American Thoro-Clean, Ltd. And Unico, Ltd.

National Labor Relations Board - Board Decisions

May 26, 1987

283 N.L.R.B. 1107 (N.L.R.B. 1987)

AMERICAN THORO-CLEAN
American Thoro-Clean , Ltd. and Unico , Ltd.' and
United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers' Association,
Local Union No. 11 of Chicago, Illinois, Inter-
national Union of Roofers, Waterproofers and
Allied Workers , AFL-CIO. Case 13-CA-21389
26 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 14 December 1982 Administrative Law
Judge Robert Giannasi issued the attached deci-
sion. The Respondent, the Charging Party, and the
General Counsel all filed exceptions and supporting
briefs. The ' Respondent filed a brief in reply to the
exceptions of the Charging Party and the General
Counsel, and the General Counsel filed a brief in
reply to the Respondent's exceptions.
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 briefs and has
decided to affirm the judge's rulings, fmdings,2 and
conclusions as modified.
The issue in this case is whether the Respondent
violated Section 8(a)(5) and (1) of the Act by fail-
ing to comply with certain terms of its collective-
bargaining agreement with the Union. More specif-
ically, the Respondent is alleged to have violated
the Act by (1) failing to make contractually man-
dated fringe benefit contributions on behalf of all
of its employees; (2) failing to pay its employees
the contractual wage rates; and (3) supplying non-
union employees with the union membership cards
of other employees in order to deceive the' Union
into believing that the Respondent was complying
with the contractual union-security provisions. For
the reasons discussed below, we find that the Re-
spondent has violated the Act as alleged.
1. FACTS
At the outset of the time material (1977-1982),
the Union had a collective-bargaining agreement
with the Chicago Roofing Contractors' Association
1 The caption is amended to include Unico, Ltd. as a party Respond-
ent, based on the Respondent's admission at the hearing that American
Thoro-Clean, Ltd and Unico, Ltd are a single or joint employer Both
parties are jointly referred to as the Respondent
2 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 reversing
the findings
1107
(CRCA), a multiemployer association which, inter
alia, negotiated collective-bargaining agreements on
behalf of its members.
The Respondent is a roof cleaner in the con-
struction industry. The Respondent has a stable
work force and does not hire on a project-by-
project basis. The Respondent was not, at the
outset, a member of the CRCA. In August 1977
the Respondent and the Union entered into a "Sup-
plemental Agreement" which incorporated by ref-
erence the terms of the Union's collective-bargain-
ing agreement with CRCA, provided that the Re-
spondent was now a party to that agreement, and
extended the period of the agreement through 31
May 1978. The 'Union-CRCA collective-bargaining
agreement to which the Respondent had become a
party contained- a union-security clause that re-
quired all employees to be union members or to
become members within 7 days of being hired or of
the effective date of the agreement. The contract
also established wage rates, and required employers
to make contributions (or, in one respect, deduc-
tions from wages),to specified benefit funds,,3 in a
contractually established amount per hour for each
hour worked by each employee during each
month. Thus, the Respondent was required to list
all unit- employees on the monthly reporting forms
used to make contributions to the fringe benefit
funds. The Union-CRCA collective-bargaining
agreement also provided that it would continue in
force and effect from year to year following 31
May 1978, unless either party desired a change and
served notice in writing of that desired change on
the other party at least 90, days prior to any anni-
versary date of the agreement (i.e., at least 90 days
prior to 31 May of years subsequent to 1978).
In 1978 and 1980 the Respondent entered into
subsequent supplemental agreements with the
Union, in each case incorporating by reference the
terms of the current master agreement between the
Union and CRCA, and particularly renewing the
Respondent's contractual obligations in the areas of
union security, wages, and contributions to fringe
benefit funds. In February 1980 the Respondent
joined the CRCA, and remained a member
throughout the remainder of the time period in
question here.
On 1 June 1981 the Union and the CRCA (of
which the Respondent was by then a member) en-
tered into a supplemental agreement to their collec-
tive-bargaining agreement. This supplemental
agreement increased wage rates and employer con-
3 The fringe benefit funds are the Roofers Unions Welfare Trust
Fund, Roofers' Pension Fund, Roofers' Reserve Fund, the Chicago Roof-
ers' Apprenticeship and Training Fund, and the Roofers' Industry Ad-
vancement and Research Fund
283 NLRB No. 169
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tributions to fringe benefit funds. It also provided
that all provisions of the collective-bargaining
agreement would be in force and effect from 1
June 1981 through 31 May 1982, and would contin-
ue 'in force and effect from year to year thereafter,
unless either party served notice in writing to the
other party of any desired changes at least 90 days
prior to any anniversary date.4
The Respondent regularly filed monthly fringe
benefit fund-contribution reports, ostensibly report-
ing all the hours worked by all the Respondent's
unit employees. During this time , the Respondent
also kept in force a contractually required $5000
(later $10,000) wage and fringe benefit surety bond,
under the terms of which the Respondent acknowl-
edged that it was operating under a collective-bar-
gaining agreement and that it had agreed to pay
the contractual wage and fringe benefit fund con-
tributions for' all unit, employees. As early as July
1978, ,the, Union had received information that the
Respondent was not paying contractual wage rates
at all times and that some of the Respondent's em-
ployees had not become union members. On 4
August 1981 the Union filed the unfair labor prac-
tice charge in the instant case.
The Respondent concedes that it did not pay
contractually required wages; that it did not report
all its employees, and all their work hours each
month, on the fringe benefit fund contribution re-
ports; that it did- not comply with the contractual
union-security clause requiring unit employees to
be or become union members; and that instead it
paid -for, the union, membership of some of its em-
ployees and then distributed their union member-
ship cards among other unit employees who were
not union members. -
11. ANALYSIS AND CONCLUSIONS
In defending itself against the allegations of un-
lawful activity arising from its failure to comply
with contractual wage, fringe benefit, and union-se-
curity provisions, the Respondent contended that it
was' not obligated to bargain with the Union about
these-matters because, inter alia, (1) the Union did
not represent a majority of the Respondent's em-
ployees, and (2) each of its contracts with the
Union were prehire agreements under Section 8(f)
of the Act, and the Respondent was therefore priv-
ileged -to repudiate those contracts at any time
prior to the achievement of majority status by' the
Union (that the Respondent contends the Union
did not achieve in this case).
4 The complaint alleges that this collective -bargaining agreement is ef-
fective by its terms for the period 1 June 1981 through 31 May 1982,
The judge rejected these defenses.5 He found (1).
that the successive collective bargaining agree-
ments between the Respondent and the Union,
starting in August 1977 and continuing throughout
the time material herein, raised a dual presumption
of initial and continuing union majority status,
which presumption the Respondent had not rebut-
ted, and (2) that, assuming the successive collec-
tive-bargaining agreements between the Respond-
ent and the Union were prehire agreements author-
ized under Section 8(f) of the Act, the record nev-
ertheless establishes that the Union achieved major-
ity status in the appropriate unit in September 1977,
thus converting the parties' collective-bargaining
relationship from one permitted by Section 8(f) to
one cognizable under Section 9(a) of the .Act, and
one therefore governed by' the provisions of Sec-
tion 8(a)(5). Accordingly,, the judge found that the
Respondent had violated Section 8(a)(5) of the Act
as alleged in all respects.
We agree with the results reached by the judge,
for the reasons discussed below.
