegations. Accordingly, we fmd that the
Respondent is "an employer engaged primarily in
the building and construction industry" within the
meaning of Section 8(f) of the Act.
2. In John Deklewa & Sons, Inc., 282 NLRB 1375
(1987), the Board overruled R.J. Smith Construction
Co., 191 NLRB 693 (1971), enf. denied sub nom.
Operating Engineers Local 150 v. NLRB, 480 F.2d
1186 (D.C. Cir. 1973), abandoned the conversion
doctrine, and modified unit scope rules in 8(f)
cases . As more fully set forth in Deklewa, supra at
slip op. 8, the Board decided to apply the follow-
ing principles in 8(f) cases.
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
283 NLRB No. 99
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
Applying Deklewa to the instant case, we con-
clude that the complaint should be dismissed. In
1975 the Respondent signed a letter- of assent-A
with the National Electrical Contractors Associa-
tion, Southern Sierra Chapter, pursuant to which it
became bound to the then-current collective-bar-
gaining agreement. By letters dated 17 December
1981 the Respondent timely and properly terminat-
ed the then-current bargaining agreement effective
as of its 31 May 1982 expiration date and revoked
NECA's authority to bargain on its behalf. No fur-
ther agreement was reached by the Respondent
with the Union. Although the Respondent admits it
was bound to successive NECA agreements from
1975 through 31 May 1982, it contends and we find
that any bargaining agreement between the Re-
spondent and the Union expired as of 31 May 1982.
Thus, under the fourth Deklewa principle quoted
above, the Union enjoyed no presumption of ma-
jority status, and the Respondent was free to repu-
diate the 8(f) bargaining relationship. The judge
concluded that the Respondent violated Section
8(a)(5) and (1) of the Act by dealing directly with
its employees and by failing to pay contractual
wages and benefits and Section 8(a)(1) by telling
job applicants that it would be a nonunion employ-
er. As the judge's conclusions turn, however, on
whether the Respondent owed bargaining or con-
tractual obligations to the Union after 31 May
1982, which under Deklewa it did not, we shall re-
verse the judge and dismiss the complaint.
ORDER
The complaint is dismissed.
Gordan A. Letter, for the General Counsel.
Steven D. Atkinson , Esq. (Atkinson, Andelson , Loya, Rudd
& Romo), of Long Beach, California , for the Respond-
ent.
Jeffrey L. Cutler, Esq. (Davis, Frommer & Jesinger), of
Los Angeles , California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Indio, California, on June 16, 1983.1
The complaint2 is based on a charge filed September 10
1 All dates hereinafter are within 1982, unless stated otherwise
2 As amended March 2, 1983, and as again amended at trial with leave
of the administrative law judge
SYSTEM ELECTRIC CO. 651
by International Brotherhood of Electrical Workers,
Local Union No. 440 (the Union). The complaint alleges
that System Electric Co ., Inc. (Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations
Act (Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs . Briefs,
which have been carefully considered , were filed on
behalf of the General Counsel and Respondent.
On the entire record, and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material Respondent , a California corpora-
tion, has been engaged in the business of electrical con-
tracting in the construction industry, and operates a facil-
ity in Cathedral City, California. During the 12-month
period following June 4, 1982, at which time Respondent
activated its operations, Respondent , in the course and
conduct of its operations , purchased and received goods
and materials valued in excess of $50,000 from suppliers
located within the State of California, each of which
purchased and received the same goods and products di-
rectly from suppliers located outside the State of Califor-
nia.
I find that Respondent is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood ' of Electrical Workers,
Local Union No . 440 is, and' at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background4
Industrial Electric Supply is a California business
wholly owned by John Gomes, who also has served as
chief negotiator for National Electrical Contractors As-
sociation, Southern Sierra Chapter (NECA). Approxi-
mately in 1975 John Gomes organized Respondent and
became its president. His son, James (Jim) Gomes, was
Respondent's vice president until March 1982. On March
10, 1975, John Gomes signed the Union's form Letter of
Assent-A, pursuant to which Respondent became bound
by a collective-bargaining Inside Wireman's Agreement
between NECA and the Union, effective June 1, 1973,
until May 31, 1975, and thereafter until terminated in ac-
cordance with the Letter of Assent-A. The agreement
had, inter alia, an exclusive hiring hall provision that has
remained the same in successive bargaining agreements
between the parties, including the one involved herein,
which was effective from June 1, 1981, through May 31,
1982. The bargaining agreements also had continuous
8 This background summary is based on stipulations of counsel, and on
credited testimony and evidence that is not in dispute.
provisions for health and welfare trust fund contributions
by Respondent, with the requirement that Respondent
submit monthly trust fund reports, whether or not any
unit employees were on the payroll.
