Watson-Rummell Electric Co.

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1401 (N.L.R.B. 1985)

WATSON-RUMMELL ELECTRIC CO.
Watson-Rummell Electric Co. and International
Brotherhood of Electrical Workers, Local No.
183, AFL-CIO. Case 9-CA-16940
31 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 28 June 1982 Administrative Law Judge
Robert M. Schwarzbart 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, I and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge's conclusion that the
Respondent's attempt in 1980 to withdraw from the
multiemployer bargaining association (NECA) was
untimely because, according to the agreement con-
tained in the 22 October 1975 letter of assent,
NECA was to serve as the Respondent's collec-
tive-bargaining representative and any collective-
bargaining agreement reached between NECA and
the Union was to remain in effect unless the Re-
spondent provided NECA and the Union written
notice at least 150 days prior to the then current
anniversary date of the collective-bargaining agree-
ment. The judge found, and we agree, that since
the Respondent failed to provide the Union with
timely notice of withdrawal, NECA continued to
be the Respondent's collective-bargaining agent
and the Respondent remained obligated to the
terms of the 1 June 1981 collective-bargaining
agreement reached between NECA and the
Union.2
However, we disagree with the judge's addition-
al finding that the Respondent's timely and un-
equivocally phrased letter of termination dated 27
December 1981 must be discounted because of the
continuing nature of the Respondent's unfair labor
practices which began 1 June 1981, and were in
progress at the time of the 27 December 1981
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for ieversing
the findings.
- z Retail Associates, 120 NLRB 338 (1958) We thus find it unnecessary
to reach the judge's finding that the Respondent's 31 December 1980
letter of cancellation was equivocal
1401
letter. The judge based this finding on a misinter-
pretation of S. Freedman Electric, 256 NLRB 432
(1981). It is not Board policy to invalidate an em-
ployer's attempt to withdraw from a multiemployer
bargaining relationship based solely on concurrent
unfair labor practices.
Board policy as established in Retail Associates,
supra, merely requires that an employer's attempt
to withdraw from a multiemployer bargaining rela-
tionship be timely and unequivocal. After having
established these two requirements the Board in
Retail Associates, supra, continued in dicta (120
NLRB at 396):
The decision to withdraw must contemplate a
sincere abandonment, with relative! permanen-
cy, of the multiemployer unit and the em-
bracement of a different course of bargaining
on an individual-employer basis.
and later (ibid.):
The attempted withdrawal cannot be accepted
as unequivocal and in good faith where, as
here, it is obviously employed only as a meas-
ure of momentary expedience, or strategy in
bargaining, and to avoid a Board election to
test the union majority.
As indicated by the holding in S. Freedman Elec-
tric, supra, the validity of a withdrawal attempt
does not hinge on the employer's "embracement of
a different course- of bargaining on an individual-
employer basis." Contrary to the judge's interpreta-
tion, the Board in S. Freedman Electric found the
employer's withdrawal attempt valid because it
was timely and unequivocal under Retail Associates,
supra. The fact that the employer in S. Freedman
Electric did not continue to bargain in good faith
with the union on an individual basis after it with-
drew from the multiemployer bargaining unit did
not taint the otherwise valid withdrawl notice. In-
stead, the employer's unilateral acts and its failure
to recognize the union after its valid withdrawal
from the multiemployer relationship was a separate
violation of Section 8(a)(5) and (1) of the Act.
Accordingly, we reverse the judge's finding that
the Respondent's letter of cancellation, dated 27
December 1981, must be discounted based on the
unremedied unfair labor practices which, were in
progress since 1 June 1981. The Respondent's 27
December 1981 letter satisfied the Retail Associates
requirements because, as the judge found, the letter
was duly received by both NECA and the Union
at least 150 days prior to the 1 June 1982 anniver-
sary date of the current agreement, and expressed a
clear purpose to withdraw from the multiemployer
association. For this reason we find that the Re-
277 NLRB No. 162
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent successfully withdrew from its multiem-
ployer bargaining relationship with NECA and, be-
ginning 31 May 1982, was no longer obligated to
bargain with the Union through NECA.
However, as indicated by the Board in S. Freed-
man Electric, an employer is still obligated, under
normal circumstances, to recognize and bargain
with the union on an individual basis. Beyond al-
leging that the Respondent improperly withdrew
from the multiemployer bargaining relationship, the
instant complaint further alleges that commencing
1 June 1981, the Respondent violated Section
8(a)(5) and (1) of the Act because it refused to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of its employ-
ees.
It is well-established Board policy that an em-
ployer may not unilaterally change a term that is a
mandatory subject of bargaining when the contract
expires unless the parties have bargained to im-
passe. Based on the findings of the judge, the Re-
spondent failed to honor the collective-bargaining
contract from 1 June 1981 to 31 May 1982. There-
after, the Respondent failed to continue the terms
and conditions of employment and to bargain with
the Union for a new collective-bargaining agree-
ment. The Respondent's failure to honor the collec-
tive-bargaining contract until 31 May 1982 consti-
tutes a unilateral change violative of Section 8(a)(5)
and we shall order the Respondent to rescind these
changes and make the Union and its employees
whole for any losses suffered as a result thereof.
