Midland Electrical Contracting Corp.

National Labor Relations Board - Administrative Judge Opinions

Feb 1, 2016

29-CA-144562 (N.L.R.B. Feb. 1, 2016)

JD(NY)-4-16
BROOKLYN, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGE
NEW YORK BRANCH OFFICE
MIDLAND ELECTRICAL CONTRACTING CORP.
and Case No. 29–CA–144562
29–CA–144584
UNITED ELECTRICAL WORKERS OF
AMERICA, IUJAT, Local 363
Marcia E. Adams, Esq,
for the General Counsel
Ronald Steinvurzel, Esq.
Lindsey E. Haubenreich, Esq.
(Steinvurzel & Levy Law Group, White Plains, NY)
for the Respondent
Gary P. Rothman, Esq.1
Eric J. Laruffa, Esq.
(Law Offices of Richard M. Greenspan, P.C., Ardsley, NY)
for the Charging Party
DECISION
STATEMENT OF THE CASE
Mindy E. Landow, Administrative Law Judge. Based upon charges filed by United
Electrical Workers of America, IUJAT, Local 363 (Local 363 or the Union) against Midland
Electrical Contracting Corp. (Midland or Respondent), a Consolidated Complaint and Notice of
Hearing (complaint) issued on April 29, 2015 alleging that Respondent violated Section 8(a)(1),
(5) and (d) of the Act by failing to make contractually required fund contributions to various
Union employee benefit funds; failing to timely withdraw from the Building Industry Electrical
Contractors Association (BIECA), and refusing to adhere to the collective-bargaining agreement
between BIECA and the Union. Respondent filed an answer and then an amended answer
denying the material allegations of the complaint and asserting certain affirmative defenses

1 “Mr. Rothman has advised the Regional Director that as of January 21, 2016, he is no longer
affiliated with the Law Offices of Richard M. Greenspan.”
JD(NY)-04-16
2
which will be discussed, as relevant, below. A hearing of this matter was held before me in
Brooklyn, NY on September 17, 2015.
Based upon my consideration of the entire record in this matter,
2
including my evaluation
of the witnesses and the briefs filed by the Respondent and counsel for the General Counsel, I
make the following 5
FINDINGS OF FACT
JURISDICTION
Respondent is a domestic corporation and, at material times, maintained a place of
business in Staten Island, New York.
3
Respondent is engaged in the business of electrical
installation and maintenance. During the 12-month period prior to the issuance of the complaint, 10
a period which is representative of its annual operations generally, Respondent purchased and
received goods and materials valued in excess of $50,000 directly from suppliers located
outside the State of New York. Based upon the record herein, I find that at all material times,
Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act and that the Union has been a labor organization within the meaning of 15
Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
Background
Sometime during the spring of 2010, Respondent, by its President Kevin McGinley,
contacted Charles Shimkus, the Union’s Business Manager, to discuss his employees joining 20
the Union and obtaining coverage under the BIECA multi-employer collective-bargaining
agreement. BIECA, an association of electrical contractors, had executed a collective-
bargaining agreement with the Union in 2008 covering a unit of electricians, electrical
maintenance mechanics, helpers, apprentices, and trainees employed by its member
employers. This agreement was in effect from December 1, 2008 until November 30, 2011. At 25
their initial meeting, McGinley advised Shimkus that Respondent wanted to obtain Project Labor
Agreement (PLA) work for the New York City School Construction Authority, work which
historically had been performed by members of another union, Local 3, IBEW. Shimkus
informed McGinley that BIECA and the Union were considering filing a lawsuit to allow its
members to perform such work; however, no lawsuit had been filed at the time. 30