Respondent was an inactive corporation until early in
1982 . In December 1981 Michael Gomes , who was an-
other son of John Gomes and who had been a field' su-
pervisor of Industrial Electrical Supply for several years,
decided with his family to activate Respondent. Soon
after the first of the year Michael began organizing Re-
spondent's affairs and preparing to go into operation, and
he became president of Respondent in March.
By letter dated December 17, 1981, Jim Gornes noti-
fied the Union of Respondent's termination of its collec-
tive-bargaining agreement effective May 31, 1982, when
the then-current agreement expired, and also notified the
Union that Respondent had revoked NECA's authority
to bargain for it. Finally, Respondent offered to meet
and bargain with the Union for a new contract on its
own behalf. By letter dated December 17, Jini Gomes
also notified the Association that Respondent had re-
voked its authority to bargain with the Union on behalf
of Respondent.
By letter dated March 2, Gilbert Dovey, the Union's
business manager , advised Respondent (Jim Gomes) of
the Union's intention to terminate the agreement expiring
May 31 and offered to meet and bargain for a new con-
tract.
On March 12, R. Reincke, a labor consultant for Mike
Sullivan and Associates, Inc. (Sullivan), replied to
Dovey's letter, stated that Sullivan was Respondent's ex-
clusive collective-bargaining agent, reaffirmed Respond-
ent's withdrawal from NECA, and offered to meet and
bargain with 'the Union, on behalf of Respondent, at a
mutually agreeable date. The letter shows a carbon copy
to Respondent.
On March 17 Sullivan again wrote to the Union
(Dovey), and also to Local 569, reiterated that Sullivan
was Respondent 's exclusive bargaining, representative,
and made a second request to meet and negotiate. The
lettter shows a carbor copy to Respondent.
On May 26 Leland Brand, the Union "s business agent
who replaced Dovey, wrote a letter to Respondent (Jim
Gomes), stated that the Union had received Sullivan's
letter of March 12, questioned Sullivan's representative
status, asked confirmation of that status, and offered to
meet and bargain on June 1, 3, or 4.
On May 27 Sullivan replied to the Union's letter of
May 26 to Respondent, reiterated its status as Respond-
ent's exclusive collective-bargaining representative, ques-
tioned the Union's fides in continuing to refuse to recog-
nize Sullivan's status, advised- the Union that Michael,
rather than James, was Respondent's principal officer,
and' asked for a reply to Sullivan's letter of March 17.
The letter shows a carbon copy to Respondent.
On June 11 Reincke 'wrote a letter to the Union
(Brand), enclosed a letter from Michael advising that
Sullivan was Respondent's exclusive bargaining repre-
sentative, and offered to meet and bargain with the
Union immediately on reply from the Union. The letter
shows a carbon copy to Respondent.
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On June 14 Jim Gomes replied to the Union 's letter of
May 26, and reiterated that he no longer worked for, or
represented , Respondent. '
Between March 10, 1975 , and June 4, 1982, Respond-
ent submitted monthly trust fund reports to the Union, as
required by the various collective-bargaining agreements.
As of approximately June 4 those reports were discontin-
ued, `and since that date Respondent has not made any
trust fund payments or reports , and has paid wages to
employees that ' are lower than the Union 's contract
wages.