Concerning the Respondent's failure to continue
the terms of the contract after 31 May 1982, the
judge did not make specific findings as to which
terms of the preceding contract were actually dis-
regarded or changed. We will therefore order the
Respondent to rescind any unilateral changes in
wages, hours, or other terms and conditions of em-
ployment occurring after 31 May 1982. However,
we do not find that unilaterally discontinuing the
dues-checkoff provisions of the contract violates
Section 8(a)(5). Bethlehem Steel Co., 136 NLRB
1500 (1962), enfd. in relevant part 320 F.2d 615 (3d
Cir. 1963); Hassett Maintenance Corp., 260 NLRB
1211 (1982).
ORDER
The National Labor Relations Board orders that
the Respondent, Watson-Rummell Electric Co.,
Lexington, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and, on request, to bar-
gain collectively concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment with International Brotherhood of Electrical
Workers, Local No. 183, AFL-CIO (the Union), as
the exclusive bargaining representative for employ-
ees in the following appropriate unit:
All employees engaged in performing electri-
cal installation employed by the Respondent
who work at and out of its Lexington, Ken-
tucky, facility, excluding all other employees,
and all professional employees, guards and su-
pervisors, as defined in the Act.
(b) Refusing to accept, give effect to, and imple-
ment the terms and conditions of the collective-
bargaining agreement negotiated between the
Union and the Central Kentucky Chapter, National
Electrical Contractors Association (NECA), effec-
tive 1 June 1981 through 31 May 1982.
(c) Failing or refusing to make payments to the
pension, vacation, health and welfare, and other
trust funds as required by the above-described col-
lective-bargaining agreement.
(d) Unilaterally altering any of the terms and
conditions of employment of its employees in the
above bargaining unit which are specified in the
above-described collective-bargaining agreement.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the
above-named labor organization as the exclusive
representative of all the employees in the above ap-
propriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) On the Union's request, and consistent with
this decision, revoke any unilateral changes made
effective on and after 1 June 1981, with regard to
the wages, hours, and terms and conditions of em-
ployment of all employees in the appropriate
above-described unit.
(c) Give retroactive effect, commencing 1 June
1981, to all the terms and conditions of the collec-
tive-bargaining agreement, effective 1 June 1981
through 31 May 1982, and consistent with this de-
cision continue to give effect to these terms and
conditions of employment until the Respondent and
the Union reach a good-faith impasse or execute a
new collective-bargaining contract, or the Union
refuses to bargain in good faith.
(d) Make whole its employees in the aforesaid
bargaining unit for any loss of pay and benefits
which they may have suffered by reason of the Re-
WATSON-RUMMELL ELECTRIC CO.
spondent's refusal to abide by and give effect to the
above collective-bargaining agreement which ex-
pired on 31 May 1982 and any unilateral changes
thereafter. The Respondent will make employees
whole in the manner set forth above in the remedy
section of this decision. No part of the Order
herein shall be construed as forcing or requiring
the Respondent to subtract or withdraw any bene-
fits heretofore granted to unit employees commenc-
ing 1 June 1981.
(e) Pay to the appropriate trust funds the contri-
butions required by the above-described agreement
to the extent that such contributions have not been
made or that the employees have not otherwise
been made whole for their ensuing medical and
other expenses, and continue such payments until
the Respondent negotiates in good faith with the
Union to an agreement or to a good-faith impasse,
or until the Union fails to bargain in good faith.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Lexington, Kentucky facility
copies of the attached notice marked "Append"x."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
1403
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and, on re-
quest, to bargain collectively concerning rates of
pay, wages , hours, and other terms and conditions
of employment with International Brotherhood of
Electrical Workers, Local No. 183, AFL-CIO as
the exclusive bargaining representative for our em-
ployees in the following appropriate unit:
All employees engaged in performing electri-
cal installation employed by Watson-Rummel
Electric Co . who work at and out of its Lex-
ington , Kentucky facility, excluding ; all other
employees, and all professional employees,
guards and supervisors , as defined in the Act.
WE WILL NOT fail or refuse to make payments to
the Union 's pension, vacation , health and welfare,
and other trust funds as required by the collective-
bargaining agreement , effective 1 June 1981
through 31 May 1982 , between the above-named
Union and the Central Kentucky Chapter , National
Electrical Contractors Association.
WE WILL NOT unilaterally alter any of the terms
and conditions of employment of our bargaining
unit employees , which terms are specified in the
above collective-bargaining agreement and which
survived the expiration of that agreement on 31
May 1982.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request , bargain
with the above-named labor organization as the ex-
clusive bargaining representative of all our employ-
ees in the above appropriate unit with respect to
rates of pay, wages, hours and other terms and
conditions of employment and WE WILL give
effect, retroactive to 1 June 1981, to all the terms
and conditions of the above 1981-1982 collective-
bargaining agreement , and continue such terms in
effect until a new agreement is reached, there is a
good -faith impasse in bargaining, or the Union fails
to bargain in good faith,
WE WILL, on request, revoke any and all unlaw-
ful unilateral changes made effective by us on and
after 1 June 1981 with regard to the wages , hours,
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and terms and conditions of employment of all em-
ployees in the above-described unit.
WE WILL make whole our employees and any
and all unit employees hired on or after 1 June
1981, with interest, for any loss of pay benefits suf-
fered because of our failure to apply the terms of
the 1981-1982 collective-bargaining agreement
since its effective date or our failure to continue to
give effect to that agreement after 31 May 1982.
Nothing herein shall be construed as forcing or re-
quiring us to subtract or withdraw any benefits
heretofore granted our bargaining unit employees
on or since 1 June 1981 or to continue terms and
conditions of employment that did not survive the
termination of the contract on 31 May 1982.
