Kirkpatrick Electric Co.

National Labor Relations Board - Board Decisions

Sep 9, 1994

314 N.L.R.B. 1047 (N.L.R.B. 1994)

1047
314 NLRB No. 169
KIRKPATRICK ELECTRIC CO.
1 On July 14, 1993, Administrative Law Judge Richard J. Linton
issued the attached decision. The General Counsel and the Respond-
ent each filed exceptions and a supporting brief.
2 In finding that Larry Earnest is not an employee within the
meaning of Sec. 2(3), we rely only on the fact that his mother is
a 50-percent shareholder in the Respondent.
3 We agree with the judge that Respondent proved that it had no
enforceable obligation to recognize or bargain with the Union as of
June 1, 1991, because it had a permanent bargaining unit com-
plement of only one statutory employee. We disavow the judge’s ob-
servation that the Respondent’s bargaining duty would resume
should the unit expand to two or more statutory employees at any
time during the term of the Respondent’s 1991–1994 contract with
the Union. The bargaining relationship, once lawfully terminated,
does not persist inchoate. It can only be reestablished through proce-
dures recognized under Sec. 9(a) or 8(f).
4 The General Counsel contends in exceptions that the judge erro-
neously stated that the Respondent could litigate in compliance pro-
ceedings whether it permanently eliminated the electrician’s appren-
tice position on June 4, 1992, when it unlawfully discharged
discriminatee Randall Mauldin. We agree with the General Counsel.
The question of whether the Respondent would have discharged
Mauldin on June 4 for legitimate reasons has already been litigated,
in accord with the standard set forth in Wright Line, 251 NLRB
1083 (1980). The Respondent cannot relitigate that issue in compli-
ance, but it may seek to prove that events subsequent to and unre-
lated to the discharge affect the reinstatement and backpay remedy
for Mauldin.
Kirkpatrick Electric Co., Inc. and International
Brotherhood of Electrical Workers, Local
Union 136, AFL–CIO. Case 10–CA–26166
September 9, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The issues addressed here are whether the judge cor-
rectly found that: (1) the Respondent is subject to the
Board’s jurisdiction; (2) the Respondent did not violate
Section 8(a)(5) of the Act by repudiating its collective-
bargaining agreement with the Union; and (3) the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discharging employee Randall Mauldin.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kirkpatrick Electric Co.,
Inc., Birmingham, Alabama, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Edward A. Smith, Esq., for the General Counsel.
Eugene W. Fuquay, Esq., of Birmingham, Alabama, for the
Respondent.
Gary C. Reaves, Bus. Mgr. (IBEW 136), of Homewood, Ala-
bama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. Kirk-
patrick Electric Co., Inc. (KEC) wants to walk away from
IBEW Local 136 and a 1991–1994 collective-bargaining
agreement (CBA). Ordinarily KEC would not be able to do
so in the circumstances here. KEC succeeds here only be-
cause the certified bargaining unit has shrunk to a single stat-
utory employee, Randall W. Mauldin.
Effective June 1, 1992, Kirkpatrick Electric Co., Inc.
(KEC) withdrew recognition from IBEW Local 136 and ab-
rogated the 1991–1994 collective-bargaining agreement
(CBA), and on June 4, 1992, KEC terminated Randall W.
Mauldin. Because KEC never canceled the assignment of its
bargaining rights to NECA, made in June 1988 when KEC
signed a Letter of Assent A, ordinarily I would find that its
June 1, 1992 withdrawal of recognition and refusal to honor
the 1991–1994 CBA violated Section 8(a)(5) of the Act. As
I discuss at the conclusion of this decision, KEC apparently
labors under the mistaken impression that its relationship
with the Union was an escapable 8(f) situation, when in fact
the Union enjoys (or would enjoy) the plenary power of a
9(a) representative.
I find that KEC violated Section 8(a)(3) of the Act on
June 4, 1992, when it discharged Mauldin. I order KEC to
reinstate Mauldin and to make him whole, with interest.
I presided at this 1-day trial on April 29, 1993, in Bir-
mingham, Alabama, pursuant to the April 5, 1993 amended
complaint (complaint) issued by the General Counsel of the
National Labor Relations Board through the Regional Direc-
tor for Region 10 of the Board. The complaint is based on
a charge filed and served on August 7, 1992, by International
Brotherhood of Electrical Workers, Local Union 136 (the
Union or Local 136) against Kirkpatrick Electric Co., Inc.
(Respondent, Kirkpatrick, KEC, or Company).
In the Government’s complaint the General Counsel al-
leges that Respondent Kirkpatrick violated Section 8(a)(5) of
the Act, 29 U.S.C. § 158(a)(5), about May 28, 1992, when
it withdrew recognition from the Union and violated Section
8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), on June 4, 1992,
when it fired Randall Mauldin.
By its answer KEC admits some facts, denies violating the
Act, and raises certain affirmative defenses, including that of
limitations under 29 U.S.C. § 160(b).
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 References to the one-volume transcript are by volume and page.
Exhibits are designated GCX for the General Counsel’s and RX for
Respondent KEC’s.
Unless I indicate otherwise, all dates are for 1992. On the
entire record, including my observation of the demeanor of
the witnesses, and after considering the briefs filed by the
General Counsel and by the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
An Alabama corporation with an office and place of busi-
ness at Birmingham, Alabama, Kirkpatrick performs elec-
trical construction and maintenance. Although admitting in
its answer that at all material times it has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, KEC also denied the commerce allega-
tions. At trial the parties stipulated (Tr. 1:7) as follows (GCX
2):1
Kirkpatrick Electric Co., Inc., during the past calendar
year has provided services valued, in aggregate, at
greater than $50,000 to various enterprises within the
State of Alabama that are, themselves, directly engaged
in interstate commerce and meet the Board’s direct ju-
risdictional standards, and that as a result of the com-
mercial activity described above, Kirkpatrick Electric
Co., Inc. is subject to the jurisdiction of the National
Labor Relations Board as such jurisdiction is alleged in
paragraph 4 of the National Labor Relations Board’s
Amended Complaint in the above-captioned matter.