2
Counsel for the General Counsel’s motion to amend the record to include General Counsel’s Exhibit
12, which was inadvertently omitted from the exhibits in this matter is hereby granted.
3
In December 2014, Respondent relocated its offices to New Jersey.
JD(NY)-04-16
3
Sometime prior to June 30, 2010, Respondent decided to join BIECA and assume the
collective-bargaining agreement which has been referenced above. In so doing, Respondent
executed three documents: a Membership Application, a Recognition Agreement, and an
Assumption Agreement. 5
The Membership Application
On or about June 30, 2010, Respondent entered into a Membership Application and
Designation of Bargaining Representative with BIECA (the Membership Application) where
Respondent designated BIECA as its bargaining representative. This agreement, which was not
signed by any representative of the Union, provided in relevant part as follows:10
A. The Employer hereby applies for membership in the Association. The Employer
understands that it agrees to be bound by the Constitution and By-Laws of the
Association.
B. The Employer hereby designates the Association as its bargaining representative
in all negotiations with Local 363 for its employees in the bargaining unit described 15
above
4
and agrees to be bound by all the terms of any agreement entered into between
the Association and Local 363 covering said employees with the same force and effect
as though the Employer had executed the agreement as a party.
C. The Association hereby agrees to represent the Employer in negotiations with
Local 363 and to negotiate a collective bargaining agreement on the Employer’s behalf 20
concerning the Employer’s employees in the collective bargaining unit described above.
D. The Employer shall be responsible for payment of dues to the Association for the
full period of the Agreement with Local 363. Resignation from the Association must be in
writing and served on the Association by certified mail no less than 90 days prior the day
of the expiration of the agreement between the Association and Local 363. Timely 25
receipt of such resignation shall relieve the Association from any responsibilities or
obligations to bargain on behalf of the Employer for a new collective bargaining
agreement.
30

4
The unit was described as: “All electricians, electrical maintenance mechanics, helpers, apprentices
and trainees excluding office clerical employees, professional employees, guards and supervisors as
defined in the Act.”
JD(NY)-04-16
4
The Recognition Agreement
This agreement, executed by duly authorized representatives of Respondent and the
Union, entered into on or about June 30, 2010,
5
provides as follows:
WHEREAS, the Union has presented to the Employer evidence that it represents a 5
majority of the employees of the Employer in the classification and facility hereinafter set
forth;
WHEREAS, the Employer has satisfied itself, as a result of such evidence and other
investigation that the Union does represent a majority of such employees, and
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:10
Employer recognizes the Union as the sole and exclusive collective bargaining agent for
all employees of the Employer in the following classification:
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees,
excluding office clerical employees, professional employees, guard and supervisors as
defined in the Act. 15
The Assumption Agreement
Thereafter, the Union, the Association and Respondent signed an Assumption Agreement.
6
This agreement set forth, in pertinent part, the following:
1. The Employer is bound to all of the terms and conditions as are applicable from time to
time by the nature of the work performed for each of the Association Collective 20
Bargaining Agreements which are incorporated by reference herein as if fully set forth in
this Agreement.
2. The Union having hereby requested recognition as the majority representative under the
Act, the Employer hereby recognizes the Union as the majority Section 9(a) 25
representative under the Act. The Employer also recognizes that the Union has the