WE WILL pay to the appropriate union trust
funds the contributions required by the above col-
lective-bargaining agreement to the extent that
such contributions have not been made or that the
employees have not otherwise been made whole
for their ensuing medical and other expenses and
we will continue such payments until we negotiate
a new contract with the Union, there is a good
faith impasse, or the Union fails to bargain in good-
faith.
by the General Counsel and the Respondent,2 have been
carefully considered.
On the entire record, the briefs of the parties, and my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Kentucky corporation, is engaged
as an electrical contractor in the construction industry in
Lexington, Kentucky. During the 12 months preceding
issuance of the complaint, a representative period, the
Respondent, in the course and conduct of its business op-
erations, purchased and received at its Kentucky jobsites
products, goods, and materials valued in excess of
$50,000 from Kentucky firms which, in turn , received
those same products, goods, and materials directly from'
points outside the State of Kentucky.
In accordance with the foregoing conceded facts, I
find that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
WATSON-RUMMELL ELECTRIC CO.
Cassius B. Gravitt Jr., Esq., for the General Counsel.
Julius Rather, Esq. (Denney, Morgan & Rather), of Lex-
ington, Kentucky, for the Respondent.
Jack Parkey, Business Manager, of Lexington, Kentucky,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge. This case was heard in Lexington, Kentucky, on
May 3, 1982, on a complaint issued July 16, 1981,1 based
on a charge filed on June 5 by International Brotherhood
of Electrical Workers, Local No. 183, AFL-CIO (the
Union). The complaint alleges that Watson-Rummell
Electric Co. (the Respondent) improperly withdrew rec-
ognition from the Union as -bargaining representative of
its employees in a multlemployer bargaining unit and,
thereafter, refused to continue to abide by and to apply
the terms of a collective-bargaining agreement between
the Union and the multiemployer bargaining association,
in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act. The Respondent, in its answer,
denies the commission of unfair labor practices.
All parties appeared at the hearing, were given the op-
portunity to present evidence, to examine and cross-ex-
amine witnessess, and to file briefs. Briefs, thereafter filed
I All dates are within 1981 unless stated to be otherwise
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent, established in 1974, is an electrical
contractor in the construction industry in Lexington,
Kentucky, employing about eight employees.
On October 22, 1975, the Respondent, through Ronald
E. Watson, then its vice president and secretary-treasur-
er,3 executed a letter of assent, effective that date, au-
thorizing Central Kentucky Chapter, National Electrical
Contractors Association, Inc. (NECA) to act as the Re-
spondent's "collective bargaining representative for all
matters contained in or pertaining to the current ap-
proved . . . labor agreement between" NECA and the
Union. This letter of assent, which was consistent with
the prior practice of employers designating NECA as
their collective-bargaining representative in subscribing
to the labor agreement between NECA and the Union,
by its terms, was to remain in effect until terminated by
employers who give written notice to NECA and to the
Union "at least one-hundred-fifty (150) days prior to the
then current anniversary date of the aforementioned ap-
proved labor agreement." The Respondent's 1975 letter
of assent also was signed by the then-business manager
for the Union.
2 A reply brief submitted by the Respondent in addition to its initial
brief is rejected as the Board's Rules and Regulations do not provide for
the filing of reply briefs and because there had been no prior consent by
other parties for the consideration of same See D.HI. Enterprises, 239
NLRB 1037 at 1038 fn 1 (1978).
3 Since June, Watson has been president and chief executive officer of
the Respondent
WATSON-RUMMELL ELECTRIC CO.
The collective-bargaining agreement in effect when
the Respondent's letter of assent was executed was suc-
ceeded by another contract between the same parties, ef-
fective June 1, 1978, until May 1981. The current con-
tract between NECA and the Union is from June 1,
1981, until May 31, 1983.4
In addition to establishing wage rates for the various
job classifications covered, the 1978-1981 and 1981-1983
contracts between NECA and the Union also specified
employer contributions on behalf of employees to the
Union's funds for health and welfare, vacation, pension,
and the Joint Apprenticeship and Training Trust Fund.
Additional employer contributions are specified for the
National Employee's Benefit Fund (NEBF) and the Na-
tional Electrical Industry Fund. Provision also was
made, where authorized, for the checkoff and remission
by employers of union dues. These agreements detail the
operation by the Union of an exclusive job referral
system and a grievance procedure. The Respondent,
until its June 1 expiration, fully abided by the terms of
the 1978-1981 agreement, utilizing the hiring hall as its
only source for employees and making the contractually
provided monetary contributions
Jack Parkey, the Union's business manager, testified on
January 13,5 he met with Ronald E. Watson, currently
the Respondent's president, and Glenn Merriman, NECA
chapter manager,' at a local restaurant. According to
Parkey, Watson told him that he wanted to talk about
his Company, their association, and the Union. Watson
continued that he did not feel that he could continue to
operate as before but was going to have to have conces-
sions to remain in business. Watson asked if his Company
could be allowed to assign two or, perhaps, three ap-
prentices to each journeyman/wireman employed.
Parkey declined, replying that he would try to work
with Watson within the available guidelines but could
not afford to give such a concession to any contractor
because the membership would become flooded by ap-
prentice wiremen, destroying the entire contract struc-
ture.7 Parkey related that as they were leaving, Merri-
man told him that he had a letter on Watson and was
going to try to hold him. Merriman did not explain the
contents of the letter and Parkey did not ask.