Andrew Amento was- initiated into the Union on No-
vember 30, 1979 , approximately at the time he was em-
ployed by Industrial Electric Supply . When he became a
union member he was assigned the- rating of wireman
p.e. (pending examination). He kept that same classifica-
tion all the time '-he was a union member . In April or
May Michael called Amento, whom he had known for
some time , on the telephone and asked if he would be
interested in working for a new company Michael was
starting. Amento had been working for a nonunion com-
pany,4 and asked Michael about the new company's rela-
tionship with the Union . Amento said he assumed the
new company would be nonunion, and Michael stated
that it would not be affiliated with the Union. They
agreed to meet later , and approximately 2 weeks after
the telephone call Amento went to Respondent 's shop to
talk with Michael . They walked around in the shop, and
Michael reiterated that the shop would not be signatory
to a union contract-that it would be "a merit or open
shop." Amento - expressed his dislike of the Union, and
made it clear to Michael that he did not want to work
under a union contract . Amento said he had not signed
the Union's out-of-work book, and had not paid his dues
for some time . Michael and Amento talked about the Tat-
ter's pay, which was to be a little more than $18 per
hour . Michael said some fringe benefits later may be ar-
ranged, but there would be no pension arrangement.
Amento went to work for Respondent a few days later
at $19 per hour, which was less than the Union's con-
tract rate , and has worked for Respondent continuously
to date . Amento has had an unsatisfactory relationship
with the Union , although he paid his membership dues
through January 1-982 ,5 when he was laid off by the con-
tractor he then was working for. He did not go to the
union hall or attempt to work through the Union thereaf-
ter. On one occasion in 1978 Amento argued with Brand
about hiring hall procedures and on another occasion he
was given a verbal reprimand because he worked on a
job, with nonunion employees . Brand credibly testified
that members are suspended after failure to pay dues 3
months, and are dropped from membership after failure
to pay dues 6 months. On May 12 , 1982 , Brand advised
Amento by letter of his 3 -month dues delinquency, and
requested payment of $182 .28 for dues and reinstatement
from suspension . By letter dated July 14 , 1982, Brand no-
tified _ Amento that he would be tried by the Union on
4 This work was not for Industrial Electric Supply , which is a union
company.
5 This date of January 1982 is from the testimony of Amento , corrobo-
rated by Brand
July 28 , 1982, on the charge of working for Respondent
without going through - the union hiring ` hall. "By letter
dated August 25; 1982, Brand advised Amento that, in
Amento's absence at trial , he had been fined $3000, with
$2000 suspended . Amento never paid the fine . By letter
dated August 17, 1982,- Brand notified Amento that he
had been dropped from the union membership . During
his employment by Respondent , Amento kept Micheal
Gomes well-advised concerning his problems-with the
Union, gave Michael the letters he received from the
Union, and frequently expressed to Michael his dislike of
the Union.
Robert Hudson formerly worked for Industrial Elec-
tric Supply. Sometime prior to June 1982 Hudson called
Michael on the telephone and asked about the possibility
of working for Respondent . An interview was arranged
and held , and during either the telephone call or the
interview Hudson asked if Respondent would be " operat-
ing as a union ; shop and Michael said it would not.
Hudson was working for a nonunion contractor at the
time he talked, with Michael . No job opening was avail-
able at the time, 'but Hudson was hired soon thereafter,
as a wireman at $ 14 per hour . He still is employed by
Respondent . Hudson became a union member February
25, 1980, and was a union member at,the time he was
hired by Respondent . Hudson also had a strained rela-
tionship with the Union , although he paid his union dues
through February 1982 . The dues paid for December,
January, and February of 1981 -1982 were-in amounts
that show a nonwork status, rather than a -work status.
Hudson talked with Michael Gomes about the Union on
several occasions, and expressed his dislike for the
Union . By letter dated September 8, 1982 , Brand in-
formed Hudson that he had been dropped from union
membership because of failure to pay his union dues.
Michael Jones became a union member October 28,
1977 , and worked for Respondent 15 hours during June
1982, at an hourly wage of $14.
Counsel stipulated that Respondent had no employees
between its inception and June 4, 1982 , who were cov-
ered by the Union-NECA agreement. During the bal-
ance of June 1982 Respondent had two full-time employ-
ees, Amento, and Hudson , and Jones worked a short
time . Amento and Hudson continued thereafter as full-
time employees , occasionally assisted , by helpers.
Sometime in June Brand learned that Respondent had
employed two persons, but that such fact had not been
reported to the Union . Brand notified the Union's trust
office of the apparent , problem, and sent a union agent,
Tom Brady, to Respondent 's shop to investigate. Brady
later reported to Brand that the two employees , Amento
and Hudson , told him , the Union was not giving them
work and that they had to work some place ,- so they
went to work for Respondent . Brady credibly testified
without contradiction that his visit , to Respondent's job-
site to talk with the employees was on July 6.