Recently-and subsequent to the judge's issuance
of his decision-the Board issued its decision in
John Deklewa & Sons,s in which we decided , that
we would no longer apply the conversion doctrine,
relied on by the judge in the instant case, to collec-
tive-bargaining agreements/relationships permitted
under' Section 8(f)' of the Act.7 In doing away with
the conversion doctrine, as applied to collective-
bargaining agreements permitted under- -Section
8(f), we.held in Dekiewa that in light of the legisla-
tive history of Section 8(f), and the prevailing prac-
tice in the construction industry, the' party to an
8(f) relationship that asserts the existence of a col-
lective-bargaining relationship under Section 9(a)
of the Act would have the burden of affirmatively
proving the existence of such a relationship,
through either (1) a Board-conducted representa-
5 The Respondent also contended that it was not bound by the terms
of its successive contracts with the Union, on the grounds that (I) the
original contract, in August 1977, was obtained through coercion, and
that (2) an oral understanding between the Respondent's secretary Brian
Flanagan and the Union 's business representative Joseph Miller, at the
time of signing of the Respondent's initial (August 1977) agreement with
the Union, relieved the Respondent of its obligations under the literal
terms of the contract in the areas in which the Respondent is alleged to
have breached the contract in this case.
The judge also rejected these contentions, on the grounds that (1) the
Respondent's allegation of coercive inducement is timebarred by Sec.
10(b); that (2), in any event, the credible evidence fails to support this
contention, and (3) Flanagan's testimony about the existence and extent
of an oral modification of the contract was not credible, (The judge cred-
ited Miller's denial' of any such oral agreement) We agree with and
affirm the judge's disposition of these matters
6 282 NLRB 1374; (1987).
' -Under the conversion doctrine, a collective-bargaining relation-
ship/agreement permitted under Sec 8(f) could convert into one cogniza-
ble- under Sec 9(a) simply on the basis of a showing -that during a rele-
vant period the union enjoyed the support of a majority of the employ-
er's employees in an appropriate unit.
AMERICAN THORO-CLEAN
tion election or (2) a union's express demand for,
and an employer's voluntary grant of, recognition
to the union as bargaining representative, based on
a showing of support for the union among a major-
ity of the employees in an appropriate unit.8 As a
corollary to our abandonment of the conversion
doctrine, as applied to collective-bargaining agree-
ments/relationships permitted by Section 8(f), how-
ever, we held in Deklewa- that a union signatory to
an agreement permitted by Section 8(f) acquires
limited status as a representative under Section 9(a),
to the extent that the 8(f) agreement may not be
unilaterally repudiated during its term, and may be
enforced during its term under the provisions of
Sections 8(a)(5) and 8(b)(3).9
No party has excepted to the judge's finding that
the Respondent is an employer in the construction
industry. The record establishes that the parties en-
tered into their initial agreement in August 1977
without regard to whether the Union had the sup-
port of a majority of the Respondent's employees.
Further, in the instant case, there is no contention,
nor is there any evidence, that a Board election
was held or that there was' a demand for and vol-
untary grant of recognition to the Union at any
time premised on a showing of support for the
Union among a majority of the Respondent's em-
ployees. Also, the initial agreement and the succes-
sive agreements between the parties required, as a
condition of employment, that employees had to
become members of the Union within 7 days of
being hired. In light of these facts, we find that
under the circumstances at all times material the
Respondent and the Union were parties to succes-
sive collective-bargaining -agreements permitted
under Section 8(f) of the Act. We further find that
the Respondent substantially repudiated its 1981-
1982 collective-bargaining agreement with the
Union during the term of that agreement by failing
to pay contractual wage rates; failing to make con-
tractually requited fringe benefit contributions on
behalf of all - employees; and supplying nonunion
employees with the union membership cards of
other employees in order to deceive the Union and
circumvent the contractual union-security provi-
sions. Accordingly, we conclude that the Respond-
ent has violated Section,8(a)(5) and (1) of the Act
as alleged. 10
s 282 NLRB 1374, 1384-1385.
Id. 1380.
10 John Deklewa & Sons, supra Chairman Dotson agrees with his col-
leagues that the Respondent substantially repudiated the collective-bar-
gaining agreement and violated Sec 8(a)(5) and (1) of the Act by its
overall course of conduct. Accordingly, Chairman Dotson finds it unnec-
essary to pass on the question of whether a failure to make contractually
required fringe benefit contributions, standing alone, would be an unfair
labor practice. See Chairman Dotson' s dissenting opinion in Rapid Fur
1109
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order that
it cease and desist, and take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent to comply
with the terms of its collective-bargaining agree-
ment with the Union from 4 February 198111
through the expiration of, the agreement on :31 May
1982. Also, we shall order the Respondent to make
the employees and the Union whole for any losses
they may have suffered as a result ofthe Respond-
ent's failure to comply with the collective-bargain-
ing agreement from 4 February 1981 through its
expiration on 31 May 1982. The Union and the em-
ployees shall be made whole for their losses in the
manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), with interest, as computed in
Florida Steel Corp., 231 NLRB 651 (1977). See also
Pacific Intercom Co., 255 NLRB 184 fn. 6 (1981).
Additionally, we shall order the Respondent to
make the appropriate fringe benefit funds whole for
losses suffered as a result of the Respondent',; delin-
quencies in failing to make contractually required
contributions to these funds. We note, however,'
that one of the fringe benefit funds in question is
the Roofers' Industry Advancement and Research
Fund. Inasmuch as industry advancement funds are,
permissive, nonmandatory subjects of bargaining, it
is not an unfair labor practice for an employer uni-
laterally to discontinue its contributions to such
funds. See F.M.L. Supply, 258 NLRB 604 fn. 3
(1981); Finger Lakes Plumbing Co., 254 NLRB 1399
(1981). Accordingly, the Respondent is not re-
quired as a part of the remedy in this case to make
delinquent payments to the Roofers' Industry Ad-
vancement and Research Fund.
We also note that the applicable collective-bar-
gaining agreements in this case provide that all de-
linquent contributions to the fringe benefit funds
are subject to a mandatory liquidated damage as-
sessment of an additional amount equal to 10 per-
cent of the delinquent amount required to be sub-
mitted. Accordingly, we shall order the Respond-
ent to pay into each of the contractually specified
fringe benefit funds, except the Roofers' Industry
Advancement and Research Fund, as liquidated
damages, an additional sum amounting to 10 per-
cent of the delinquent contributions due those
Dressing, 278 NLRB 905 (1986). The Chairman also notes the judge's dis-
cussion in fn. 16 of the latter's attached decision in the instant ca,&
11 We affirm the judge's resolution of the 10(b) issue raised by the
General Counsel, as discussed in sec. III,B,3 of the attached decision
Chairman Dotson accepts the judge's resolution of this matter, in the ab-
sence of exceptions to the judge's failure to find that the complaint is
barred in its entirety under the provisions of Sec 10(b)
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
funds. See F.M.L. Supply, supra; Finger Lakes
Plumbing Co., 253 NLRB 406 (1980).
ORDER
The National Labor Relations Board orders that
the Respondent, American Thoro-Clean, Ltd. and
Unico, Ltd., Mokena, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Repudiating its collective-bargaining agree-
ment with the Union during the term of that agree-
ment by failing to pay contractual wage rates; fail-
ing to make contractually required contributions to
fringe benefit funds on behalf of all employees; and
supplying nonunion employees with the union
membership cards of other employees in order to
circumvent contractual union-security provisions.