On February 17, Merriman hand-delivered to Lola
DeJarnette, the Union's office secretary, the Union's
copy of a letter, dated December 31, 1980, signed by
Watson for the Respondent, that had been addressed to
Merriman at NECA. The letter indicated that carbon
copies had been sent to Parkey and to Julius Rather, the
Respondent's attorney. At DeJarnette's request, Merri-
man signed the lower right-hand corner of this letter to
4 The Respondent's conduct contradicts the contention in its brief,
denied by the Union, that new letters of assent are necessary in order to
bind member contractors to succeeding collective-bargaining agreements
replacing those in force when their initial letters of assent were executed
Here, the Respondent, without signing a new letter of assent, continued
to apply the terms of the 1978-1981 contract until expiration
H The above date was provided in the record by the Union's office sec-
retary, Lola DeJarnette, from a calendar notation
8 As Watson also was NECA chapter president, both he and Merriman
were present as association representatives
' Under the collective-bargaining agreement, no more than one ap-
prentice may be indentured to three journeymen/wiremen
1405
acknowledge that it had been delivered to the Union on
February 17. This letter was as follows:
This is to advise you, it is our desire at this time
to terminate our above referenced letter of Assent-
A dated October 22, 1975.
Parkey and DeJarnette8 both testified that this letter,
when delivered on February 17, was the first notice re-
ceived by the Union of the Respondent's desire to ternii-
nate its letter of assent to the collective-bargaining agree-
ment.
Parkey, in a written answer to the Respondent dated
February 20, rejected Watson's letter of termination as
untimely on the ground that the Union had not been af-
forded notice of such intent at least 150 days prior to the
anniversary date of the agreement, as required in the
letter of assent. Parkey pointed out that February 17, the
date of receipt of the notice, was only 103 days before
the June 1 anniversary date9 and, as the letter of assent
had been signed both by Watson, as an employer, and
the then authorized officer of the Local Union, it should
have been obvious to Watson that valid termination re-,
quired direct notification to the Union within the appro-
priate time period. Parkey concluded his letter by noting
that the Union considered the labor agreement between
the Respondent and the Union to be binding until prop-
erly terminated. Parkey, replying on March 27 to later
correspondence on the same matter from the Respond-
ent's attorney, Rather, repeated his position concerning
the untimeliness of the letter delivered February 17.
On March 3, Merriman revisited the Union's office
and met with Parkey.1 ° Marriman explained to Parkey
that Watson had delivered the December 31, 11980 letter
of termination to his office late that day, together with
the Union's copy, and that it had been Merriman's fault
that the letter had not reached the Union until February
17. He repeated two or three times that the late delivery
to the Union had been his fault and that Parkey should
honor the letter. Merriman related that he had not
brought it to the Union in the hope of trying to keep
Watson "in good grace."
Parkey answered that the notice was untimely because
it did not reach the union hall within the permissible
period and, accordingly, the Union had not been notified
at least 150 days before the contract anniversary date in
accordance with the terms of'the letter of assent Merri-
man reiterated that the circumstances were different as it
had been his fault that the letter had not arrived. Parkey,
however, persisted that the letter of assent actually was
between the Respondent and the Union and that the can-
cellation notice should have been addressed to himself as
union business manager with a copy delivered to Merri-
man, not vice versa, as had been done. Merriman stated
a DeJarnette regularly recieves and processes the Union's incoming
mail
9 To have been timely, the Respondent's written notice would have to
have been received by both NECA and the Union on or before Decem-
ber 31, 1980.
to The account of the March 3 incident is a synthesis of testimony by
Parkey and DeJarnette, whose desk was situated to enable her to witness
the conversation between Parkey and Merriman
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he could understand that point but that he thought
Parkey should accept the letter, that it had been timely,
that he had been trying to save the Respondent and did
not want the Respondent to drop out of NECA. He re-
lated that he had been trying to get Watson to talk to
Parkey about his situation but had not yet been success-
ful.
Parkey answered that the Union had had problems
concerning fringe benefits with other contractors and he
did, not want to see Watson get into that kind of situa-
tion. Watson could avoid a bad time by complying with
his contract . Otherwise, there could be litigation and li-
abilities . Merriman urged that Parkey be compassionate
enough to observe a difference here, as it was Merriman,
not Watson, who had not delivered the letter to Parkey.
Parkey, however , told Merriman that it had been the Re-
spondent's obligation , not Merriman 's, to deliver the
letter to the Union and suggested that the parties sit
down and bury their differences as they had done many
times before so that future trouble might be avoided.
However, Parkey considered the contract to be valid
and enforceable against the Respondent until the 1983
expiration date and that , until then, the Respondent was
liable for all wages, fringe benefits , and other terms of
the collective -bargaining agreement . Merriman replied
that he would talk to Watson and, hopefully, could get
matters straightened out.' l
Since June 1, on expiration of the 1978- 1981 agree-
ment, the Respondent has ceased to apply the terms of
the succeeding 1978-1981 contract between NECA and
the Union. Accordingly, the Respondent has discontin-
ued obtaining employees through the Union 's exclusive
job referral-system , and has stopped all monetary contri-
butions provided for in the agreement , including the
checkoff and remission of working dues. The Respond-
ent contends that its withdrawal was timely and since
May 31 is no longer bound by the agreement.