On July 16 the Union filed an NLRB charge against
Respondent , alleging that Respondent had violated Sec-
tion 8(a)(5) and (1) of the Act. On July 22 Respondent
filed an 8(b)(1)(B) charge against the Union. Both
charges were withdrawn August '26. In July , Amento
SYSTEM ELECTRIC CO.
called Brand on the telephone to complain about his
name being on the Union 's'NLRB charge.
By letter dated August 26 , 1982 , Brand advised Sulli-
van that he was willing to ,meet with him concerning Re-
spondent on September I or 2 . Reincke called Brand on
the telephone , and September 1 was agreed on as the
date to meet.
On August 31 Respondent filed an RM petition with
the Board, which later was dismissed on January 5 by
the Regional Director of Region 21, on the basis of the
Union's disclaimer on January 3 of interest in represent-
ing Respondent's employees.
The parties met as scheduled at the Union 's office on
September 1. Sullivan and Reincke attended for Re-
spondent, and the Union was represented by Brand and
Marvin Cook , the Union's International representative.
The meeting lasted approximately 1 hour, and neither
side presented contract ` proposals . A principal topic of
discussion was the status of Amento and Hudson and the
Union's representation of them . Sullivan asked for the
Union's proof of representation because he doubted it,
and the Union contended that it did, in fact, represent
the two employees . The Union pointed out that Amento
and Hudson were members of the Union at that time. A
few other matters briefly were discussed , including a "fa-
vored nations" provision in some contracts , possible ne-
gotiation of an 8(f) contract, Brand 's possibly meeting
later with Amento and Hudson , ratification of the con-
tract by Respondent 's employees , and, guidelines for
future negotiations.
The parties have not met or negotiated since Septem-
ber 1.
B. Discussion
Several salient facts are not in dispute, or clearly are
established by the report. -(1) Respondent timely and
properly notified NECA and the Union of. Respondent's
intention to withdraw NECA's bargaining authority for
Respondent, and of Respondent's proposed termination
of its contract with the Union effective May 31. (2)
Amento and Hudson were hired in June, after the collec-
tive-bargaining agreement's termination date, without
going through Respondent's hiring hall and at a wage
rate lower than that provided by the terminated agree-
ment. (3) Since approximately June 4, Respondent has
submitted no reports to the Union's trust fund, and has
not made any payments to union trust funds required by
the terminated agreement. (4) Amento and Hudson were
union members as of the date of their hire by Respond-
ent. They were delinquent in payment of union dues as
of that time, but they lead not 'been dropped from union
membership. (5) Amento, and Hudson kept Michael
abreast of their runningfeud with the Union, and freely
discussed their dislike of the Union with Michael and
fellow employees. (6) Prior to the date Amento was
hired, Michael already had decided, in late April, that he
was not going to be signatory to a contract with the
Union. That fact was testified to by Michael.
On December 17, 1981, Respondent notified the Union
of its willingness to bargain, on request, for a new con-
tract. The Union took no affirmative action relative to
Respondent's offer, but on March 2 told Respondent it
653
was "ready to meet" at any mutually agreed time. On
March 12, Reincke answered the Union"s letter of March
2, but the Union refused to recognize Sullivan as Re-
spondent's representative. Not until May 26 did Brand
ask Respondent for confirmation of Sullivan's status, and
that request, was in Brand's letter to James Gomes. Brand
offered conflicting statements at trial for his refusal to
deal with Sullivan, none of which had the ring, of truth.
It would have been a simple matter for Brand to have
questioned Sullivan's status, by telephone call or letter,
either to Sullivan or Respondent or both, much earlier
than May 26.6 In any event, it is clear that the Union did
not, or would not, until late May or early June, deal
with Sullivan. However, that fact does not reach any of
the basic issues.
The General Counsel avers that, by signing the Letter
of Assent-A, Respondent became a member of a multi-
employer bargaining group, but that matter is not in
issue. Respondent acknowledges that fact, and Respond-
ent timely withdrew from the multiemployer group. The
withdrawal from the Letter of Assent-A was nnade De-
cember 17, 1981, with the existing contract to be termi-
nated on its expiration date, May 31, 1982.