(b) 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) Make whole the above-described employees,
the Union, and fringe benefit funds, in the manner
set forth in the remedy, for any losses they may
have suffered as a result of the Respondent's failure
to adhere to the contract from 4 February 1981
through 31 May 1982.
(b) Pay into the specified fringe benefit funds
(except the Roofers' Industry Advancement and
Research Fund) an additional sum amounting to 10
percent of the delinquent contributions due those
funds.
(c) Comply with the terms and conditions of the
above-described collective-bargaining agreement
from 4 February 1981 through 31 May 1982.
(d) 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. _
_(e) Post at its Mokena, Illinois office copies of
the attached notice marked "Appendix." 12 Copies
of the notice, on forms provided by the Regional
Director for Region 13, 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
12 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 "
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.
(f) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by the Union, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
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 repudiate our collective-bargain-
ing agreement with United Slate, Tile and Compo-
sition Roofers, Damp and Waterproof Workers'
Association, Local Union No. 11 of Chicago, Illi-
nois, International Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO, during
the term of that agreement.
WE WILL NOT fail to pay wage rates established
,gaining agreement between usin a collective-bar
and the Union.
WE WILL NOT fail to make contractually re-
quired contributions to fringe benefit funds on
behalf of all our employees covered by a collec-
tive-bargaining agreement between us and the
Union.
WE WILL NOT provide nonunion employees with
the union membership cards of other employees in
order to circumvent the union-security provisions
of a collective-bargaining agreement between, us
and the Union.
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 make whole our employees, the Union,
and the fringe benefit funds for any losses they
may have suffered as a result of our failure to
comply with our collective-bargaining agreement
with the Union, from 4 February 198 1 until the ex-
piration of the agreement on 31 May 1982.
WE WILL pay into the specified fringe benefit
funds (except the Roofers' Industry Advancement
AMERICAN THORO-CLEAN
and Research Fund) an additional sum amounting
to 10 percent of the delinquent contributions due
those funds.
WE WILL comply with the terms of our collec-
tivebargaining agreement with the Union from 4
February 1981 until 31 May 1982.
AMERICAN THORO-CLEAN, LTD. AND
UNICO,' LTD.
Mel Basan, Esq., for the General Counsel.
Gerard C Smetana, Esq., of Chicago, Illinois, for the Re-
spondent.
Margo R. Newman, Esq. (Asher, Goodstein, Pavalon,
Gittle; Greenfield & Segall, Ltd), of Chicago, Illinois,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried in, Chicago, Illinois , for 5 days in
April and May 1982. The complaint alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
making unilateral changes in the middle of its existing
agreement with the Charging Party Union, more specifi-
cally, by failing to make fringe benefit contributions for
all its employees as required by the agreement, by failing
to pay its employees the contractual wage rates, and by
supplying nonunion employees with union cards of other
employees "to hide its employment of non-Union em-
ployees from the Union." Respondent denied the essen-
tial allegations of the complaint., All parties filed briefs
that I have read and considered.
On the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make
the following'
i After the close of the hearing, I was presented with three technical
matters that I dispose of as follows-
(1) Respondent's counsel sent me directly copies of exhibits that were
properly removed from the formal exhibit file and reproduced. I have no
way of knowing, however, whether these are accurate reproductions of
the exhibits produced at trial. The proper course would have been to
return the copied documents to the official reporter Neither the General
Counsel nor the Charging Party has objected to the reproductions.
Therefore, I shall include them as part of the official record in this case
(2) The General Counsel has filed a motion to correct transcript in cer-
tain respects. The motion is not complete because this transcript is replete
with errors to a degree unmatched in my experience. I believe, however,
that the substance of what transpired was not significantly distorted. The
General Counsel's motion was unopposed and no other party focused on
correction of the transcript I therefore grant the motion and reproduce
the corrections as Appendix B to this decision [Omitted from publica-
tion.]
(3) The Respondent attached to its brief two letters that were purport-
edly sent to the Union and the Chicago Roofing Contractor's Association
after the commencement of this hearing. Presumably, Respondent wants
these letters to be placed in evidence. The General Counsel and the
Charging Party have not responded to this attempt to augment the
record My view is that the record is already sufficiently developed on
this matter and the letters add nothing of value to an issue that was not
the subject of a complaint allegation and may be litigated, if necessary, in
compliance proceedings. I will therefore leave the letters where they are.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, American Thoro-Clean, Ltd., ' an Illinois
corporation, is engaged in the operation of the industrial
vacuuming and cleaning of roofs. Its main office is locat-
ed at 8110 West 185th Street, Mokena, Illinois. In the
past year, Respondent provided services valued in excess
of $50,000 for other enterprises within the State of Illi-
nois, which enterprises were themselves engaged in,inter-
state commerce and which enterprises meet the Board's
jurisdictional standards other than the indirect inflow, or
indirect-outflow standards. The Respondent admitted the
above in its answer. Accordingly, I find that Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
It is also admitted that Respondent Unico, Ltd„ which
was added as a party Respondent in an amendment to
the complaint on motion granted during the last day of
the' trial, constitutes, with American Thoro-Clean, Ltd., a
single and/or joint employer. Both companies Will be re-
ferred to jointly as Respondent.
II. THE LABOR ORGANIZATION
The Charging Party (the Union) is a labor organiza-
tion within the meaning 'of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Facts
Respondent's employees normally work in teams of
two employees assigned to one vacuuming machine. Re-
spondent's secretary,' Brian Flanagan, testified that, at
times, Respondent had a third employee on jobs when
there was an "extreme amount of shoveling" to be per-
formed. Supervisor Gary Carlson, who was hired in
1978, testified that Respondent utilized three men per
machine at that time, but he was apparently referring to
situations when "we needed safety men on the ground."
In August 1977, Respondent operated two vacuuming
machines, according to Brian Flanagan. 'There is some
dispute concerning the number of individuals employed
by Respondent at this time. In any event, the work force
remained relatively constant until October or November
1977 when, according 'to Flanagan, it expanded some-
what. However, Respondent continued to utilize two va-
cuuming machines until the spring of 1978 when,il, added
one machine.
Respondent's work force suffers some turnover of em-
ployees, but the number of positions is relatively con-
stant. Most employees are hired for an indefinite period
and not on a project-by-project basis. They continue
working throughout the season, which begins in the
spring and peaks in the fall, and they "often" continue
working` "through subsequent years," according to
Flanagan.
On August 23, 1977, Respondent and the Union en-
tered into a supplemental agreement that incorporated by
reference the terms of the Union's standard working
agreement that became effective June 1, 1974. The stand-
ard agreement provides for recognition of the Union in a
1112 DECISIONS OF THE NATIONAL LABOR ' RELATIONS BOARD
unit description essentially composed of "all employees"
engaged in the application and installation of roofing ma-
terial "and all other work in connection with or inciden-
tal thereto ." The standard agreement also includes a
union-security clause that provides that employees are to
become members of the Union within 7 days following
the' commencement of their employment or the effective
date of'the.ag reement . The standard agreement also pro-
vides for the payment of certain wage rates and for pay-
ments on behalf of all employees covered by.the agree-
ment 'to union trust funds for various fringe benefits,
such as pensions, welfare , and training funds.
The supplemental agreement signed by Respondent
provided that it became party to the standard agreement
but made certain modifications in the matter of wages,
fringe benefit contributions, and dues withholding pay-
ments . The supplemental agreement provided that it was
to remain in full force and effect until May 31, 1978, and
from year to year thereafter unless timely notice of
change was given at least 90 days before the expiration
date. It also provided that `all other terms of the standard
agreement were to remain' in force until May 31, 1978.