Complaint paragraph 4, denied in KEC’s answer, alleges:
Respondent, during the past calendar year, which period
is representative of all times material herein, provided
services valued, in the aggregate, at greater than
$50,000 to the following enterprises within the State of
Alabama: Coca Cola Bottling Company, Secor Federal
Savings Bank and Tulip Corporation. Coca Cola Bot-
tling Company and Tulip Corporation are Alabama en-
terprises that are directly engaged in interstate com-
merce and meet the Board’s jurisdictional standards for
direct inflow. Secor Federal Savings Bank is an Ala-
bama enterprise that, in turn, annually derives in excess
of $50,000 in functioning as an essential link in the
transportation of commodities in interstate commerce.
Although the stipulation, with its reference to complaint
paragraph 4, is not a model of clarity and specificity, I find
that by its language the parties agreed: (1) During the past
calendar year (that is, during 1992), (2) KEC provided serv-
ices totaling, in aggregate, more than $50,000 (3) to firms
operating inside Alabama, including Coca Cola Bottling
Company and Tulip Corporation, (4) which themselves are
directly engaged in commerce and (5) which (from complaint
par. 4) ‘‘meet the Board’s jurisdictional standards for direct
inflow.’’ The ‘‘themselves’’ in item (5) is a plural word, but
it is clear from the context that the reference is to ‘‘each of’’
the firms as meeting the Board’s standard for direct inflow.
The Board’s discretionary standard for direct inflow is that
KEC provide at least $50,000 in goods or services to firms
each of which in turn received goods or services valued at
$50,000 or more directly from points outside Alabama.
Siemons Mailing Service, 122 NLRB 81 (1959). (Contrary to
pleadings in some cases, and language even in some court
decisions, the Board’s $50,000 threshold standard is just that.
It is not a standard requiring an amount exceeding $50,000.
Siemons, supra at 85.) The stipulation, including complaint
paragraph 4, shows that KEC meets the Siemons indirect out-
flow standard because (1) KEC provided $50,000 or more in
services (2) to users (Coca Cola; Tulip) each of which in
turn meets Siemons’ direct inflow standard. That is, they re-
ceived direct from outside Alabama goods or services valued
at $50,000 or more. Finally, because Secor Federal Savings
Bank (complaint par. 4) derives at least $50,000 functioning
as an essential link in the transportation of commodities in
interstate commerce, that connection alone satisfies the indi-
rect outflow standard which the Board set in Siemons.
At trial KEC’s attorney expressed his understanding that
the stipulation does not, and was not intended to, indicate
that the individual enterprises [such as Coca Cola and Tulip]
each grossed $50,000. (Tr. 1:10.) KEC’s counsel did not
thereafter move to modify the stipulation. Accordingly, the
stipulation binds the parties. Academy of Art College, 241
NLRB 454, 455 (1979), enfd. 620 F.2d 720 (9th Cir. 1980).
On the key point KEC argues that there is no reference
in the stipulation to the required $50,000 respecting the
users. But there is. It is incorporated in the term ‘‘direct in-
flow.’’ That term is a $50,000 standard defined in Siemons.
Finding, therefore, that KEC meets the Board’s indirect out-
flow standard for discretionary jurisdiction, I further find, as
admitted, that Kirkpatrick is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
In any event, jurisdiction is established respecting KEC
because KEC signed the Assent A, thereby joining forces
with a group in an activity that has an indisputable impact
on commerce so far as the Act is concerned. Stack Electric,
290 NLRB 575, 576–577 (1988).
II. LABOR ORGANIZATION INVOLVED
The pleadings establish that IBEW Local 136 is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Witnesses
Six witnesses testified before me. The General Counsel
called four of the six: Meridith W. Tatum Sr., since January
1, 1993, a consultant with NECA, the National Electrical
Contractors Association (Tr. 1:23); Randall W. Mauldin, the
alleged discriminatee; J. Randy Bottomlee, the training direc-
tor for the joint apprenticeship program (Tr. 1:91–92); and
Gary C. Reaves, the Union’s business manager (Tr. 1:101).
After the General Counsel rested (Tr. 1:116), KEC called the
other two witnesses: Larry Earnest, a journeyman electrician
and close relative of those who own 67 percent of KEC’s
stock (Tr. 1:118–120); and Roy F. Ellas, KEC’s president
and owner of the remaining 33 percent of the stock (Tr.
1:119, 130). No rebuttal witnesses testified. (Tr. 1:154.)
1049KIRKPATRICK ELECTRIC CO.
2. KEC’s personnel
Roy F. Ellas has been president of KEC since 1975. (Tr.
1:69, 130.) Currently, in addition to Ellas, KEC employs two
other persons: Ed Royal, the office manager and bookkeeper
(Tr. 1:128, 132) who works 5 hours a day (Tr. 1:132), and
Larry Earnest, an electrician (Tr. 1:120, 132). Before his
June 4, 1992 termination, Randall W. Mauldin worked some
2 years for KEC as an apprentice electrician under Larry
Earnest. (Tr. 1:67–68, 81, 83, 120.) Although Ellas testified
that Arnold F. Earnest retired about June 1992 (Tr. 1:131–
132), Ellas states that the work force as of Mauldin’s termi-
nation consisted of Mauldin, Larry Earnest, Ed Royal, and
Ellas. (Tr. 1:132.) The bargaining unit apparently consisted
of Larry Earnest and Mauldin.