5
Another version of the Recognition Agreement was executed on July 30, 2010. However, there is no
dispute as to the authenticity of this document.
6
Again, there are two versions of the Assumption Agreement in evidence: one is effective by its terms
as of July, 1, 2010; the other is effective as of its terms as of August 1, 2010. Notwithstanding the
variation in the dates, the authenticity of the agreement is not disputed.
JD(NY)-04-16
5
majority support of the unit employees to be the unit employees’ collective bargaining
representative and the Employer further recognizes the Union as the majority
representative based on the Union having shown, or having offered to show an
evidentiary basis of its majority support.
5
3. The parties further agree to be bound to all the agreements and declarations of trusts,
amendments and regulations, thereto, referenced in the Association Collective
Bargaining Agreement and to remit all contributions as set forth under the Association
Collective Bargaining Agreement and all amendments, renewals and/or extensions
thereto, as adopted by the aforesaid Association and the aforesaid Local Union or their 10
designated trustees.
4. The Employer agrees to be responsible for the payment of fringe benefit contributions
due and owing pursuant to the Association Collective Bargaining agreement. All
contributions are due in the fund office by the tenth of each month. . . .
15
5. The Employer agrees that the Association shall, on behalf of the Employer, negotiate
successor Collective Bargaining Agreements, amendments, renewals and extensions
. . . and the Employer agrees to be bound by any and all amendments renewals and/or
extensions of the above referenced Association Collective Bargaining Agreements
unless and until this Agreement is properly terminated by either the Employer or the 20
Union in accordance with the renewal and/or Termination Provisions of the Association
Collective Bargaining Agreement.
The Collective-Bargaining Agreement
As is relevant to the facts of the instant case, the collective-bargaining agreement which
is the subject of the above-described Assumption Agreement, as entered into by Respondent, 25
Local 363 and BIECA, provides for mandated contributions to various employee benefit funds:
the Security Fund, the Building Trades’ Welfare Benefit Fund, the Building Trades’ Annuity
Fund, the Building Trades’ Education Fund and the Electricians’ Retirement Fund.
Additionally, Article 38 of the collective-bargaining agreement provides as follows:
This Agreement shall be effective as of the 1st day of December, 2011 and shall remain 30
and continue in full force and effect until Midnight November 30, 2014 and from year to
year thereafter, unless either party gives written notice to the other by certified mail,
return receipt requested, at least sixty (60) days prior to the date of expiration of this
Agreement, that it desires to modify or amend and/or renegotiate terms.
The identical provision, with dates altered to reflect the appropriate term, was contained 35
in the prior collective-bargaining agreement between the Union and BIECA, which was set
effective by its terms from December 1, 2008 to November 30, 2011.
The evidence adduced at trial establishes that by August 1, 2010, Respondent’s
employees were subject to the collective-bargaining agreement between the Union and BIECA.
JD(NY)-04-16
6
The Lawsuit
At some point in 2011, BIECA initiated a lawsuit against the City of New York seeking to
obtain PLA work for its members. The lawsuit was dismissed on August 4, 2011. No further
substantive detail concerning this matter was adduced on the record.
Respondent’s attempts to withdraw from the collective-bargaining agreement: 5
On January 17, 2013, McGinley sent the following correspondence to Shimkus:
Due to the PLA Agreement we need to opt out of the Union, IUJAT Local 363. We
cannot be competitive in our bidding while being members of Local 363, We hoped as
we discussed in our first meeting, that Local 363 would be part of the PLA Agreement.
Unfortunately that never came to pass due to losing the court case in Federal Court. 10
Furthermore, this letter is to inform you as of January 31, 2013, Midland Electrical
Contracting and all of its employees will no longer be members of IUJAT Local 363
Electrical Union due to the above mentioned reasons.
On January 23, 2013, Gary Rothman, counsel for the Union replied in pertinent part:
Please be advised that Local 363 will not agree to release Midland Electrical Contracting 15
Corp. from its collective bargaining contract obligations. The current BIECA contract, to
which Midland Electric is bound, is effective until November 30, 2014. Until at least that
date, and for any additional time that Midland Electric may be bound by any successor
agreement, Midland Electric will remain bound to the BIECA collective bargaining
agreement with Local 363. In that regard, Midland Electric remains obligated to make all 20
fringe benefit contributions to the BIECA funds and the United Welfare Fund—Security
Division, as provided in your contract.
After this time, Respondent remained in BIECA and continued to abide by the terms of
the collective-bargaining agreement. However, McGinley testified that in early 2013, he had
several telephone conversations with Shimkus where he stated that he would go out of business 25
because of an inability to obtain PLA work. According to McGinley, Shimkus said that he did not
have a problem with Midland leaving the Union, but that the problem fell with BIECA President
Patrick Bellantoni.
On March 29, 2013, Respondent associate Vanessa Perez emailed Bellantoni
requesting that he email a copy of the “Building Industry Electrical Contractors Association 30
Agreement.” Bellantoni replied that it was in book form and could not be emailed. He then sent a
copy of the industry collective-bargaining agreement to Perez. That was the only document
provided.
Thereafter, in May 2013, Respondent filed a lawsuit against BIECA and the Union to
nullify the collective-bargaining agreement on the basis of breach of contract. As to this claim,35
the relief sought was as follows:
JD(NY)-04-16
7
Thus, Plaintiff seeks a declaratory judgment declaring the CBA to be null and void, of no
force and effect and Midland’s performance under the CBA should be excused when
Midland performs work pursuant to any Project Labor agreements that require Midland
to recognize IBEW Local 3 as the sole and exclusive bargaining representative of its
craft employees who are performing work covered by said Agreement.5
Respondent additionally claimed fraudulent inducement insofar as it asserted that if the
Association and the Union had advised Respondent that its lawsuit seeking PLA work had
proven to be unsuccessful, it would have withdrawn from the Association and terminated the
2008 CBA pursuant to the terms of that CBA and would not have agreed to enter into the
Association’s subsequent CBA with the Union commencing December 1, 2011. In this regard, 10
Respondent sought the following relief:
1. For a declaratory judgment declaring the Collective Bargaining Agreement to be null
and void, of no force and effect and excusing Midland’s performance under said
Agreement when Midland performs work pursuant to Project Labor Agreements that
require Midland to recognize IBEW Local 3 as the sole and exclusive bargaining 15
representative of its craft employees who are performing work covered by said
Agreement.
2. For a declaratory judgment declaring the Collective Bargaining Agreement to be null
and void, of no force and effect as to Midland on the grounds that the December 1,
2011 Collective Bargaining agreement was procured through fraud due to the 20
material omission of the dismissal of the Complaint in BIECA v. The City matter; and
3. For such other relief including an award of attorneys’ fees, costs and disbursements
as to this Court may seem just and proper.
It does not appear from the record that this matter proceeded to a hearing, and on
October 13, 2013, the Respondent, the Union and BIECA entered into a stipulation of dismissal 25
of the foregoing lawsuit providing that it would be dismissed as to all parties with prejudice and
without costs or fees awarded to any party.
Subsequent events
In August 2014, BIECA and the Union began negotiations for a successor agreement.
On November 30, 2014, the parties executed a Memorandum of Agreement (MOA) effective 30
December 1, 2014 through November 30, 2017.
On September 4, 2014, Respondent sent a “notice of termination” to BIECA and the
Union providing in pertinent part as follows:
Please note that pursuant to Article 38 of the CBA, the CBA “shall remain and continue
in full force and effect until Midnight November 30, 2014, and from year to year 35
thereafter, unless either party gives written notice to the other by certified mail, return
receipt requested, at least sixty (60) days prior to the date of expiration of this
Agreement, that it desires to modify or amend and/or renegotiate same.
JD(NY)-04-16
8
On or about July 1, 2010, Midland and the Union entered into an Assumption
Agreement, which was signed by Midland and representatives of the Union and the
Association (the “Assumption Agreement”). According to Paragraph 1 of the Assumption
Agreement, Midland agreed to be “bound to all of the terms and conditions as are
applicable from time-to-time by the nature of the work performed for each of the [CBAs] 5
which are incorporated herein by reference as if fully set forth in this Agreement.”
Furthermore, according to Paragraph 5 of the Assumption Agreement, Midland agreed
“to be bound by any and all amendments, renewals and/or extensions of the [CBA]
unless and until this agreement is properly terminated by either [Midland] or the Union in
accordance with the renewal and/or Terminations Provisions of the [CBA].” A copy of the 10
Assumption Agreement is enclosed herewith.
Accordingly, Midland is a signatory to the CBA and is herein providing written notice sent
by certified mail, return receipt requested, at least 60 days prior to the date of the
expiration that it desires to amend the CBA. In accordance with the Termination
Provisions in Article 38 of the CBA, Midland is formally advising the Union and the15
Association that Midland does not wish to renew the CBA. In accordance with the
Termination Provisions in Article 38 of the CBA, Midland is also formally advising the
Union and the Association that Midland does not wish to renew the Assumption
Agreement. As such, the last day that Midland will be bound by the CBA or the
Assumption Agreement will be November 30, 2014.20
Respondent sent a follow-up letter dated September 16, 2014 reiterating its contention
that it had, in accordance with the provisions of the CBA, timely notified the Union and the
Association that it did not wish to renew the CBA or the Assumption Agreement, and that the
last day it will be bound by either would be November 30, 2014.
The parties stipulated that as of September 2014, no payments to any of the 25
contractually required benefit funds noted above had been made.
7
ANALYSIS AND CONCLUSIONS
An employer who signs an agreement to name a multiemployer association to be its
bargaining agent and to be bound by the collective-bargaining agreement in effect between a
union and that multiemployer association and “any modification, extensions or renewals” of that 30
collective-bargaining agreement is on notice that that the bargaining relationship will be
governed by subsequent agreements if the employer fails to provide proper notice to the
contrary. Absent such notice, that employer is bound by the new agreement negotiated between
the union and the association. See Ted Hicks and Associates, Inc. 232 NLRB 712, 713 (1977).