After execution of the agreement, Respondent was
supplied with fringe benefit reporting forms and filed re-
ports and made payments for employees each month
froln September 1977 through at least March 1982. On
occasion Respondent paid additional sums as penalties
for late payment in accordance with provisions in the
standard agreement and on the forms themselves. In-
structions on the monthly reports state that all hours for
foremen; journeymen, and apprentices "must be reported
regardless of the kind of duties performed."
The standard agreement in effect when the August 23,
1977 agreement , of the parties was signed had been nego-
tiated between the Union and the Chicago Roofing Con-
tractors', Association (CRCA), one of whose purposes,
according ' to its bylaws,, is to negotiate , bargaining agree-
ments with labor organizations.. CRCA and the Union
signed a new standard agreement in 1978 to extend
through May 31, 1980.
On August 2, 1978, Respondent and the Union entered
into another supplemental agreement, 'effective retroac-
tively to June 1, 1978, incorporating modifications nego-
tiated in the new standard agreement and readopting the
original ' standard agreement . This supplemental agree-
ment was to remain in- full force and effect until May 31,
1980;
In 1980, the Union negotiated a supplemental agree-
ment with CRCA 'modifying the earlier standard agree-
ment. Respondent executed a similar supplemental' agree-
ment dated June 9, 1980 . ' This supplemental agreement,
which was signed by Respondent's president, John
Flanagan, was , to expire 'on May 31, 1981 , and continue
in full force and effect from year to year thereafter
unless timely written notice of change was given at least
90 days ,prior to the'anniversary date.
In February 1980, Respondent applied for membership
in CRCA and was admitted. Respondent made an initial
dues payment 'on 'February 1, 1980, and continued to pay
dues and remained a member in good standing of CRCA
until April 1982.2
The Union thereafter negotiated another, supplemental
agreement with CRCA that was effective June 1, 1981,
and extended through May 31, 1982, and from year to
year thereafter unless timely notice of change is given at
least 90 days prior to the anniversary date. At this point,
Respondent was included as an employer member of
CRCA. The Association listed Respondent as a member
in a list sent to the Union prior to the commencement of
negotiations . CRCA routinely sends letters to its mem-
bers notifying them that it intends to negotiate with cer-
tain unions for them unless a member gives, timely notice
of its desire to withdraw. CRCA sent such a letter to all
its members, including- Respondent, on December 17,
1980. There is no evidence that Respondent elected to
withdraw from multiemployer bargaining. Nor is there
any evidence that Respondent sought to alter the 1980
supplemental agreement it signed -with the Union that re-
newed itself by its terms each year.
In addition to filing' monthly fringe benefit reports, Re-
spondent signed and kept in force throughout the period
from September 1977 to April 1982, except for brief
lapses, a wage and fringe, benefit bond. The first bond,
which replaced a $5000 check deposited with the Union
at the time of the execution of the August 23, 1977
agreement, was dated September 12, 1977. The bond ac-
knowledged that Respondent was operating under a col-
lective-bargaining agreement with the Union and had
agreed to pay the wages and fringe benefit contributions
for all union members "or other employees" working
pursuant to the Union's bargaining agreement. If Re-
spondent failed to do so, the American Druggist Insur-
ance Company agreed to be liable for the amounts.
It is conceded that Respondent did not fully report to
the union trust funds all the hours of all the employees
who worked for it. It is also conceded that Respondent
did not pay the contractual wage rate to its employees.
It is also conceded that Respondent did not require all its
employees to become union members, but instead paid
for the cards of some union members and distributed
them to different employees who were not union mem-
bers.
It is further conceded that, -at all material times, Re-
spondent paid its employees with paychecks either from
the American Thoro-Clean account or the -Unico ac-
count, depending on which company had available funds
at the time.
As early as July 12, 1978, the Union, through one of
its representatives, John Martini, learned that Respond-
ent was not paying the contractual wage rate and that
some of its employees were not union members. Appar-
ently, as a result of this or other reports of noncompli-
ance, the Union filed a grievance against Respondent
and, on September 8, 1978, the Joint Adjustment Board,
2 In Apnl 1982 after the hearing in this case opened, Respondent with-
drew from CRCA and also withdrew recognition from the Union. The
issues that may be presented by these actions are not the subject of this
case because the complaint was not amended to address such issues To
the extent such conduct could be thought to limit Respondent's liability
in this case, the matter may be considered in compliance proceedings
AMERICAN THORO-CLEAN
convened under the standard working agreement , consid-
ered the grievance that alleged that Respondent had not
paid wages or fringe benefits in accordance with the
contract and had not deducted union dues for, its em-
ployees and forwarded them to the Union as required by
the contract. The Union apparently caused an investiga-
tion and an audit to be made to,ascertain Respondent's
compliance with' the contract that by this time had been
renewed in August 1978.
On September 6, 1978, Respondent , in a letter written
by Brian Flanagan to a trust fund auditor or official, ad-
dressed the dispute . Flanagan listed several categories of
employees and stated his position about whether they
were covered under the agreement of the parties. The
first was a list of employees taken from Respondent's
September 30, 1977 quarterly tax report that he alleged
were "employed by our firm prior to the executions of
our binding agreement with the union" and thus were
exempt from dues and payments . The second category of
employees included those who allegedly worked on
maintenance of the machinery and thus exempt from
coverage . The third group allegedly worked outside the
jurisdiction and the fourth included employees listed as
union members and which , according to Flanagan, were
covered under the agreement.
The dispute over compliance continued in 1979 be-
cause, on February 20, 1979, Flanagan sent another letter
to trust fund officials .3 He repeated the arguments set
forth in his September 6, 1978 letter, although the named
employees were different in some respects from those
listed in the earlier letter . He also added a new category
of employees that , he asserted were exempt from cover-
age because they worked less than 7 days, an apparent
reference to the union-security provisions of the applica-
ble agreement . The letter apparently dealt with the same
timeframe as the - earlier letter , namely, the period imme-
diately following the execution of the August 23, 1977
agreement.4
3 Union officials also serve as union trustees to the trust funds and
therefore communications with the trust funds undoubtedly came to the
attention of the Union.
4 Respondent objected to the admissibility into evidence'of the Flana-
gan letters on the grounds that they were addressed to trust fund officials
who were not parties to these proceedings and because they were sent in
the course of settlement discussions I reaffirm the admissibility of these
letters First of all , the letters were introduced after Respondent had in-
troduced into evidence a September 1979 letter from a union official to
its attorney advising him to file a breach of contract suit against Re-
spondent. Secondly, the Flanagan letters' revealed an inconsistency with
his testimony that suggested a very limited bargaining relationship with
the Union Third, although it appears that a lawsuit was filed as a result
of the contractual dispute between the Union and Respondent , Flanagan
was unable to specify when it was filed The record contains no elabora-
tion on this point Fourth, the letters themselves do not amount to an
offer of compromise. They state Respondent's position concerning the
employment of certain categories of employees at different times and in
different circumstances They thus set forth specific facts Accordingly, I
do not believe that the letters are inadmissible as evidence of compromise
or offers of compromise
Rule 408 of the Federal Rules of Evidence supports my ruling The
rule excepts from its scope "evidence otherwise discoverable" and evi-
dence relating to the credibility of a witness Moreover, the I advisory
note accompanying the rule makes clear that "evidence of unqualified
factual 'assertions is admissible " I perceive no policy considerations-and
none have been cited tome in brief-that require the exclusion of these
highly relevant letters, particularly in view of Flanagan's testimony in
this case
1113
About September 25, 1979, Union Representative Mar-
tini checked another of Respondent's jobs and found two
nonunion employees working on the job . They said they
had been working for Respondent for about 2 weeks and
that they were earning less than the contractual wage
rate then in effect . Martini told them "this is the second
or third time that I have caught you here with non-union
people on the job" and he asked the employees to have a
management official call the Union.