A basic question is whether the presumption of the
Union's majority arising from Respondent's signing the
Letter of Assent-A, i.e., its participation in the multiem-
ployer bargaining group, survives Respondent's timely
withdrawal on December 17, 1981, from the multiem-
ployer group prior to expiration of the union-NECA
contract on May 31, 1982.7 Existence of the original pre-
sumption is not in dispute. So far as the lost-10(b) period
is concerned, it is fundamental that a contract, lawful on
its face, raises a presumption that the union party to the
contract was the majority representative of the employ-
ees at the time the contract was executed, as well as
during the life of the contract, and thereafter." The Gen-
eral Counsel argues that the presumption is irrebuttable,
and cites Cauthorne Trucking9 as authority for that prop-
osition. Cauthorne Trucking did not' involve a multiem-
plolyer unit, however-only' a single employer was in-
volved, and the principle relied on by the General Coun-
sel was set forth in footnote 3:
Rish Equipment Co., 173 NLRB 943 (1968), enfd.
407 F.2d 1098 (4th Cir. 1969). A collective-bargain-
ing agreement, lawful on its face, raises an irrebutta-
ble presumption that the union's majority status
continued through the end of the contract. This
presumption continues beyond the expiration of the
contract, but becomes rebuttable. Of course, the
6 In his letter of March 17 addressed to the Union, Remcke referred to
a letter of February 8, which, he said, advised the Union of Sullivan's
representative status with Respondent, but that letter of February 8 is not
in evidence.
7 Respondent does not, and legally could not, now challenge the
Union's multiemployer majority as of the time the Letter of Assent-A
first was signed on March 10, 1975, in view of Sec. 10(b) of the Act.
Bryan Mfg. Co., 362 U.S. 411 (1960).
8 See, e g., Nevada Lodge, 227 NLRB 368 (al976); Shamrock Dairy, 119
NLRB 998 (1957), and 124 NLRB 494 (1959),enrd. 280 F 2d 665 (D.C.
Cir. 1960), cert. denied 364 U.S. 892 (1960).
9 Cauthorne Trucking, 256 NLRB 721 (1981), modified 691 F.2d 1023
(D.C. Cir. 1982).
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
burden of rebutting this presumption is upon the
party that would do so. Eastern Washington Distrib-
uting Co., Inc., 216 NLRB 1149 (1975).
Rish Equipment Co., relied on in Cauthorne Trucking, is
not proper authority for the footnote reference, howev-
er, because Rish arose from an RC case and involved re-
fusal by an employer to bargain with a Board-certified
union. In Rish, the administrative law judge stated, page
944: "[T]he continued majority status of the certified
union is presumed, but an employer may rebut the pre-
sumption by an affirmative showing that the union no
longer commands a majority." It is clear from Nevada
Lodge, supra, which followed Tahoe Nugget,' ° that the
presumption relied on by the General Counsel is rebutta-
ble. In both Tahoe Nugget and Nevada Lodge, the evi-
dence relating to the Union's majority that allegedly con-
tinued after timely withdrawal from a multiemployer
bargaining group and until the contract expired was
carefully examined and found to be an actual majority.
In this case, it is quite clear that, at no time prior to expi-
ration of the multiemployer agreement on May 31, 1982,
did Respondent have any employees. As noted supra,
counsel stipulated that Respondent had no employees be-
tween Respondent's birth and June 4, 1982, who were
covered by the union-NECA contract. Therefore, the
Union did not enjoy majority status in any employee
complement of Respondent prior to June 4, 1982. How-
ever, that fact is not the end of the controversy.