7
Respondent agreed to this stipulation with the caveat that it did not acknowledge that any such
payments were due.
JD(NY)-04-16
9
In Retail Associates, 120 NLRB 388, 395 (1958), the Board found that to effectively
withdraw from such a multiemployer relationship, the withdrawal must be both unequivocal and
timely. Moreover, in The Carvel Co., 226 NLRB 111 (1976), the Board found that in order to be
timely, the employer’s withdrawal must be made prior to the commencement of multi-employer
bargaining over a new contract:5
In Retail Associates, supra, the Board set forth the rules governing the withdrawal of an
employer from multiemployer bargaining. An employer may withdraw without the union’s
consent prior to the start of bargaining by giving unequivocal notice of the intent to abandon the
multiemployer unit and to pursue negotiations on an individual basis. However, once
negotiations have actually begun, withdrawal can only be effectuated on the basis of “mutual 10
consent” or “unusual circumstances.”
As is of particular relevance to the instant case, Board precedent has also made clear
that the action of withdrawal of negotiating authority from a multiemployer association is an
action distinct from terminating a contract. Rome Electrical Systems, 349 NLRB 745, 747
(2007), enfd. 286 Fed. Appx. 697 (11th Cir. 2008).
8
15
Applying the foregoing principles here, I conclude that the Respondent continues to be
bound to BIECA and the terms of the 2014–2017 collective-bargaining agreement between
BIECA and the Union.
While the collective-bargaining agreement at issue had a 60-day notice requirement for
the parties to request modification or termination, the terms of the Membership Application 20
clearly provide that:
Resignation from the Association must be in writing and served on the Association by
certified mail no less than 90 days prior [to] the day of the expiration of the agreement
between the Association and Local 363. Timely receipt of such resignation shall relieve
the Association form any responsibilities or obligations to bargain on behalf of the 25
Employer for a new collective-bargaining agreement.
There is also no dispute that Respondent agreed to be bound to the Membership
Application which unambiguously provided that:

8
In their post-hearing briefs, both the General Counsel and Respondent have cited to Carr Finishing
Specialties, 358 NLRB No. 165 (2012), in support of their respective positions. That case was issued by a
Board panel that the Supreme Court found was not properly constituted. NLRB v. Noel Canning, 134
S.Ct. 2550 (2014). The General Counsel urges that I rely upon the reasoning set forth by the Board in
that matter. While I do not officially rely upon that case, I do agree with the general analytical framework
as set forth therein, as it is supported by other Board precedent as discussed above.
JD(NY)-04-16
10
The Employer hereby designates the Association as its bargaining representative in all
negotiations with Local 363 for its employees in the bargaining unit described above and
agrees to be bound by all the terms of any agreement entered into between the
Association and Local 363 covering said employees with the same force and effect as
though the Employer had executed the agreement as a party.5
In the present case, the agreement in effect expired on November 30, 2014. Thus,
Respondent was required to notify BIECA of its withdrawal, in writing by certified mail no later
than 90 days prior to that date, which it failed to do. Respondent’s September notices were
beyond that time frame. There is also no evidence of mutual consent or unusual circumstances
which would authorize an untimely withdrawal. 10
Respondent has argued that the contractual termination provisions in the collective-
bargaining agreement, which were incorporated by reference in the Assumption Agreement,
superseded the termination language in the Membership Agreement. The substance of that
argument has been rejected by the Board. See Rome Electrical Systems, supra at 747–748
(rejecting employer’s argument that termination language in a particular collective-bargaining 15
agreement superseded termination language in a previously executed letter of assent to be
bound by the association-union agreements). To the contrary, I conclude that Respondent
conferred actual authority on BEICA to bind it to subsequent agreements, absent a timely
withdrawal according to the terms of the Membership Application.
As the General Counsel has noted, the September notices of withdrawal were further 20
untimely inasmuch as they were sent subsequent to the commencement of negotiations for the
2014–2017 agreement. See The Carvel Company, supra. As the Board has stated:
The right of withdrawal by either a union or employer from a multiemployer unit has
never been held, for Board purposes, to be free and uninhibited, or exercisable at whim.
For the Board to tolerate such inconsistency and uncertainty in the scope of collective-25
bargaining units would be to neglect its function in delineating appropriate units under
Section 9, and to ignore the fundamental purpose of the Act by fostering and maintaining
stability in bargaining relationships. Necessarily under the Act, multiemployer bargaining
units can be accorded the sanction of the Board only insofar as they rest in principle on
a relatively stable foundation. 30
Retail Associates, supra at 395.
I further find that Respondent’s reliance upon its unsuccessful attempts to rid itself of its
commitments to the 2011–2014 collective-bargaining agreement is unavailing. Respondent’s
January 2013 letter to the Union, which did not reference BIECA, failed to constitute a legitimate
withdrawal from BIECA, as it did not comport with the clear requirements set forth in the 35
Membership Application. In addition, Respondent requested immediate withdrawal during the
second year of a 3-year contract instead of at the end of the agreement in effect at the time.
Respondent was further notified by the Union that its attempt to withdraw from the CBA would
not be agreed to.
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11
In a similar vein, I find that Respondent’s 2013 lawsuit failed to meet the Membership
Application’s requirements. Here, Respondent unsuccessfully attempted to have the District
Court nullify the CBA; not its membership in BIECA. In any event, the lawsuit proved ineffective
and did not provide BIECA with termination notice consistent with the terms of the Membership
Application. 5
In Respondent’s answer to the complaint, Respondent alludes to the issue of fraudulent
inducement, which echoes claims brought in the lawsuit referenced above. I find these
assertions to be unconvincing. There is no evidence that membership in BIECA was premised
upon a contingency or the Union’s guarantee that it would be able to obtain PLA work.
Moreover, there is no evidence that Respondent failed to receive a copy of the Membership 10
Application, which it, in fact, executed and then forwarded to BIECA. In short, there is simply no
evidence to support the insinuation that Respondent was unaware of what it had agreed to.
CONCLUSIONS OF LAW
1. By failing and refusing to adhere to the collective-bargaining agreement effective
December 1, 2014 to November 30, 2017 between United Electrical Workers of 15
America, IUJAT, Local 363 (the Union) and The Building Industry Electrical Contractors
association (BIECA), and by refusing, since September 2014, to make contractually
required fund contributions to the Union’s Security Fund, Building Trades’ Welfare
Benefit Fund, Building Trades’ Annuity Fund, Building Trades’ Education Fund and the
Electricians Retirement Fund on behalf of unit
9
employees, Respondent has violated 20
Section 8(a)(1), (5) and (d) of the Act.
2. The above labor practices affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY25
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. Respondent should be ordered to recognize and, on request,
bargain with the Union as the collective-bargaining representative of all unit employees, as
described above. The Respondent should also be required to adhere to the 2014–2017 30
collective-bargaining agreement between the Union and BIECA and make whole the unit
employees for any loss of earnings and other benefits suffered as a result of the Respondent’s
failure to apply the 2014–2017 collective-bargaining agreement between BIECA and the Union