On September 26, Martini wrote a letter to the Union's
attorney notifying him of the above job check. He
named the two individuals, working for Respondent by
name, including David Majestic, and stated that they did
not have union identification and that they had been
working at less, than the contract, rate. He ended the
letter by stating,, "The Union received no calls concern-
ing these two men. We wish to file a breach of contract
against this firm. The firm has done this on many occa-
sions."
In March 1980 one of the employees who was
checked by Martini, David Majestic, was working at an-
other jobsite when a union representative approached
him and Supervisor Gary Carlson while they were re-
pairing a vacuuming machine . He asked if Majestic had a
union card and Carlson replied that Majestic was a com-
pany mechanic on a service call. Majestic actually per-
formed vacuuming work and, after completing the re-
pairs on the vacuuming machine, Majestic went back to
his normal work duties. After Majestic returned to the
office that night, Majestic was issued a union card with
the name David Sobut on it and he was told by Carlson
to carry it at all times and to show it to union officials
who checked, the jobsites. Sobut was a salesman for Re-
spondent and was not performing roofing work at this
time.
The next day, Majestic was checked by union officials.
He showed them Sobut's card. At this time, two of Re-
spondent's employees were removed from the job be-
cause they did not have union cards. After the union
representatives left, the two employees returned to work.
Later the union representatives returned and the employ-.
ees were again removed from the jobsite.
Majestic continued to be , issued a union card under `an-
other person 's name, either by Carlson or Brian Flana-
gan., He showed the cards to union officials who checked
for them at various jobsites. Other employees were also
issued cards by Carlson. Gary Carlson acknowledged
that he gave Majestic and other employees the union
cards of other individuals,, including his own.
The minutes of a November 25, 1980 meeting of the ,
Joint Adjustment Board reveal that the Union once again
filed a grievance against Respondent for violation of the
union-security and bonding provisions of the contract.
On July 16, 1981, shortly after he quit Respondent's
employ, ,Majestic wrote a letter to the Union notifying it
of Respondent's issuance to him, of union cards of other
employees. He, also confirmed that he did not earn the
contractual wage rate and stated that hours and wage
rates were not written on his check, stubs after October
1979. Thereafter, the Union continued to check Re-
spondent's jobs and determined that nonunion employees
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were -carrying the fully paid union cards _of other em-
ployees.
On August 4, 1981,-the Union filed the unfair labor
practice charge that spawned this case.
The complaint issued on September 15, 1981, and, on
September,30, 1981, Respondent filed its original answer.
The answer admitted certain allegations, including alle-
gations that it' was a member of CRCA 'and that CRCA
was authorized to bargain on its behalf. The answer also
admitted that since' "at least on or about June 1, 1978
and at all times material herein, the Union has-been the
designated exclusive collective bargaining representative
of` the Respondent's employees" although it' questioned
whether its employees were included in the complaint's
unit description. -
On April 1, 1 1982, the first day of hearing in this case,
Respondent appeared through a new counsel who
moved to postpone the hearing in this case. I granted the
motion. Respondent was also permitted, over the objec-
tions of the General Counsel, to file a new and amended
answer that altered-the earlier answer and denied the al-
legations set forth above that had been admitted. Re-
spondent also denied other allegations that had previous-
ly been admitted and was permitted- to interpose affirma-'
tive defenses not pleaded in the original answer.
At the Bearing, Respondent's counsel also announced
that Respondent was withdrawing from CRCA and noti-
fied the Union that it was terminating "the present agree-
ment to the extent we may have one." Respondent ap
parentiy served CRCA with written notification that it
was withdrawing from ' the Association., Minutes of a
CRCA meeting dated April 15, 1982, show that CRCA,
viewed such notification, which was served on April 1,
as tardy and determined that Respondent "fall[s] under
the Agreement as signed."
B. Discussion and Analysis
1. The Union's status as bargaining representative
As shown in the factual statement, Respondent, at all
times material, was party to collective-bargaining agree-
mentswith -the Union. Respondent nevertheless argues
that.the Union -did not have representative status and
that, consequently, Respondent had no obligation to bar-
gain. I reject these contentions.
It is well settled that "the existence of a prior-contract,
lawful on its face, raises a dual presumption of majori-
ty-a presumption that the union was the majority-repre-
sentative at the time the contract was executed, and a
presumption that its majority -continued at least through
the life of -the contract." Barrington Plaza & Tragniew,'
185 NLRB 962, 963, (1970), enf. granted in part and
denied in part 4'70 F.2d -669 (9th Cir. 1972). Moreover, a
labor organization's continuing majority "may not be
questioned-during -the term of a contract." Ibid. See also
Hezton Furniture Co., 111 NLRB 342 (1955).
In 1977, 1978, and' 1990, Respondent signed agree-
ments with the Union that contained valid union-security
clauses. In June 1981 and thereafter, Respondent was
bound by the agreement negotiated on its behalf by
CRCA.5
Even if the CRCA agreements were not considered
binding, Respondent was bound by the June 1980 agree-
ment that had been renewed automatically for another
year in June 1981 and would still have , been operative at
the time of the hearing . Respondent never sought to
withdraw from the 1980 agreement . Nor at any time
during the period from August 1977 until the commence-
ment of the hearing in this case did Respondent seek to
alter or terminate its existing collective -bargaining agree-
ments with the Union or take the position that it was not
bound by a collective-bargaining agreement. Indeed,
quite the contrary is true. It continued to file fringe ben-
efit reports and make fringe benefit payments and to
carry a bond to guarantee such payments ., It signed suc-
cessive agreements and assumed, in its communications
with the Union , that , it had binding agreements with- the
Union. - -
Thus, under ordinary circumstances, Respondent
would be precluded from asserting - that it could, during
the term of its, agreements , question the Union's repre-
sentative status.
Respondent seeks to avoid the effect of the 1978, 1980,
and 1981 agreements by contending that the original
August 23 , 1977 contract was obtained through coercion
and that it did not accurately reflect the agreement of
the parties . These, contentions are completely- without
merit.
First of all, the allegation that the original contract
was secured by coercion is barred by the statute of limi-
tations set forth in Section 10(b) of the Act. No unfair
labor practice charge was, filed at the time and Respond-
ent is thus precluded from raising the issue at this late
date . See Pacific Intercom Co., 255 NLRB 184,- 191
(1981), enf. granted ' 679 F .2d 900 (9th Cir . 1982). Nor-
does the record support such a- fording. in -any event.
Brian Flanagan testified that Union Representative Miller
told him in August 1977 that Respondent was working
on a union job and that if it did not sign an agreement,
the Union would , "picket us and other things." Miller
denied making any such threat. I credit Miller who im-
S The overwhelming documentary and testimonial evidence supports
this finding. As shown in the 'factual statement, Respondent became a
member of CRCA whose bylaws made clear that it was bargaining on
behalf` of its members. CRCA sent letters to its' members poor to the
commencement of negotiations and gave them an opportunity to with-
draw if they' so desired. Respondent continued to pay CRCA dues and
did not seek to withdraw from CRCA until the first day of the hearing in
this case.