Larry Earnest’s mother, Betty Earnest, owns 50 percent of
KEC’s stock, his wife owns 17 percent, and Ellas owns the
other 33 percent. That has been the stock division since
1975. (Tr. 1:119–120.) Thus, Larry Earnest is closely related
to persons who own 67 percent of KEC’s stock. Ellas testi-
fied that the work KEC does now is one-man jobs of 2 to
4 hours a day, and that it has ceased bidding on jobs because
it cannot match the less-than-CBA rates charged by KEC’s
400 or so competitors in Birmingham who are Local 136
men operating open shop out of their trucks or from the back
of their cars. KEC (even without the CBA) cannot compete
with such one-man firms, Ellas testified, because KEC has
to pay insurance and workers’ compensation and such mat-
ters. ‘‘There’s no way’’ KEC can compete with that, Ellas
testified. (Tr. 1:147–148.)
3. The bargaining unit
On April 27, 1987, in Case 10–RC–13486, Region 10 con-
ducted an election at KEC in which, out of three eligible vot-
ers, IBEW Local 136 won three to zero. (GCX 8; 1:90, 131.)
The employees who voted were Arnold F. Earnest (husband
of the majority stockholder), Larry C. Earnest, and Jerry (last
name not stated), a journeyman electrician. (Tr. 1:120, 131.)
The pleadings establish that on August 12, 1987, the Re-
gional Director for Region 10 certified the Union as the ex-
clusive collective-bargaining representative of all employees
in the following bargaining unit:
All construction and maintenance employees employed
by the Employer at its Birmingham, Alabama, facility,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
Although complaint paragraph 10 alleges that the Union
has been the exclusive bargaining representative at all times
since August 12, 1987, the certification date, the correct date
is April 27, 1987, the election date. The certification date is
when the Employer’s limited duty to bargain following the
Union’s election victory ripens into the Employer’s plenary
statutory obligation, but the duty to bargain relates back to
the election date. Livingston Pipe & Tube v. NLRB, 987 F.2d
422, 428 (7th Cir. 1993); Lovejoy Industries, 309 NLRB
1085, 1109 (1992); Dow Chemical Co. v. NLRB, 660 F.2d
637, 644 (5th Cir. 1981).
4. Letter of Assent A and the 1988–1991 CBA
For 22 years, and during the relevant time, Meridith W.
Tatum Sr. was the chapter manager (Central Mississippi
Chapter) for NECA, the National Electrical Contractors As-
sociation. (Tr. 1:23.) NECA, Tatum testified (and complaint
par. 11, admitted, establishes) is a trade association com-
posed of electrical contractors organized to promote the gen-
eral industry of electrical contracting, to collect data for gov-
ernment and public, to promote safety, and to represent its
employer-members in negotiating and administering collec-
tive-bargaining agreements (CBAs) with Local 136 and other
locals of the IBEW. (Tr. 1:23–24).
In evidence is a copy (GCX 4) of the April 15, 1988,
through May 31, 1991 collective-bargaining agreement, the
‘‘Inside Agreement,’’ (CBA1) between IBEW Local 136 and
NECA’s Central Mississippi Chapter, Birmingham Division.
Also in evidence is a copy (RX 4) of the market recovery
agreement (MRA) which reflects the same effective term of
April 15, 1988, through May 31, 1991, for the same NECA
chapter’s Birmingham Division (NECA, herein). On its face
the MRA, apparently more beneficial to contractors than cer-
tain provisions in CBA1, states that it is devised in recogni-
tion of ‘‘depressed economic conditions.’’ Tatum testifies
that the MRA’s purpose was to recapture the commercial
market. (Tr. 1:56.)
The second paragraph of CBA1 provides that the agree-
ment shall apply to all firms which sign a Letter of Assent
to be bound by CBA1.
By letter (RX 2) dated May 18, 1988, the Union’s inter-
national vice president, Dan Waters, forwarded copies of the
new 1988–1991 contract, CBA1, and the MRA to KEC. Wa-
ters also enclosed a copy of Letter of Assent A for KEC’s
signature. KEC was interested in the MRA, Ellas testified, so
‘‘we at that time signed an agreement for 3 years and be-
came a member of NECA.’’ (Tr. 1:133.) Although Ellas tes-
tified that KEC never would have joined NECA except for
his understanding that the MRA was part of the CBA (Tr.
1:134), Waters’ letter clearly refers to separate documents,
Tatum testified that the MRA is a separate document (Tr.
1:52), and it is clear that the agreements themselves are sepa-
rate documents.
In late June 1988 Ellas signed a Letter of Assent A, the
effective date of the document being June 27, 1988. (GCX
3; Tr. 1:25.) Excluding footnotes, the pertinent text reads
(GCX 3):
Letter of Assent—A
In signing this letter of assent, the undersigned firm
does hereby authorize Central Mississippi Chapter, Bir-
mingham Division, NECA as its collective bargaining
representative for all matters contained in or pertaining
to the current and any subsequent approved Inside labor
agreement between the Central Mississippi Chapter,
Birmingham Division, NECA and Local Union 136,
IBEW. The Employer agrees that if a majority of its
employees authorizes the Local Union to represent
them in collective bargaining, the Employer will recog-
nize the Local Union as the exclusive collective-bar-
gaining agent for all employees performing electrical
construction work within the jurisdiction of the Local
Union on all present and future jobsites. This authoriza-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion, in compliance with the current approved labor
agreement, shall become effective on the 27 day of
June, 1988. It shall remain in effect until terminated by
the undersigned employer giving written notice to the
Central Mississippi Chapter, Birmingham Division,
NECA 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.