Watson testified that earlier, on September 10, 1980,
the Respondent had mailed the following speedletter 12
addressed to NECA on the subject of its "letter of
assent, dated 10-22-75 IBEW Form 302":
This letter is to advise you effective this date we
wish to terminate our above subject letter of assent
dated Oct. 22, 1975, with & between Watson-Rum-
mell Electric Co. and I.B.E.W. Local 183, Lex.,
KY.
NOTE:
Copy mailed to Local 183 this date.
Watson explained that the speedletter had been sent
when he had become upset at certain difficulties his
11 Merriman 's denial that he had approached the Union on March 2,
or at any time, to urge acceptance of the Respondent's December 31
letter is not credited Descriptions of that incident by Parkey and DeJar-
nette were convincingly detailed and consistent with other evidence, in-
cluding the late delivery by Merriman
i2 A speedletter , as described by Watson, is a brief message written on
a printed form with-two differently colored, detachable like forms, sepa-
rated by carbon papers for simultaneous copies One copy supposedly is
retained for the sender 's file and the original and remaining copy are dis-
patched by first-class mail -
Company was experiencing with the Union at the
project where the Respondent then was working Al-
though Merriman acknowledges having received the
September 19 speedletter,13 Parkey and Deiarnette
denied that it was seen or received until months later
when it came to the Union's office as an attachment to a
March 30 letter from attorney Rather
Watson related that on December 31, 1980, he wrote
the above-quoted termination letter as a second notice to
that effect, and hand-delivered it that day to Merriman at
NECA around 4 p.m., together with an additional copy
for the Union. As the Union's office had closed early on
December 31, by noon or 1 p.m., for New Year's Eve, a
later attempt that afternoon to bring the letter to the
Union had been unsuccesful and the Union's copy was
left with Merriman.14 As noted, Merriman did not again
try to deliver this letter to the Union until February 17.
Watson did not check with the Union after December
31, 1980, to verify delivery.'-'
Watson testified that he had requested the restaurant
meeting with Parkey, to which he was accompanied by
Merriman, because his Company was broke at the time
and could not continue in business under the terms en-
forced by the Union. 16
Watson told Parkey,at the restaurant that his Compa-
ny had gone as far as it could and had sent its letter can-
celing the contract. He informed Parkey that he would
like to stay in the Union if at all possible, but could not
do so because of the way Parkey was dealing with small
contractors. If Parkey would not make any changes, the
Respondent would hold to its letter of cancellation.
Watson then asked that Parkey give the Respondent a
rate which would make it competitive with nonunion
contractors. When Parkey refused, Watson declared that
his Comapny would not withdraw its letter of concella-
tion as sent, and would get out of the contract as ofJune
1.17
13 Merriman did not independently recall whether the speedletter was
hand-delivered or received in the mail.
34 There is no contention that Merriman had been authorized by the
Union to receive correspondence on its behalf
15 Watson explained that he did not refer to the September 19 speed-
letter in his December 31 letter of cancellation or in subsequent discus-
sions with Parkey concerning this matter because he had forgotten about
it Merriman, too, recalled that there had been no mention of the speed-
letter when Watson had delivered the December 31 letter to him and that
no reference was made to it until in connection with the present case
16 Watson and Merriman recalled the meeting occurring on January 2
or 3, while DeJarnette, as noted, had recorded the date as January 13 As
none of these given dates fell beyond the requisite 150-day notice period
before the contract anniversary date, and as no new written notice was
provided during that meeting, it is not necessary to resolve the conflict in
dates to reach a determination in this matter
11 Contrary to Parkey, I find that the Respondent had made clear ref-
erence to a letter of cancellation during the restaurant meeting as Parkey
subsequently instructed DeJarnette concerning the procedure to be used
should such a letter be received This directive was followed on Febru-
ary 17 when DeJarnette had Merriman sign an acknowledgement of the
delivery date to the Union on the bottom of the Respondent's December
31 letter However , as both Watson and Merriman concede that no refer-
ence had been made at the time to the forgotten September 19 speedlet-
ter, even among themselves , and as it was not mentioned in the Respond-
ent's December 31 letter, I find that the December 31, 1980 letter of can-
cellation was the only such communication referred to during the restau-
rant meeting
WATSON-RUMMELL ELECTRIC CO.
On December 27, months after ceasing to apply the
terms of the contract, the Respondent, over Watson's
signature, sent the following letter to the Union, with
copies to Merriman at NECA and its attorney, Rather: i s
Re: Labor agreement
LETTER OF ASSENT-A
Dated Oct. 22, 1975
We do not believe there is any necessity to do so,
but we are hereby giving notice that we are termi-
nating our agreement with I.B.E.W., Local #183.
B. Discussion and Concluding Finding
In Retail Associates" the lead case concerning with-
drawal from multiemployer bargaining, the Board, in rel-
evant part, held that:
the intention by a party to withdraw must be un-
equivocal, and exercised at an appropriate time. The
decision to withdraw must contemplate a sincere
abandonment, with relative permanency, of the mul-
tiemployer unit and the embracement of a different
course of bargaining on an individual-employer
basis. The element of good faith is a necessary re-
quirement in any such decision to withdraw, be-
cause of the unstabilizing and disrupting effect on
multiemployer collective bargaining which would
result if such withdrawal were permitted to be
lightly made. The attemped withdrawal cannot be
accepted as unequivocal and in good faith where
. .. it is obviously employed only as a measure of
momentary expedience, or strategy in bargain-
ing....