Flanagan's testimony to the effect that Respondent did not receive
communications from CRCA and that he did not' know that CRCA rep-
resented Respondent in negotiations is not only insplausible but the prod-
uct of an unreliable witness, as documented elsewhere in this decision In
addition, Flanagan's testimony is contradicted by the statement of his
own attorney Although I permitted Respondent to, amend its answer
after it engaged new counsel, the original answer filed by its counsel
admits the allegation that it was a member of CRCA and that CRCA was
authorized to bargain on its behalf. Thus, although it "cease[d] to be [a]
conclusive judicial admission," the Respondent's 'original answer "still re-
mains as a statement once seriously made by an authorized agent, and as
such it is competent evidence of the facts stated, though controvertible,
like any other extra-judicial admission made by', a party or his agent"
Contractor Utility Sales Co. v Certain-Teed Products Corp., 638 F.2d 1061,
1084 (7th Or 1981), quoting from established authorities
AMERICAN THORO-CLEAN
pressed me as a candid, reliable, and disinterested witness
who had been retired from the Union's employ for some
4-1/2 years at the time he testified. Flanagan, on the
other hand, seemed to me to be tailoring his testimony to
conform to a litigation theory. His testimony contradict-
ed in some respects prior statements and letters and he
seemed less forthcoming when questioned by the Gener-
al Counsel than when questioned by his own counsel.
His vague reference to "other things"' hardly demon-
strates reliability. Moreover, it falls far short of a threat.
Flanagan's reference to picketing is likewise ambiguous
because a union is certainly entitled to picket a jobsite
either to protest the presence of nonunion contractors' or
to seek recognition so long as an election petition is filed
within 30 days. In short, Respondent's coercion argu-
ment is unavailing.
Respondent's other argument, also based on Flanagan's
testimony, is that Miller agreed with Flanagan, that Re-
spondent need only employ "some" union members and
it need only employ union members on so-called union
jobs. Miller also denied this aspect of Flanagan's testimo-
ny. I find that Flanagan's testimony in this respect is like-
wise not credible. First of all, the common sense parole
evidence rule makes such evidence unreliable in, refuting
a clearly worded written agreement. See Precision Anod-
izing & Plating, 244 NLRB 846, 857 (1979). In the instant
case, Flanagan's alleged understanding of the bargain-
with the vague reference to "some" union members-is
contradicted by the written agreement he signed on
August 23, 1977, as well as by all the other documents
he signed shortly thereafter and indeed throughout the
next 4-1/2 years, including successive agreements, bonds,
letters, and fringe benefit reports. Moreover, ' as I have
indicated, I found Miller to be a more reliable witness
than Flanagan. Flanagan's testimony is not, only implausi-
ble but, rampant with inconsistencies. For example,
Flanagan testified that he and Miller never discussed
rates of pay or benefits for employees. Yet he handed
over a $5000 check and later secured a bond-to ensure
the payment of wages and, benefits under the agreement.
Flanagan also testified that after August of 1977 he uni-
laterally decided which employees would be required to
become union members under the alleged agreement that
"some" were to become union members. Why, if, as
Flanagan testified, Miller coerced him into signing a con-
tract, would he orally give Flanagan -a break and agree
to alter a written agreement and indeed to give Flanagan
carte blanche to decide who would become union mem-
bers? Why would Miller insist on a bond and why would
Flanagan obtain a bond which clearly recognized that
Respondent was covered by a collective-bargaining
agreement for "all employees?" Why, if Miller had
agreed that only "some" employees should be union
members, did Respondent conceal its use of nonmembers
by having the cards of union members used by other in-
dividuals who were not union members? Why would
Flanagan write a letter to the union trust funds in 1978
acknowledging that he executed a "binding agreement"
in August 1977? And why would an intelligent business-
man sign a contract and a surety bond which directly
contradict his so-called understanding of his relationship
with the Union and, indeed, sign another contract a year
1115
later? Flanagan's testimony in this respect is beyond
belief.
Respondent also contends that the initial agreement of
the parties and each of the successive agreements were
prehire agreements under Section 8(f) of the Act. It thus
seeks to avail itself of the doctrine that an employer may
cancel an 8(f) agreement at will during its term unless
the union has achieved majority status. See Iron Workers
Local 103 (Higdon Contracting), 216 NLRB 45 (1975),
enf denied 535 F.2d 87 (D.C. Cir. 1976), reversed 434
U.S. 335 (1978); and see R. J. Smith Construction Co., 191
NLRB 693, 695 (1971), reversed and remanded sub nom.
Operating Engineers Local 150 v. NLRB, 480 F.2d 1186
(D.C. Cir. 1973).
There is precedential support for the proposition that
the above doctrine applies only to initial 8(f) agreements
and does not apply where successive agreements have
governed the relationship of the parties. See Bricklayers
Local 3 (Eastern Washington AGC), ' 162 NLRB 476, 478-
479 (1966), enf. granted 405 F.2d 469 (9th Cir. 1968);
Williams Enterprises, 212 NLRB 880, 885 (1974), enf
granted 519 F.2d 1401 (4th Cir. 1975).6 The Board has
never explicitly overruled Bricklayers, but it has repeat-
edly sidestepped -the case and, in effect, overruled it sub
silentio by requiring an inquiry into majority status even
where successive agreements have defined a long-term
bargaining relationship. See Precision Striping, 245 NLRB
169 (1979); Construction Erectors, 252 NLRB .319, 324
(1980); Haberman Construction Co., 236 NLRB 79 fn. 1
(1978); and Carmichael Construction Co., 258 NLRB 226
fn. 1 (1981). See also The General Counsel's 1979 Guide-
lines for Handling-Section 8(f) Cases reported in the 1979
BNA Labor Relations Yearbook at pp. 355-358 when
the then General Counsel took the position that Bricklay-
ers is no longer Board law. An orderly development of
the law and proper guidance to litigants and the public
demands that the Board independently analyze the Gen-
eral - Counsel's position and either explicitly overrule
Bricklayers or explain its continued validity.'
As the Board stated in the Bricklayers case
It is apparent from the foregoing that the bargaining between
AGC and the Union presents the situation of a continuing bargaining
relationship, a situation quite different from that which Congress had
in mind when enacting Section 8(f)(1), to wit, an initial attempt by a
union and an employer in the construction industry to commence
such a relationship Thus, the entire legislative history of Section
8(f)(1) , is couched in terms of "prehire agreements," a reference
which can have no meaning in the situation where, as here, the par-
ties are continuing an existing bargaining relationship under which
employees have previously been hired Particularly is this so where,
as in this case, the previous agreement contained a lawful union-se-
curity- provision Additionally, one of the most frequently cited por-
tions of the legislative history of Section 8(f) reveals that the Con-
gress envisioned its prehire provisions as applying only to the situa-
tion where the parties were attempting to establish a bargaining rela-
tionship for the first time
In the instant case, of course, Respondent Union had for many
years been the recognized bargaining agent of the employees of the
employers comprising AGC. We hold, therefore, that the tests to be
applied in determining the fulfillment of the bargaining obligations of
the parties herein are those generally used under Section 8(a)(5) and
8(b)(3) and, therefore, it is unnecessary to pass upon the scope of
bargaining obligations under Section 8(f)
' In neither R. J Smith nor in Higdon did the Board discuss the Brick-
layers case, although in R J. Smith the trial judge did so Nor did the
Continued
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
An inquiry into majority status, is extremely difficult
when, as here, it deals with events that have occurred
some years before the alleged refusal to bargain . Never-
theless, I read the authorities to require such an inquiry
in this case despite the unbroken string of agreements be-
tween the parties.