Confirming the opening lines of NECA’s Letter of Assent
A, Tatum testified that when a contractor signs an Assent A,
it authorizes NECA to engage in collective bargaining for it.
(1:24). As a new CBA had been made effective April 15,
1988, KEC, by the terms of the Assent A quoted above, be-
came bound to the ‘‘current’’ CBA, or CBA1. KEC does not
dispute that fact. The dispute in this case centers on the ap-
propriate withdrawal procedure and date.
By letter dated August 14, 1989 (over a year after
executing Assent A), KEC, by Ellas, wrote the Elec-
trical Industry Receiving Trust Fund, to Tatum’s atten-
tion (RX 7; Tr. 1:43):
This letter is to inform you that Kirkpatrick Electric
Company no longer desires to be a member of the Na-
tional Electrical Contractors Association.
The monthly payroll report enclosed will be the last
payment to the National Electrical Industry Fund.
Tatum testified that thereafter (within 30 days by general
practice) he notified his national office that effective August
14, 1989 KEC was no longer a member of NECA. (Tr. 1:43–
44.) Ellas testified that by the foregoing letter he intended to
sever all his relationships with NECA. NECA did not re-
spond to the latter, Ellas testified. From that August 14 for-
ward, Ellas testified, Ellas operated under the belief that
KEC was not represented in any way by NECA. (Tr. 1:135.)
Being a member of NECA and a signatory to NECA’s
Letter of Assent A are different undertakings. Gary C.
Reaves, Local 136’s business manager, testified that Local
136 is a party to 35 Letters of Assent A, but only 10 to 15
of the contractors are dues-paying members of NECA. Con-
tractors come and go as members of NECA based on bene-
fits they perceive they are receiving by their membership,
Reaves testified. But even when they drop their NECA mem-
bership, ‘‘that doesn’t disturb the [Letter of Assent A] rela-
tionship with us.’’ (Tr. 1:115.) To cancel its obligation under
an Assent A, a signatory contractor must send a cancellation
notice 150 days prior to the anniversary date of the CBA
with which it is associated. (Tr. 1:115.)
Reaves testified (and as Assent A specifies) that by sign-
ing Letter of Assent A a contractor designates NECA as its
collective-bargaining representative. Because of that agency
status, Reaves deals only with NECA, not directly with a sig-
natory contractor for all matters pertaining to the labor agree-
ment. (Tr. 1:103–104, 112, 114–115.) No one (before this
case, presumably) ever told Reaves that KEC had withdrawn
from membership in NECA. However, Reaves testified,
membership in NECA was an immaterial matter to the
Union. (Tr. 1:111.)
Article I of CBA1 has two provisions, relevant here, bear-
ing on its termination date. They read (GCX 4 at 1):
Section 1.01. This agreement shall take effect April
15, 1988, and shall remain in effect through May 31,
1991, unless otherwise specifically provided for herein.
It shall continue in effect from year to year thereafter,
from June 1, through May 31, of each year, unless
changed or terminated in the way later provided herein.
Section 1.02. (a) Either party desiring to change or
terminate this agreement must notify the other, in writ-
ing, at least 90 days prior to the anniversary date.
However, a contractor signatory to Assent A who desires
to withdraw from a contractual relationship with the Union
must also cancel the bargaining authority the contractor
granted NECA under Assent A. As earlier quoted, that au-
thority is canceled by giving written notice as least 150 days
before the ‘‘then current anniversary date of the applicable
labor agreement.’’ (GCX 3; 1:27–28, Tatum.) The ‘‘anniver-
sary’’ date, Tatum testified, is the date the initial term, or
any 1-year automatically extended term, ends, that being
May 31. (Tr. 1:35, 59–60.) Calculating 150 days before the
May 31, 1991 expiration date of CBA1 produces the approx-
imate date of January 2, 1991. Under this reading, KEC
needed to have canceled by January 2, 1991, the bargaining
authority which it gave NECA effective June 27, 1988. I
shall return to this topic in a moment.
5. The 1991–1994 CBA
Anticipating the scheduled May 31, 1991 expiration of
CBA1, Tatum (Tr. 1:35–36) and Reaves (Tr. 1:101–103)
began about the first of March 1991 negotiating a successor
agreement to CBA1. In June 1991 they reached agreement
and the successor contract, CBA2 (GCX 5), is effective June
1, 1991, through May 31, 1994. (Tr. 1:33, 103.) CBA2 con-
tains the same expiration provisions, quoted above from
CBA1, except for the dates. (GCX 5 at 1.) Tatum testified
that before CBA1 expired he never received a letter from
KEC withdrawing its Letter of Assent A authorization. (Tr.
1:33.) Tatum testified that he entered these renewal negotia-
tions on behalf of everyone signatory to a Letter of Assent
A, and, recalling from memory at the hearing, he estimated
the number of signatory firms to be about 35. That number
represents the firms within the territorial jurisdiction of Local
136. (Tr. 1:46–47.)
Some 5 months after the June 1, 1991 effective date of
CBA2 (the negotiated 1991–1994 successor to CBA1), KEC,
by Ellas, wrote IBEW Local 136, copy to NECA, the fol-
lowing letter (RX 6) dated November 6, 1991 (Tr. 1:32–34,
43, 48, 59, 136):
This letter is to serve notice that Kirkpatrick Electric
Company, Inc. does not intend to renew the contract
that we presently have. Our contract expires mid-night
on May 31, 1992.
This notice is within the 150 day notice requirement.
Ellas testified that his intent by the letter was to give the
150-day notice to both the Union and to NECA. (Tr. 1:136.)
Ellas believed that CBA1 continued in effect, after May 31,
1991, from year to year until canceled by one of the parties.