[t]he timing of an attempted withdrawal from a
multiemployer bargaining unit . . . is an important
lever of control in the sound discretion of the
Board to ensure stability of such bargaining rela-
tionships. We would accordingly refuse to permit
the withdrawal of an employer or union from a
duly established multiemployer bargaining unit,
except upon adequate written notice given prior to
the date set by the contract for modification, or to
the agreed-upon date to begin the multiemployer
negotiations. Where actual bargaining negotiations
based on the existing multiemployer unit have
begun, we would not permit, except on mutual con-
sent, an abandonment of the unit upon which each
side has committed itself to the other, absent unusu-
al circumstances.
Contrary to the Respondent, the surrounding circum-
stances make clear that the above-quoted speedletter of
September 19, 1980, was not a timely or unequivocal
notice to the Union of the Respondent's desire to with-
draw from multiemployer bargaining at the expiration of
the then-current contract on May 31. Watson's total sub-
18 The record shows that the December 27 letter was received by
NECA and the Union on December 31
19 120 NLRB 388, at 393-395 (1958)
1407
sequent disregard for the speedletter, in not referring to
it during his restaurant meeting with Parkey and Merri-
man in early 1981, in his conversations with Merriman
concerning withdrawal in December 1980 and later, or
in his letter on December 31, 1980, materially supports
the Union's denial that it had seen or received service of
same before the following March. Watson's explanation
that he had not thereafter referred to the speedletter at
critical opportunities because he had forgotten same
would be incredible an had service thereof been properly
made in view of the professed anger at the Union which
had prompted him to write the letter, the assertedly per-
ilous financial condition of his Company, blamed in good
measure on onerous contract terms, and his general em-
phasis on withdrawal from multiemployer bargaining.
Watson's interest in gaining relief from the strictures of
the contract was so great that it is extremely difficult to
believe that he would not thereafter have relied on it had
it been sent to the Union. This is particularly true be-
cause, when he met with Parkey and Merriman at the
restaurant in early 1981, Watson knew that his December
31 letter had not actually been delivered to the Union on
that cutoff date and that the earlier speedletter could
have been his only basis for termination . 20 Because
Watson never acted as though the September 19 speed-
letter actually had been sent to the Union at the time
represented, the Union' s denial of receipt of same ' is
credited, To afford efficacy to that document in these
circumstances would be to give it greater significance
than had the Respondent.2 r
Not less compelling than untimeliness was the equivo-
cal nature of the Respondent's withdrawal efforts, bear-
ing on the Respondent's good faith.22 At their restuarant
meeting, Watson, by his own testimony, did not adhere
to any previously issued letter of withdrawal but related
that he had advised Parkey that if at all possible, his
Company would like to stay in the Union, but could not
do so in view of the way Parkey had been dealing with
the small contractors. Watson continued that if Parkey
20 The Respondent's inference that the December 31 letter might have
been received by the Union through officials other than Paiker or DeJar-
nette is not supported in the record.
21 In also concluding that the December 31, 1980 letter of withdrawal
was untimely in affording insufficient actual notice as of the February 17
delivery date, I find no merit to the Respondent's argument that it was
the Union's responsibility that delivery could not be made as its office
had been closed earlier in the afternoon of December 31 Although the
early closing did marginally reduce the period available for timely serv-
ice, the Respondent had months to effectuate proper service in advance
of the deadline, but, in fact, did not approach NECA with the letter until
around 4 p in, before ever attempting delivery to the Union The Re-
spondent is chargeable with knowledge that many offices close early on
Christmas and New Years Eves and the risk of untimely action must be
on those who would wait until the closing minutes of those dates to meet
contractual deadlines. In fact, in the following year, the Respondent, as
will be considered, was able to effectuate service of its December 27
letter of withdrawal on December 31
22 Retail Associates, supra; S. Freedman Electric, 256 NLRB 432 (1981),
enfd 668 1.2d 291 (7th Cir 1981), rehearing denied Dec 21, 1981 In S.
Freedman Electric, supra, the Board considered and, inferentially, upheld
the validity of an apparently identical letter of assent utilized by a sister
I B.E W local union to bind contractors to multiemployer bargaining.
The terms of the letter of assent there, too, required at least 150 days
written notice of withdrawal to NECA and the Union prior to the then-
current anniversary date of the labor agreement.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not make any changes, then the Respondent
would hold, to its letter of cancellation. Accepting Wat-
son's version of this meeting, it was only after Parkey
had refused to give the Respondent the then-requested
rate concession that Watson announced that he would
not withdraw the Respondent's letter of cancellation. As
noted by Administrative Law Judge Leiner in his Board-
approved decision in S. Freedman Electric, supra 23
Thus, in Retail Associates, the expression "good
faith" relates back, not to the motivation of the
withdrawing party . . . but, rather, only to finding
that the withdrawal was not of a permanent nature
and merely tactical in order to achieve ends detri-
mental to the otherwise stable multiemployer bar-
gaining obligation. In short, "good faith" measures
only the unequivocal nature of the withdrawal.
Since the withdrawal was tactical, it was not "un-
equivocal."