Assuming that the initial agreement of the parties on
August 23, 1977 , was an 8(f) agreement,"' the available
evidence shows that the Union attained majority status,
shortly after the agreement was signed.9
Pursuant to the August 1977 agreement , Respondent
filed a fringe benefit report for its employees in Septem-
ber 1977 . All the employees listed were union , members,,
according to Brian Flanagan . This report is the best
available evidence of the size of the unit. Respondent
failed to provide its payroll records for the several
months after the execution of the August 23 , 1977 agree-
ment because, according to Respondent , those records
were unavailable . Two other pieces of evidence-quar-
terly tax reports and letters of Respondent attempting to
explain its liability for the fringe benefit and dues pay-
ments-are less reliable in and of themselves , but offer
some support for the finding when considered together
with other evidence . Flanagan 's testimony that attempts
to reconstruct the employee complement some 5 years
before is likewise unreliable, although parts of it support
rather than detract from a finding of majority status. - .
Respondent's employee fringe benefit report for Sep-
tember 1977, signed by Brian Flanagan, lists four em-
ployees: Mueller, Frohlich , Ferek, and Bleuthner
(Bleuthner's name , is misspelled on the report). All. four
of these employees were union members . Documentary
evidence shows that Ferek , Frohlich , and Mueller signed
union application cards in September and that Bleuthner
made an initial dues payment on October 4, 1977. Flana-
gan testified that all employees he reported on the fringe
benefit forms were union members - 10 Both the collec-
tive-bargaining agreement and the Respondent's bond
make clear that fringe benefit payments are to be paid on
behalf of all employees. The instructions on the reverse
of the fringe benefit forms also provide that all hours of
all foremen , apprentices , and journeymen should be re-
ported. In these circumstances , it is reasonable to con-
elude that the fringe benefit report was an accurate re-
flection of the employee work force and that, all these
employees were union members."
Flanagan testified that in, August 1977, when he signed
the agreement with the Union, he had a work force of
six employees , including Mueller whom he identified as a
supervisor . However, other testimony by, Flanagan sug-,
gests that Respondent only had four employees at this
time. Thus, Flanagan testified that Respondent operated
two machines with two employees each until _A _ third ma-
chine was acquired in the spring of 1978. This would be
consistent with the number of employees, listed on the
September 1977 fringe benefit report.12
An analysis of the, other available evidence reinforces
rather than refutes the finding of majority status.
Respondent submitted as evidence quarterly tax re-
ports for the third quarter and for the fourth quarter of
1977. Those reports list the names of all employees who
worked for Respondent in each quarter and the wages
earned by them. The reports list 10 employees who
worked in the third quarter and 21 who worked in the
fourth quarter . There is no indication , however, concern-
ing when each employee was hired or when he left Re-
spondent's employ. Many of these individuals worked
only a short period during the quarter. There is thus no
way to compute, from these reports , the permanent em-
ployee complement at - the end of September or at the
end of October, or, indeed, at any particular point in
time. The evidence is thus inconclusive, in and of itself,
on the issue of how many employees were in the unit
from which to compute majority status. Is
Also in evidence are two letters-one written , in Sep-
tember 1978 and another in February 1979-where Re-
spondent, through Brian Flanagan, attempted to explain
the quarterly tax reports to officials of the Union and the
fringe benefit trust funds. Respondent's third quarter tax
report, dated September 30, 1977, lists 10-employees who
worked for wages at -some point during the quarter. In
Flanagan 's September 1978 letter , Respondent- stated that
a group of named employees , all whom were listed in
the September, 30, 1977 tax report, were employed "prior
to the executions of our agreement with the union."
Supreme Court do so in its decision in fhgdon that basically approved the
Board 's R J. Smith rationale . However, it is not clear to me that either
of these cases is inconsistent, with Bricklayers In both cases there was a
significant hiatus , between previous contracts and those under consider-
ation as 8(f) contracts. There was thus no continuous bargaining relation-
ship based on an unbroken stung of agreements as in Bricklayers (see 191
NLRB 693 and 216 NLRB 45).
fi Respondent is clearly an employer in the construction industry and
the parties signed the agreement without regard to whether the Union
had a preexisting majority
The appropriate unit in this case is that alleged in the complaint and
set forth in the applicable standard working agreements and the supple-
mental agreement of the , parties. Respondent conceded at the hearing,
and does not dispute, that an appropriate unit consists of all Respondent's
employees engaged in work related to its roof vacuuming operation
except supervisors , guards, and office clerical employees.
10 In light of this concession , Respondent 's contention that these indi-
viduals were not union members because they did not complete the pay-
ment of their initiation fees is specious In any event, malonty support
need not be based on a strict finding of union membership . See Terrell
Machine Co. v. NLRB, 427 F 2d 1088, 1090 (4th Cir 1970), cert denied
398 US 929
II Respondent also contends that payments to the trust fund could not
properly have been made prior to Bleuthner's becoming a member of the
Union and that Bleuthner did not become a member until October 4,
1977 This contention is unavailing. The agreement of the parties pro-
vides for trust fund payments for all employees The date that Bleuthner
signed a union application card is unclear in the record, the record re-
veals he signed a dues payment card on October 4 However , Flanagan's
testimony is that he reported only union members on the fringe benefit
reports. In any event , even if Bleuthner is not counted , the three remain-
ing individuals on the September fringe benefit report, including Mueller,
whom Flanagan described as a supervisor , were clearly union members.'
All had signed cards in September 1977.
i 2 At still another point Flanagan testified that he had five or six em-
ployees at this time and brought two or , three down to the union hall to
sign application cards The documents in evidence shows that at least
three individuals signed cards in September.
18 I also note that the quarterly tax reports were introduced, into evi-
dence through Flanagan and not the accountant who purportedly com-
piled them Flanagan testified they were prepared from canceled payroll
checks and a , Iist of employees supplied to the accountant by Respondent
It appeals that the documents were limited to those of American Thoro-
Clean and did not include documents of Unico whose checks were also
used to pay employees.
AMERICAN THORO-CLEAN 1117
Indeed, of the 10 employees listed on the tax report, 8
were alleged in the letter to have been employed prior to
the execution of the August 23 , 1977 contract . Of these
10 employees, only Dan Frohlich and Andrew Mueller
were admittedly employed after August 23, according to
Flanagan's letter . Both were, of course , union members
and both were listed on the September fringe benefit
report.
In his testimony , Flanagan attempted to identify Re-
spondent 's employees as of August 23, 1977. He referred
to Respondent 's quarterly tax report and named six
people: Larry Bitter, Dean Buhlos, Joe Bonass , Jeff Cun-
ningham , Andrew Mueller, and Dan Frohlich. He also
testified that two individuals who were listed as having
worked in September 1977 on the employee fringe bene-
fit report, signed by -Flanagan and sent to the trust funds,
were not in fact employed in September . These individ-
uals were Ferek and Bleuthner , whose names appear on
the September fringe benefit report but do not appear on
the September 30, 1977 quarterly tax report.