This November 6, 1991 letter, therefore, was to give ample
notice (more than 150 days) before the (presumed) extended
expiration date of May 31, 1992, for CBA1. (Tr. 1:136–137,
1051KIRKPATRICK ELECTRIC CO.
141.) Ellas testified that after this letter he received no re-
sponse or other correspondence from either Local 136 or
NECA advising him that he was misreading the documents.
His first notice to such effect was word from NLRB Region
10 that the charge in this case had been filed. (Tr. 1:137–
138, 141.)
Tatum (Tr. 1:61–62, 64), who would not stand on any for-
mality of receiving only a copy (Tr. 1:63), and Reaves (Tr.
1:107, 116) testified that KEC’s November 6, 1991 letter was
too late to avoid being bound by CBA2, the already nego-
tiated and executed successor contract, and timely by far to
cancel the NECA authority and to terminate the connection
with Local 136 as of May 31, 1994. (Actually, the letter does
not purport to cancel the bargaining authority assigned in the
June 1988 Assent A.)
Although Ellas testified that he never received any mes-
sage that his letter of November 6, 1991, was untimely,
Tatum testified that on several occasions after the November
6 letter he informed Ed Royal, KEC’s part-time office man-
ager and bookkeeper, of such fact and that KEC probably
was bound by the 1991–1994 agreement, CBA2. (Tr. 1:65–
66). The complaint does not allege Royal to be KEC’s agent.
Although Ellas testified that Royal merely fills out reports
but has no authorization to represent KEC in any way (Tr.
1:152), Ellas also states that Royal handled all the forms, re-
ports, and benefit payments required under the agreement
with the Union. ‘‘I have nothing to do with it,’’ Ellas claims.
(Tr. 1:151.) Although Ellas signed the checks with Royal
prepared, Ellas did not inquire into the percentages or
amounts on a monthly basis, relying instead on the annual
profit-and-loss statement to determine the overhead figure he
needed to incorporate into his job bids. (Tr. 1:151–153.) Not-
withstanding Ellas’ position that he considered KEC bound
to a (presumed) 1-year extension of CBA1, in fact KEC paid
the increased benefit payments required under CBA2. (Tr.
1:112.)
Gary Reaves, Local 136’s business manager, testified that
he was aware KEC was a signatory to Assent A (Tr. 1:103,
106), and that after he received KEC’s November 6, 1991
letter he called Tatum, the employer’s designated representa-
tive, who said he would take care of the matter. (Tr. 1:105.)
6. Randall Mauldin fired
Apprentice Randall W. Mauldin testified that around No-
vember to December 1991, at the jobsite, Ellas told him that
KEC was going nonunion because expenses were too high.
Ellas said he would like for Mauldin to remain with KEC,
but that if he could get another referral out of the (union)
hall, to take it. Mauldin reported this conversation to Randy
Bottomlee, the apprentice coordinator, who told him to keep
working at KEC. (Tr. 1:76–78, 80, 82.)
Ellas confirms the November 1991 ‘‘open shop’’ con-
versation with Mauldin and that he expressed the hope that
Mauldin would remain with KEC. According to Ellas,
Mauldin came in later and said that Bottomlee told him he
could remain at KEC as long as KEC paid his wage rate and
health insurance. Ellas said KEC would do so. (Tr. 1:138.)
Bottomlee testified that when Mauldin reported KEC’s plan
he expressed surprise, but said the CBA did not expire until
1994 and for Mauldin to stay at KEC. If KEC ceased making
the required fringe benefit contributions, Bottomlee added,
there was a dispute resolution provision to handle that. Al-
though Bottomlee denies saying that Mauldin could stay as
long as he received scale and benefits (Tr. 1:93–94, 98),
Mauldin concedes that such is what he was told and he re-
ported that either to Ellas or to Journeyman/Foreman Larry
Earnest. (Tr. 1:83.)
Mauldin (Tr. 1:79) and Ellas (Tr. 1:139) agree that their
next conversation on the topic was about May 1992. Mauldin
testified that about mid-May Ellas asked whether Mauldin
would stay if KEC switched the (health) insurance carrier.
Mauldin replied that he could not do so because he had only
a year left in the apprenticeship program and he did not want
to throw away his (time) investment. Mauldin deemed the
choice one of throwing away his time investment because, he
testified, he thought it meant KEC would be converting at
that point to a nonunion shop. (Tr. 1:79–80.) According to
Ellas, the second conversation occurred when he gave
Mauldin the termination slip. Initially he did not recall the
conversation (Tr. 1:139), but later said that he told Mauldin
to sign it to show KEC was severing its relationship ‘‘as far
as the fringe benefits and all on his behalf as of the 31st of
May, ’92, just like the letter states.’’ Mauldin said nothing.
(Tr. 1:153–154.) I credit Mauldin concerning the mid-May
conversation.
The termination letter was delivered on Thursday, June 4.
Mauldin testified that on such date Ellas came to the jobsite
and, tendering him the termination notice (GCX 6) and his
paycheck, told him to read and sign the notice, which
Mauldin did without comment. (Tr. 1:68–71, 84, 88–89.) To
Mauldin, the notice meant that his employment at KEC was
terminated. (Tr. 1:87.) According to Ellas, his intent by the
letter was to make sure the Union understood that KEC was
no longer obligated to pay any fringe benefits or anything
and ‘‘that our relationship had been severed with them.’’ (Tr.
1:139, 153.) As to Mauldin, Ellas assertedly wanted him to
acknowledge his awareness that KEC was severing its rela-
tionship with the Union ‘‘as far as the fringe benefits and all
on his behalf.’’ (Tr. 1:139, 153.) At no time, Ellas testified,
did he tell Mauldin that he could not be employed. It was
KEC’s intent, Ellas testified, that Mauldin remain employed
as an apprentice at KEC, with his same rate of pay, but
under KEC’s health insurance carrier. (Tr. 1:140–141.)