9
All electricians, electrical maintenance mechanics, helpers, apprentices and trainees excluding
office clerical employees, professional employees, guards and supervisors as defined in the Act.
JD(NY)-04-16
12
as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). In the event backpay
is owed, Respondent should be ordered to compensate employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award and file a report with the Social5
Security Administration allocating the backpay award to the appropriate calendar quarters. Don
Chavas LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Additionally, Respondent should be ordered to make all required benefit fund
contributions from September 2014, to the present, including any additional amounts applicable
to such funds as set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In 10
addition, Respondent should be ordered to reimburse unit employees for any expenses
resulting from the Respondent’s failure to make the required contributions to the funds, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). Such amounts are to be computed in the manner set forth in Ogle Protection
Service, supra, with interest as prescribed in New Horizons, supra, compounded daily as 15
prescribed in Kentucky River Medical Center, supra.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
10
ORDER
The Respondent Midland Electrical Contracting, formerly of Staten Island New York, and 20
currently operating from New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize the United Electrical Workers of America, IUJAT, Local
363, (the Union), as the collective-bargaining representative of unit employees as has 25
been defined herein and in the Recognition Agreement, as set forth above.
(b) Failing and refusing to apply to unit employees the 2014–2017 collective-bargaining
agreement between the Building Industry Electrical Contractors Association (BIECA) and
the Union.
(c) In any like or related manner interfering with, restraining or coercing employees in the 30
exercise of the rights guaranteed them by Section 7 of the Act.