Assuming the Union's lack of majority status at Re-
spondent's plant at all times prior to May 31, 1982, the
union-NECA contract was effective until that date, and
Amento and Hudson were union members until, and
beyond, that date, albeit both of them were not conduct-
ing themselves as loyal union members and were en-
gaged in running controversies with the Union. Even if,
arguendo, Respondent was not required to negotiate
with the Union as the representative of its employees for
a new contract to succeed the one that would expire
May 31, 1982, such a fact would not release Respondent
from the union-NECA contract, and its requirements,
prior to that date. So much apparently was recognized
by Jim Gomes, who advised the Union on December 17,
1981, that the existing union-NECA contract would be
terminated so far as Respondent was concerned, effective
May 31, 1982. Further, Respondent continued until June
4, 1982, to submit monthly employee reports to the
Union's trust fund, as required by the union-NECA con-
tract. It is found that Respondent was bound to the
union-NECA contract, and all its provisions, until May
31, 1982, regardless of any questions relating to Respond-
ent's obligation to bargain with the Union thereafter, as
the representative of Respondent's employees. By direct-
ly negotiating with Amento and Hudson concerning
their work conditions, within the term of the union-
NECA contract and without notice to , or bargaining
with, the Union, Respondent violated Section 8(a)(5) and
(1) of the Act, as alleged in the complaint. '11
10 Tahoe Nugget, Inc., 227 NLRB 357 (1976).
11 Creative Engineering, 228 NLRB 582 (1977).
As noted in the background summary above, Michael
Gomes made it clear to Amento and Hudson when he
talked with them in May prior to their employment that
he would be operating Respondent as a nonunion plant.
As previously noted, Amento and Hudson were union
members at that time, regardless of their poor relation-
ship with the Union. They did not resign from their
membership, as they could have, but rather, sometime
after their employment by Respondent, they let their
membership be terminated by the Union through failure
to pay union dues. Also at the time of the statements to
Amento and Hudson in May, Respondent still was a
party to, and bound by, the union-NECA contract. Fi-
nally, about the same time as the statements by Michael,
the latter freely discussed with Amento and Hudson
their various problems with the Union. Admittedly, Mi-
chael did not want a union shop, so informed Amento
and Hudson, and actively participated in widening the
rift between the Union and its two members. Under such
circumstances, Michael's statements to Amento and
Hudson about his intention to have a nonunion shop
were coercive and in violation of Section -8(a)(1) of the
Act, as alleged in the complaint. 112
A basic issue is whether Respondent had a good-faith
boubt, based on reasonable and objective considerations,
that the Union represented a majority of Respondent's
employees after May 31, 1982. As discussed above, it is
apparent that Amento and Hudson disliked the Union,
stopped paying their union dues, and conveyed those
facts to Michael Gomes. However, that does not deter-
mine any conclusion. In the first place, prior to May 31
Respondent already had committed two violations of the
Act, found above. Michael made it plain to Amento and
Hudson that he planned to operate without a union con-
tract, and he negotiated direcly with those two potential
employees, without regard to his contractual- obligations
to the Union. Those facts alone take Respondent outside
the usual parameters of the good faith required in raising
a doubt about the Union's majority.13 But more is in-
volved. Regardless of the fact that Amento and Hudson
on several occasions made it clear to Michael that they
disliked the Union, they did not resign their member-
ships. Rather, they just let them die a natural death,
sometime after their employment by, Respondent. Brady
visited Amento and Hudson July 6, and sometime there-
after, according to Brand's testimony, credited on this
matter, Brand decided that Amento and Hudson did not
want to be represented by the Union. Later, on January
3, 1983, the Union formally filed a disclaimer of interest
in representing the two employees. In view of Respond-
ent's earlier violations of the Act, and in view of Mi-
chael's determination to go nonunion and his frequent
talks with Amento and Hudson about their sentiments,
there is no possibility of determining whether the two
12 Continental Inn, 186 NLRB 248 (1970), enf. in relevant part 453
F 2d 269 (6th Cir. 1971). Amento and Hudson were applicants for em-
ployment at the time the statements ' were-made by Michael They were,
therefore, covered by the Act at that time. See, e.g., Daily Transit Mix
Corp., 238 NLRB 879 (1978).
13 Harvey's Resort Hotel, 236 NLRB 1670 (1978); Acme Markets, 232
NLRB 219 (1977).