The termination notice is in two parts, both dated May 29,
1992. The first part is addressed as a letter from KEC, by
Ellas, to Mauldin. The second part is the ‘‘Acknowledge-
ment’’ form, which Mauldin signed and which reads, ‘‘I,
Randall W. Mauldin, acknowledge receiving a copy of my
termination of employment from Kirkpatrick Electric Com-
pany, Inc.’’ A copy of the form is shown addressed to IBEW
Local 136. The letter portion of the notice reads (GCX 6):
This letter is to notify you that this company Kirk-
patrick Electric Company, Inc., has severed our rela-
tionship with IBEW Local #136, as of 31 May 1992.
You are hereby notified by this letter that you are no
longer an employee of Kirkpatrick Electric Company,
Inc., covered by IBEW Local #136, as of end of work
day 29 May 1992.
On June 4, shortly after receiving the termination notice,
Mauldin went to the union hall where Bottomlee and Reaves,
after inspecting the notice, said he had been terminated and
could sign the out-of-work list (OWL) and apply for unem-
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment compensation. Mauldin signed the OWL that day.
They never told Mauldin to quit his job with KEC. (Tr.
1:72–73, 84–86, 94–95, 97, 99–100.)
Either the following day, June 5, or the following Monday,
Mauldin received in the mail a ‘‘Separation Notice’’ (GCX
7), dated June 4, 1992, and signed by Ellas, informing him,
‘‘Your employment is terminated as of end of work day June
04, 1992 for the following reason: (x) Reduction in Force.’’
(Tr. 1:74.) None of the other boxes for voluntarily quit, ill-
ness or accident, or discharge is checked. At trial Ellas of-
fered no explanation of why he sent this belated RIF notice
to Mauldin.
Evidence is rather skimpy concerning events after June 4,
1992. As I noted earlier, Ellas testified that currently KEC
has been doing one-man jobs of 2 to 4 hours a day. (Tr.
1:147.) In the last 18 months (that is, since about late Octo-
ber 1991), Ellas testified, Larry Earnest has done all the
work himself. (Tr. 1:147.) As Mauldin was employed during
that time as an apprentice to Larry Earnest, it appears that
Ellas was referring only to journeyman electricians when
saying that Earnest has done all the work. The record there-
fore is not entirely clear whether KEC in fact has hired no
apprentice to replace Mauldin.
B. Discussion
KEC’s November 6, 1991 letter (RX 6) was ineffective for
terminating its contractual obligations with IBEW Local 136.
This is so because its August 14, 1989 letter (RX 7) had
only dropped its NECA membership. That letter said nothing
about terminating the assignment of its bargaining rights to
NECA under the June 27, 1988 Letter of Assent A. Hence,
when NECA and the Union reached a successor contract,
CBA2, effective June 1, 1991, through May 31, 1994, KEC,
by virtue of the language in Letter of Assent A, was auto-
matically bound to CBA2 through May 31, 1994. The prior
contract, CBA1, was not extended because it was succeeded
by CBA2.
So far as the record shows, KEC still has not notified
NECA and IBEW Local 136 that it is terminating the assign-
ment of bargaining rights made to NECA in the June 27,
1988 Letter of Assent A. The termination notice (RX 6) re-
specting the contract, CBA2, does not accomplish that task.
Thus, to this day KEC remains bound to the June 27, 1988
Letter of Assent A. Leapley Co., 278 NLRB 981 (1986).
KEC affirmatively advances the defense of limitations,
Section 10(b) of the Act, on the basis that it repudiated its
contractual obligation on November 6, 1991, well beyond the
6-month limitations date of February 7, 1992. The General
Counsel does not address this issue in the Government’s
posthearing brief. In support of its position, Respondent cites
and relies on A & L Underground, 302 NLRB 467 (1991).
KEC misapplies the limitations defense to this case be-
cause the November 1991 letter repudiated nothing. Actually
the letter suggests simply that KEC did not intend to renew
and was confused about the CBA’s expiration date. At all
times KEC honored all contractual obligations, paying scale
to Mauldin (Tr. 1:81) and even the increased benefits under
CBA2. (Tr. 1:112.) Until June 4, 1992, KEC did nothing the
Union could have filed a charge over.
By contrast, the employer in A & L Underground ‘‘ceased
complying with the terms of the agreement’’ and expressly
notified the Union that it ‘‘hereby cancels, abrogates, termi-
nates, and repudiates any and all Section 8(f) pre hire agree-
ments. . . . The repudiation shall be effective immediately.’’
The panel majority in A & L Underground ruled that this
was a total contract repudiation which triggered the start of
limitations. The facts and principles of A & L Underground
are inapposite here. Accordingly, I find Respondent KEC’s
limitations defense to be without merit.
Although KEC’s November 1991 letter was not a repudi-
ation, its May 29, 1992 letter (GCX 6), delivered June 4,
1992, certainly was. In light of my earlier finding that KEC
was bound to the 1991–1994 contract, CBA2, it follows that
the May 29, 1992 letter ordinarily would constitute a repudi-
ation, effective the first minute of June 1, 1992, of its obliga-
tion to recognize the Union and its obligation to honor
CBA2 in violation of Section 8(a)(5) and (1) of the Act, and
a discharge that June 4 of Randall W. Mauldin in violation
of Section 8(a)(3) and (1) of the Act.