Watson's description of what he had said at the restau-
rant meeting -supports the conclusion that even if notice
of the Respondent's purported withdrawals from multi-
employer bargaining of September 19 and December 31
had been timely served, which they were not, such no-
tices did not announce a firm stance concerning with-
drawal but merely had been bargaining devices to exact
contract concessions from the Union. It was, only after
the later effort to gain concessions had failed that the
Respondent became steadfast in seeking to end its con-
tract obligations. As the previously asserted withdrawal
attempts were thus rendered tactical and equivocal, they,
in any event, could not have validly served their pur-
pose.
The exceptions under Retail Associates, supra, as noted
in Callier's Custom Kitchens,24 which permits untimely
withdrawal from multiemployer bargaining groups under
unusual circumstances" has been limited by the Board to
two basic situations-first, where the withdrawing em-
ployer can establish that it is faced with dire economic
circumstances, such as imminent bankruptcy, and,
second, where the multiemployer bargaining unit has dis-
sipated to the point where the unit, itself, is no longer a
viable bargaining entity.25 These considerations are not
applicable. No claim has been made that the unit had dis-
sipated to any' degree and, beyond Waton's bare asser-
tions of financial hardship, no evidence was adduced to
meaningfully establish that- the Respondent was faced
with such serious economic circumstances as would
come within the "unsuaal circumstances" exception per-
mitting untimely withdrawal. To prevent destabilizing
the multiemployer bargaining relationship, as noted in
Callier, such withdrawals are limited "to the most ex-
treme situations." As found in Michael J. Bollinger Co..,"
23 256 NLRB 432 at 436 (1981).
24 243 NLRB 1114, 1117 (1979).
25 An additional situation noted by certain courts of appeals, bargain-
ing impasse, is not relevant here See NLRB v. Custom Sheet Metal C0,
666 F.2d 454 (10th Cir. 1981), denying enf of 243 NLRB 1102 (1979).
2 8 252 NLRB 406, 407 (1980).
such withdrawals are not justified merely on assertion of
economic difficulty in meeting the terms of the multiem-
ployer collective-bargaining agreement. .
I am not persuaded by the Respondent's principal re-
maining argument that formal notice of withdrawal was
not required here as other NECA contractors had been
able to withdraw from the multiemployer contract at
will without such notice. Parkey's testimony that he had
been diligent in enforcing the contract is strongly sup-
ported by the Respondent's self-described conduct in as-
sertedly writing three letters seeking withdrawal and in
meeting with Parkey to request contract concessions.
Moreover, Watson continued to abide by the contract,
however onerous, for almost 6 years before attempting
cancellation and then only after failing to obtain desired
concessions. Merriman, too, testified that on a number of
occasions he, also, had discussed with Parkey the possi-
bility of union concessions. From the record, if the
Union had been so lax in administering its contract to
enable contractors to disregard and even to abandon the
agreement at will without recourse to the requisite with-
drawal procedures, this had not been apparent either to
Watson, as NECA chapter president, or to Merriman, as
NECA's full-time chapter manager. The Respondent's
argument in this regard is completely inconsistent with
its own relevant conduct when events were in progress,
even when there were strong economic incentives to do
otherwise. The Union's continued pursuit of its asserted
bargaining rights through this proceeding further serves
to counter the Respondent's contention.
For the above reasons, I find that since June 1, the Re-
spondent has refused to bargain with the Union by its
withdrawal from multiemployer bargaining following un-
timely and equivocal notice of termination, in violation-
of Section 8(a)(5) and (1) of the Act. These sections have
been further violated by the Respondent's refusal since
that date to obtain employees through the Union's exclu-
sive job-referral system and to continue its monetary and
other obligations under the contract, including contribu-
tions to the funds for pensions, health and welfare, vaca-
tions, NEBF, the Industry Fund, and by discontinuing
the checkoff and remission of dues. The discontinuation
of benefits such as pension, health and welfare, and vaca-
tion consititute unilateral changes profoundly affecting
the terms and conditions of employment of the Respond-,
ent's employees. 27
Had not these serious, unremedied unfair labor prac-
tices been in progress since June 1, the Respondent's
notice, dated December 27, of its intent to withdraw
from multiemployer bargaining, the third document to
that effect, could have enabled termination of its contract
obligations after May 31, 1982, although the agreement is
not scheduled to expire for another year. It is clear that
the December 27 letter was- duly received by both
27 Although the complaint did not specifically include the conceded
unilateral changes in the terms and conditions of employment of bargain-
ing unit employees among the alleged bargaining violations, such unilat-
eral changes were a direct result of the Respondent's refusal to abide by
and to apply the terms of the currect collective-bargaining agreement and
therefore were intrinsically related to matters actually alleged and litigat-
ed at the hearing.
WATSON-RUMMELL ELECTRIC CO.
NECA and the Union at least 150 days prior to the June
I anniversary date of the current agreement, and ex-
pressed a clear purpose which, unlike earlier notices, was
not rendered equivocal by the Respondent's subsequent
conduct.28
This construction, which, on these facts, would have
recognized the Respondent's right to withdraw from the
contract on the first anniversary date, rather than on ex-
piration , although opposed by the Union, is consistent
with the intent of the parties, as expressed in the letter of
assent, the language of the contract, and the Retail Asso-
ciates decision, where the Board noted that withdrawal
might be permitted "upon adequate written notice give
prior to the date set by the contract for modification."29
Had the parties intened to preclude withdrawal before
the expiration date of the contract, the language in the
letter of assent readily could have specified a cancella-
tion notice period in advance of, rather than before, the
anniversary date. The only apparent significance then in
fixing a time frame for notice related to the contract an-
niversary date would be to allow for effective withdraw-
al at that time.