10
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(NY)-04-16
13
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as the exclusive collective-bargaining 5
representative of the unit employees.
(b) Make whole all bargaining unit employees and all benefit funds for any loss of income,
contributions or benefits, and for any expenses incurred in connection with those benefit
fund losses by those employees, in the manner set forth in the remedy section of this
decision.10
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of
such records if stored in electronic form, necessary to analyze the amount of backpay 15
due under the terms of this decision.
(d) Within 14 days after service by the Region, post at its facility in Staten Island, if still
extant, and in its New Jersey facility copies of the attached notice marked “Appendix.”
11
Copies of the notice, on forms provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representative, shall be posted by the 20
Respondent and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to the physical
posting of paper notices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or by other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable 25
steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed 30
by the Respondent at any time since September 1, 2014.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.

11
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.”
JD(NY)-04-16
14
Dated, Washington, D.C. February 1, 2016
____________________________
Mindy E. Landow5
Administrative Law Judge
JD(NY)-04-16
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail or refuse to recognize the United Electrical Workers of America,
IUJAT, Local 363 (Union) as the exclusive collective-bargaining representative of all employees
performing work in the following unit:
All electricians, electrical maintenance mechanics, helpers, apprentices and
trainees excluding office clerical employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT fail and refuse to apply to unit employees the existing collective-bargaining
agreement between the Building Industry Electrical Contractors Association (BIECA) and the
Union.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise
of the rights guaranteed to you by Section 7 of the Act.
WE WILL recognize the Union as the exclusive collective-bargaining representative of
employees in the bargaining unit and will adhere to all provisions in our existing collective-
bargaining agreement with the Union.
WE WILL make whole our bargaining unit employees, and all benefit funds, for any loss of
income, contributions, or benefits suffered as a result of the failure to apply to those employees
the collective-bargaining agreement between the BIECA and the Union and for any expenses
incurred in connection with those benefit fund losses, with interest.
JD(NY)-04-16
MIDLAND ELECTRICAL CONTRACTING CORP.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two Met Rotech Center (North), Jay Street and Myrtle Avenue, 5th Floor
Brooklyn, New York 11201–4201
Hours: 9 a.m. to 5:30 p.m.
718–330–7713.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-144562 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.