Aside from its effort to escape the Union based on its one-
man unit affirmative defense, KEC’s primary position, of at-
tempting to show timely cancellation of its assignment of
bargaining authority to NECA and a timely termination of its
CBA with the Union, rests on a flawed assumption. KEC ap-
parently misapprehends its bargaining relationship with the
Union. KEC’s obligation to recognize and bargain with the
Union flows not from a contract permitted under Section 8(f)
of the statute, but from Section 9(a) of the Act based on
IBEW Local 136’s April 27, 1987 election victory and its
August 12, 1987 certification by the Regional Director of
Region 10. Thus, even if KEC had timely canceled the as-
signment of its bargaining rights to NECA, and even if it had
timely terminated its obligation under the 1988–1991 CBA,
KEC still (ordinarily) would have been obliged to recognize
and bargain with the employees’ Section 9(a) bargaining rep-
resentative.
It is true that the Board presumes, until shown otherwise,
that a collective-bargaining relationship in the construction
industry is 8(f) rather than 9(a). Comtel Systems Technology,
305 NLRB 287, 289 (1991); John Deklewa & Sons, 282
NLRB 1375, 1385 fns. 41, 42 (1987). But there is no dispute
here that the Union won an election and thereafter was cer-
tified, thereby establishing its status as the exclusive bar-
gaining representative under Section 9(a) of the Act.
During the term of a CBA the Union is irrebuttably pre-
sumed to be the majority representative. At the expiration of
the CBA, the presumption of majority status becomes rebut-
table. AMBAC International, 299 NLRB 505, 506 (1990).
After a CBA expires, an employer’s obligation to comply
with and give effect to the terms and conditions of employ-
ment embodied in the expired CBA continues until the em-
ployer has fulfilled or been relieved of its duty to bargain
about changing such terms and conditions. Beitler-McKee
Optical Co., 287 NLRB 1311 (1988). None of the exceptions
apply here, such as bargaining to impasse after the CBA’s
expiration, or of withdrawing recognition based on a good-
faith doubt of majority status. See generally, Hardin, 1 The
Developing Labor Law 571–583, 712–714 (3d ed. 1992,
ABA, BNA).
Respecting KEC’s one-man unit affirmative defense, it ar-
gues that Larry Earnest should not be counted in the unit be-
cause he is so closely related to owners of a majority (67
percent) of KEC’s stock. Even if Mauldin is counted after
June 4, the only other person doing bargaining unit work has
1053KIRKPATRICK ELECTRIC CO.
been Larry Earnest. Thus, if Earnest is not counted because
of his family status, the unit is reduced to one man, Mauldin,
for which there would be no duty to bargain under the
Board’s policy. See Teamsters Local 115 (Vila-Barr Co.),
157 NLRB 588 (1966), and cases collected at An Outline of
Law and Procedure in Representation Cases 171–172 second
12–231 (Dec. 1992, NLRB). The rule applies when the unit
consists of no more than a single permanent employee at all
material times. Haas Garage Door Co., 308 NLRB 1186
(1992). Should Larry Earnest be counted or excluded?
Citing such cases as Cerni Motor Sales, 201 NLRB 918
(1973), KEC argues that, as the child and spouse of those
owning 67 percent of KEC’s stock, Earnest should not be
counted. (See other cases collected in An Outline of Law and
Procedure in Representation Cases, 294–295 sec. 19–300
(Dec. 1992, NLRB).) Section 2(3) of the Act excludes from
coverage ‘‘any individual employed by his parent or
spouse.’’ Ideal Elevator Corp., 295 NLRB 347 fn. 2 (1989).
When the employer is a corporation, the Board has applied
the Section 2(3) exclusion to children or spouses of a share-
holder having a 50-percent or more ownership interest in a
closely held corporation. F & R Meat Co., 296 NLRB 759,
769–770 (1989).
Countering, the General Counsel cites Union Plaza Hotel
& Casino, 296 NLRB 918 (1989), where the Board rejected
an employer’s contention that the contract should be deemed
void because the unit contains supervisors. The Government
apparently argues that when parties voluntarily enter into a
CBA covering a unit which the employer knows includes the
son of a majority owner then Earnest should be counted here
and the CBA applied.
However, the Board in Union Plaza did not count the su-
pervisors in the unit, but merely held that the contract’s
terms should be applied to them as well. But the key to find-
ing a bargaining obligation is whether more than one statu-
tory employee remains in the appropriate unit. Searls Refrig-
eration Co., 297 NLRB 133, 135 fn. 2 (1989).
Although there is evidence that KEC has bid on at least
one job in August 1992 using language suggesting that two
employees would be used, it is not clear whether just one ac-
tually would be used, rather than two, at twice as many
hours. Neither is it clear whether the two means two journey-
men or one journeyman and one apprentice.
In any event, it appears that in fact KEC may not have
replaced Mauldin, much less hired a second journeyman. I
find that the bargaining unit consists only of two individuals
(Larry Earnest and Randall Mauldin) on a permanent basis,
and that one of these, Larry Earnest, is not a statutory em-
ployee because his mother and wife own 67 percent of
KEC’s stock. Because the appropriate unit with Mauldin con-
sists of a single employee, I find that KEC had no duty to
bargain with the Union on June 4, 1992, when it, effective
June 1, 1991, withdrew recognition from the Union. Should
the unit expand to two or more permanent statutory employ-
ees during the term of the 1991–1994 CBA, then KEC’s bar-
gaining duty would resume.
I turn now to Mauldin’s termination. KEC’s position(s) on
its termination of Randall Mauldin are a bit bizarre.
Mauldin’s interpretation of the May 29 letter (GCX 6) which
Ellas handed him on June 4, along with his paycheck, is a
reasonable one—he was fired. If Ellas actually intended to
have Mauldin acknowledge that he no longer would be cov-
ered by union fringe benefits, or a CBA with the Union,
while working at KEC, then the notice is poorly worded and
whatever Ellas said did not help to clarity the situation. It
is clear that he did not tell Mauldin that he remained an em-
ployee of KEC.