In accord with the above-noted phrase from Retail As-
sociates, the 1981-1983 contract provides for possible ne-
gotiated modification should notice of the desire for
same be afforded in advance of the anniversary date of
the agreement . Article I, section' 1.02(a), requires that
either 'party desiring to change the 'agreement must
notify the other in writing at least 90 days prior to the
contract anniversary date, while section 1.02(d) provides
for submission of unresolved issues in negotiations to the
Council on Industrial Relations prior to the anniversary
date of the agreement. Accordingly, the agreement lan-
guage supports the finding that the anniversery date
during the 2-year contract was to be a point of reference
and that, on completed timely and unequivocal notice in
advance, certain contract changes could occur before ex-
piration. Included among such changes, could have been
the Respondent's right to withdraw from multiemployer
bargaining as of May 31, 1982. -
However, in S. Freedman Electric, supra, it was found
that withdrawal from a sister IBEW-NECA multiem-
ployer contract, timely, unequivocally phrased, and suffi-
cient -when sent, was rendered invalid by the Respondent
contractor's later unlawful and equivocating conduct.
The withdrawal notice was held, in effect, to have been
tainted by what was there found to be an anticipatory re-
fusal to bargain . Here, the Respondent's unfair labor
practices already were in full swing- when the December
27 letter of withdrawal was sent and cannot be separated
therefrom. Even more strongly than in S. Freedman Elec-
tric, where the withdrawal was found invalid by a rela-
tion back of subsequent unlawful conduct, the violations
here already were in progress and the Respondent's De-
cember 27 letter was tainted when written and mailed. It,
therefore, must be discounted.
29 As found in S. Freedman Electric, supra at 435 fn 2, an employer
has no duty to express willingness to bargain on an individual unit basis °
with-a union in order for its withdrawal from the multiemployer unit to
be effective,
99 See, supra, 120 NLRB at 395.
1409
Accordingly, the Respondent has not bargained in
good faith with the Union since June 1, 1981, an 'obliga-
tion which continues forward notwithstanding the De-
cember 27, 1981 letter of withdrawal from multiemploy-
er bargaining.
In summary, by its improper withdrawal of recogni
tion and multiemployer bargaining from the Union, the
discontinuation of its contractual obligations and the re-
sultant unilateral changes to the terms and conditions of
employment of its bargaining unit employees , the Re-
spondent has engaged in violations of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE `
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices, oc-
curring in connection with its operations described' in
section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization -within the mean-
ing of Section 2(5) of the Act.
3. The Union is, and has been at all material times, the
exclusive bargaining representative of the employees of
the Respondent in the following contractual unit appro-
priate for purposes of collective bargaining with the
meaning of Section 9(b) of the Act:
All employees engaged in performing electrical
installation employed by the Respondent who work
at and out of its Lexington, Kentucky facility, ex-
cluding all other employees, and all professional
employees, guards and supervisors as defined in the
Act.
4. The Respondent violated Section 8(a)(5) and (1) of
the Act by repudiating on and after June 1,"1981, its obli-
gation to recognize and bargain 'with the Union in the
above unit, by thereafter -failing and refusing to abide by
and to apply terms of the collectiveebargaining agree-
ment between NECA and the Union to,its employees in
the above-described bargaining unit, and by unilaterally
changing the terms and conditions of employment of
such employees as a result of such conduct.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in- cer-
tain unfair labor practices, I will recommend that the Re-
spondent cease and desist and take certain action de-
signed to effectuate the policies of the Act.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the Respondent since June 1, 1981,
has been violating Section 8(a)(5) and (1) of the Act, fol-
lowing its untimely withdrawal from multiemployer bar-
gaining, by refusing to recognize and bargain with the
Union and refusing to abide by and to apply the terms
and conditions of -the 1981-1983 collective-bargaining
agreement, effective June 1, 1981, signed by the Union
and NECA, I find that the Respondent should be re-
quired to recognize and, on request, bargain in good
faith with the Union and revoke any or all unilateral
changes in the terms and conditions of employment of
bargaining unit employees implemented since June 1,
1981. The Respondent should immediately implement
and apply the 1981-1983 agreement reached between the
Union and NECA and give it retroactive effect as of
June 1, 1981, 30 making its employees whole for any loss
of earning suffered since then as a result of its failure to
apply the agreement. Backpay is to be computed as set
forth in Ogle Protection Service, 31 with interest as pre-
scribed in Florida Steel Corp.32 Accordingly, unit em-
ployees hired after June 1, 1981, should be made whole
as a result of the Respondent's failure to apply to them
the terms and conditions of the applicable collective-bar-
gaining agreement. Nothing here is to be construed as
authorizing the Respondent to recoup wages or benefits
already received by its employees. Additionally, it is rec-
ommended that the Respondent be directed to make pay-
ments, retroactive to June 1, 1981, into the various funds
on behalf of those employees in the unit for whom such
contributions would have been made had the Respondent
not unlawfully repudiated the collective-bargaining
agreement.
[Recommended Order omitted from publication.]
31 183 NLRB 682 (1970)
so Preston H. Haskell Co, 238 NLRB 943, 951 (1978), enf denied 616 32 231 NLRB 651 (1977). See generally Isis Plumbing Co, 138 NLRB
F 2d 136 (5th Cir 1980); Teckwall Corp., 253 NLRB 187, 195 (1981 ) 716 (1962)