SYSTEM ELECTRIC CO.
employees would have wanted union representatives in
the absence of those facts.. Respondent meddled in the
relationship between the Union and the two employees,
and cannot now claim any benefits that may flow from
the meddling. When the two employees were hired they
were union members, and that fact prima facie gave the
union majority status.,,That showing is buttressed by the
presumption flowing from the union-NECA contract
that was terminated effective May 31. The Act requires
that, on expiration of a contract, an employer must retain
the same wages and working conditions that prevailed
under the contract-, and if changes detrimental to em-
ployees are made without giving ' the employees' repre-
sentative prior notice and an opportunity to bargain
about the changes, such action would, constitute a viola-
tion of Section 8(a)(5) and (1) of the Act.14 The Union
was the representative of Respondent's employees at the
time Respondent ceased paying hourly wage rates and
fringe benefits prevailing under the terminated contract,
and thereafter continued such reduced wages and bene-
fits. Such changes constitute a violation of Section
8(a)(5) and (1) of the Adt as' alleged in the complaint.15
Respondent argues that it was in the building and con-
struction industry and offered to bargain with the Union
for an 8(f) contract. That argument is without merit be-
cause it was not shown that Respondent was in the
building and construction industry, as that phrase is used
in the Act. Such a showing was Respondent's burden,
and the burden was not met. Respondent also argues that
the changes in'wages and working conditions were per-
missible because the parties had reached a bargaining im-
passe, but that argument also is without merit. Respond=
ent had submitted no proposals to the Union, on which
an impasse could be reached. Respondent's effort to es-
tablish that the union was intractable in its insistence that
all area employers sign the Union-NECA contract was
not persuasive.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the, meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3, The following employees constitute a unit appropri-
ate for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by Respondent engaged in
electrical or electronic construction job 'work, con-
sisting of the handling and moving of all electrical
or electronic material, equipment, apparatus and ap-
pliances, the installation of all electrical or electron-
ic construction and/or erection work including the
installation and connecting of motors or generators,
of all fixtures, or area light diffusing systems, appli-
ances, and electrical maintenance thereon, and of all
14 NLRB v. Katz, 369 U.S. 736 (1962); Cauthorne Trucking,' supra.
15 Stone Boat Yard, 264 NLRB 981 (1982);' Dial Tuxedo. Inc., 250
NLRB 476 (1980); Creative Engineering, supra
655
electronic equipment, electronic systems, communi-
cation systems with all related control wiring and
devices, to and including the final running test, and
any related instrumentation work or radiation moni-
toring, the welding, burning, brazing, bending, drill-
ing and shaping of all copper, channel iron, angle
iron, I beams, and brackets to be used in connection
with the -installation and erection of electrical
wiring or equipment, the chasing and channeling
necessary to any electrical or electronic work, the
installation and maintenance of all temporary wiring
and of all electrical lighting, heating and power
equipment, the operating of power equipment used
for the installation of electrical or electronic work,
'the cutting, threading and bending of all conduit by
hand or machine, the sound backgrond work, re-
gardless of voltage, electronic and high frequency
equipment installation, and maintenance, the iinstalla-
tion assembly, trouble-shooting and final checkout
including outside and inside construction of closed
circuit television, intercommunication, audio back-
ground music for private, commercial or industrial
use, for all electrical apparatus'by means Of which
electricity is applied to amplification transmission,
transference, production recording, or reproduction
of voice, music and sound, and work on Nurse Call,
Fire Alarm, Synchronized Clock and other similar
control, signaling and, indicating systems; excluding
all office employees, guards, and supervisors as de-
fined in the Act.
4. Respondent violated Section 8(a)(1) of the Act by
telling job applicants that Respondent would be 'a'non-
union employer, at a time'when Respondent's employees
were- represented-by the Union.
5. Respondent violated Section 8(a)(5) and (1) of the
Act by bypassing the- Union and dealing directly with its
employees concerning wages and other terms and condi-
tions of employment; and by failing and refusing until
January 3,,,1983, to pay hourly, wage rates and fringe
benefit contributions for its employees as required by-the
union-NECA contract in effect between the parties.
THE REMEDY
Having found that Respondent has engaged in, certain
unfair labor practices, it will The recommended that Re-
spondent be ordered to cease and desist therefrom, and
take certain affirmative action, designed to effectuate the
policies of the Act.
It will be recommended that Respondent make! whole
employees for their losses in - wages and fringe benefit
contributions from June 4, 1982, until January 3, 1983, at
which time the Union disclaimed further interest in rep-
resenting Respondent's employees, as noted supra, with
interest thereon to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter-
est as set forth in, Isis Plumbing Co., 138 NLRB 716
(1962), and Florida Steel Corp., 231 NLRB 651(1977).
[Recommended Order omitted from publication.]