‘‘In determining whether an employee has been dis-
charged, events must be viewed from the employee’s per-
spective; the test is whether the actions of an employer
would reasonably lead an employee to believe that he has
been discharged.’’ Kinder-Care Learning Centers, 299
NLRB 1171, 1175 (1990). Under this test, I find that
Mauldin reasonably believed that he had been fired.
As I have noted, KEC did not address (either at trial or
on brief) the belated RIF notice dated June 4. I find that no-
tice to have been an afterthought, and I need not speculate
on its purpose. Finding, as I do, that a moving reason for
KEC’s discharge of Mauldin was Mauldin’s mid-May re-
sponse that he would not stay if KEC, in effect, went non-
union, I find that the General Counsel established prima facie
that Mauldin’s discharge violated Section 8(a)(3) and (1) of
the Act.
To the extent that is is relevant to analyze motive when
it is clear that the discharge is over union status, rather than
some alleged conduct of the employee, it became KEC’s bur-
den under Wright Line, 251 NLRB 1083 (1980), to rebut the
Government’s prima facie case. This burden is one of per-
suasion as on an affirmative defense. KEC must show that
it would have taken the same action even absent union con-
siderations. This KEC did not do. For example, KEC made
no effort to show that Mauldin actually was laid off on June
4 because of a lack of work. The limited references to
KEC’s business circumstances after June 4, 1992, do not
focus on the category of apprentice. While such matters will
be relevant to determine backpay (and even to determine
whether, for reinstatement purposes, KEC actually would
have reduced its work force on or after June 4, 1992 by
eliminating the apprentice position), but KEC failed to prove
such matters as part of its affirmative burden to rebut the
General Counsel’s case on the merits. Accordingly, I shall
order KEC to reinstate Randall W. Mauldin and to make him
whole, with interest.
KEC could argue that there was no violation as to Mauldin
because on June 4, 1992, KEC had no duty to apply CBA2
to a one-man unit. Had KEC merely informed Mauldin on
June 4 that it no longer would apply the CBA for that reason
(a true statement of its no-duty situation), and that Mauldin
was welcome to remain at KEC, a voluntary departure by
Mauldin would have been neither a discharge nor a construc-
tive discharge. Ordinarily, a Hobson’s-choice offer to remain,
but without the benefits of an existing CBA, is an unlawful
constructive discharge. Control Services, 303 NLRB 481,
485 (1991); Reliable Electric Co., 286 NLRB 834, 836
(1987). But the ordinary rule would not have been applicable
here, however, where KEC had no duty to apply the existing
CBA. Unfortunately for KEC, Ellas did more that merely in-
form Mauldin and assure him that he was welcome to remain
at KEC. As I have found, Ellas fired Mauldin. Although
KEC had no duty to apply the 1991–1994 CBA because the
bargaining unit consisted of but a single statutory employee
(Mauldin), KEC was not at liberty to terminate that statutory
employee because he wanted the CBA’s benefits applied.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
CONCLUSIONS OF LAW
1. At nearly all times since the Union’s election victory
on April 27, 1987, in Case 10–RC–13486, followed by the
certification of August 12, 1987, IBEW Local 136 has been
the exclusive bargaining representative, within the meaning
of Section 9(a) of the Act, of the employees in the following
appropriate unit:
All construction and maintenance employees employed
by the Employer at its Birmingham, Alabama, facility,
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
2. By withdrawing, effective June 1, 1992, recognition
from IBEW Local 136 and repudiating the 1991–1994 col-
lective-bargaining agreement (CBA), Respondent KEC did
not violate Section 8(a)(5) and (1) of the Act, because the
unit at that time consisted of only one statutory employee,
Randall W. Mauldin.
3. By discharging Randall W. Mauldin on June 4, 1992,
because of union-related considerations, Respondent KEC
has violated Section 8(a)(3) and (1) of the Act.
4. The unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the 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.
The Respondent having discriminatorily discharged Ran-
dall W. Mauldin, it must offer him reinstatement and make
him whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Determination whether the appren-
tice position was permanently eliminated on June 4, 1992,
may be determined at the compliance stage in relation to re-
instatement and backpay.
KEC had no duty to recognize and to bargain with the
Union on and after June 1, 1992, because the unit consisted
only of Mauldin (unlawfully terminated June 4). Larry Ear-
nest was not a statutory employee. Thus, the CBA and its
trust fund provisions may not be applied. Accordingly, the
backpay obligation shall not include reimbursement of the
CBA’s trust funds, or reimbursement of other employees,
otherwise ordered under Ogle Protection Service, 183 NLRB
682 (1970), and Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). Similarly, I shall not order KEC to reim-
burse its employees, under Carthage Sheet Metal Co., 286
NLRB 1249, 1252 fn. 11 (1987), for any expenses ensuing
from KEC’s failure to make contributions to the various
funds established by the 1991–1994 agreement, CBA2.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Kirkpatrick Electric Co., Inc. (KEC), Bir-
mingham, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any
employee for supporting IBEW Local 136 or any other
union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Randall W. Mauldin immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this has
been done and that the discharge will not be used against
him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Birmingham, Alabama office and at its Bir-
mingham jobsites copies of the attached notice marked ‘‘Ap-
pendix.’’3 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
1055KIRKPATRICK ELECTRIC CO.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting IBEW Local 136 or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Randall W. Mauldin immediate and full re-
instatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and WE WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any net in-
terim earnings, plus interest.
WE WILL notify Randall W. Mauldin that we have re-
moved from our files any reference to his discharge and that
the discharge will not be used against him in any way.
KIRKPATRICK ELECTRIC CO., INC.