Flanagan's testimony in this respect is no more reliable
than other aspects of,his testimony that I have already
rejected. First of all, his specific identification of employ-
ees employed as of August 23, 1977, seems to be contra-
dicted by.a letter sent by him to union and trust fund of-
ficials in September 1978 that stated that Bitter, Buhlos,
Bonass (misspelled as Bannis), and Cunningham were
employed "prior to the executions of our binding agree-
ment with the union ." In the February, 1979 letter,
Flanagan suggested that proof of this statement could be
established by comparing "our August payroll register
and our year end pay register." None of these individuals
were listed in the September 1977 fringe benefit report
or in any of the other fringe benefit reports thereafter
filed in 1977 . It is thus reasonable to infer that these indi-
viduals were not employed in September 1977.
Regarding Flanagan 's testimony that Bleuthner and
Ferek were not employed in September , this contradicts
the September fringe benefit form that Flanagan himself
signed . There is no reason to give that report less weight
than the quarterly tax report that fails to list these em-
ployees ., Independent documentary evidence shows that
Ferek signed a union application card on September 16,
1977,the ' same date that Mueller and Frohlich signed
similar cards . It is thus likelythat Ferek was employed in
September, as reflected in the fringe benefit report. It
would be unlikely that he would have signed a union
card before being employed . And because Ferek's name
was mistakenly left off the quarterly tax report for Sep-
tember, it is conceivable that Bleuthner 's name was simi-
larly omitted from that report . The September 1977
fringe benefit report that lists both men as'employees is
more reliable than Flanagan's own testimony, of course,
because, in September 1977, he had no interest in disput-
ing the Union's representative status. Moreover, the
fringe benefit report signed by Flanagan has a certain in-
herent reliability because it would be unlikely that an
employer would deliberately , or even mistakenly, make
payments on behalf of people who were not employed at
the time payments were required to be made.
Finally, as indicated above, the contract of the parties
contained a union-security clause that required employ-
ees to become union members within 7 days after the
contract was signed or after they became employed. Al-
though there is evidence in this record that Respondent
often employed individuals who were riot union mem-
bers and later circumvented this very union-security
clause, it is unlikely that the clause was violated [ in Sep-
tember 1977, the month after the contract was signed. Of
the 10 employees listed in the September 1977 quarterly
tax report, 8 were admittedly employed prior to the exe-
cution of the August 23, 1977 agreement and the other
two- were clearly union members. Moreover, the four
employees listed on the September 1977 fringe benefit
report were union members. Thus, it appears that the
union-security clause was complied with at least through
September 1977 and this offers further support to the
finding that the Union attained majority status. See
Custom Sheet Metal & Service Co., 243 NLRB 1102, 1108
(1979), enf. denied on other grounds 666 F.2d 454 (10th
Cir. 1981).
In sum, although the absence of relevant payroll
records and the passage of time renders certainty elusive,
an analysis of the available evidence leads to a fair con-
clusion, that the Union attained majority status shortly
after the execution of the August 23, 1977 agreement.14
Because the Union had attained majority status shortly
after the signing of the August 1977 agreement,, Re-
spondent's subsequent membership in and authorization
of CRCA to bargain on 'its behalf on a, multiemployer
basis operates to merge that unit into the larger unit. Ac-
cordingly, Respondent may not question the Union's rep-
resentative status during the term of the 1981 CRCA
agreement . See Authorized Air Conditioning Co., 236
NLRB 131 (1978), enf. granted 606 F.2d 899 (9th Cir.
1979), cert. denied 445 U.S. 950 (1980).15
1
ia The Respondent also contends that the Union must demonstrate its
majority ^oneach jobsite rather than on a companywide basis. This con-
tention is without merit . It is clear that there is a distinction between
those employers who hire their employees on a project-by-project basis
and those who do not When the employer hires a permanent and stable
work force to work on a multisite basis, a unionseeking to convert an
80) agreement into a 9 (a) bargaining relationship needs only to show it
achieved, majority status in that work force and the employer is obligated
to recognize the union at all subsequent jobsites In contrast, where an
employe{ hires on a project-by-project basis, with little or no carryover
from site to site, the union must demonstrate its majority status at each
jobsite. See Hagetnan Underground Construction, 253 NLRB 60, 62 (1980)
Her, it is clear that Respondent does not hire on a project by project
basis. Flanagan's testimony was that he hired employees for an indefinite
period and employees remained from season to season These employees
generally went from site to site since many of Respondent 's jobs lasted
only 2 or 3 days. Indeed, some jobs had only two employees on them
since the evidence shows that Respondent only had two vacuuming ma-
chines at this time,' each with two employees assigned to it Respondent's
relationship and contracts with the Union also confirms that it did not
consideryitself a project-by-project employer. There is absolutely no evi-
dence that Respondent hired only on a project by project basis Because
the record is clear on this point, there is no need to consider the turnover
of employees , as Respondent suggests , to divine the nature of Respond-
ent's operation or to determine whether Respondent hired on a project-
by-project basis Accordingly, Corrugated Structures, 252 NLRB 523
(1980), cited by Respondent , is distinguishable on its facts . In any event,
the asserted turnover occurred after the Union attained majority status in
September 1977
is This, the appropriate unit after June 1981 is as follows-
All employees employed by the employer members of the Chicago
Roofing Contractor 's Association who are engaged in roofing work
Continued
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The violation -
It is undisputed that Respondent did not pay its em-
ployees the contractual rate set forth in the collective-
bargaining agreement. It is also undisputed that Respond-
ent failed to make fringe benefit payments for all hours
worked for all its employees. The applicable agreements
clearly show that such payments were required. Re-
spondent's conduct constitutes a unilateral change of ex-
isting agreements and is violative of Section 8(a)(5) and
(1) of the Act. See Merryweather Optical Co., 240 NLRB
1213 (1979); Pacific Intercom Co., 255 NLRB 184 (1981);
and Sun Harbor Manor, 228 NLRB 945, 946 (1977).
'Respondent also does not 'dispute that it supplied its
nonunion employees with the union cards of other em-
ployees. By such conduct Respondent attempted to cir-
cumvent the ' union-security- provisions of the applicable
agreement and further violated Section 8(a)(5) and (1) of
the Act.16
3. The 10(b) problem
The charge herein was filed on August 4, 1981. Thus,
under ordinary circumstances, application of Section
10(b) of the Act would preclude an unfair labor practice
finding prior to February 4, 1981, 6 months before The
filing of the charge. From February until June 1981, Re-
spondent was bound by its 1980 contract signed by John
Flanagan, president of Respondent. From June 1, 1981,
and' thereafter Respondent was bound by the contract
signed on its behalf by CRCA. To the extent that Re-
spondent did not comply with these agreements by not
paying contract rates and fringe benefit payments and by
having nonunion employees work under the cards, of
other individuals, in violation of the union-security
clause, Respondent unilaterally changed existing agree-
ments and in effect repudiated them in violation of Sec-
tion 8(a)(5) and (1) of the Act:
The General Counsel requests an unfair labor practice
finding and a remedy for the period beyond February 4,
1981, to the date of the initial agreement on August 23,
1977. The basis of his request is that Respondent alleged-
ly fraudulently concealed its contractual noncompliance
from the Union and that the Union did not fully under-
stand the depth of Respondent's noncompliance until
July 1981 when employee Majestic notified it of the use
of union cards by nonmembers.
The General Counsel's attempt to reach beyond the
10(b) period and indeed to reach the expired and super-
seded agreements of 1977 and 1978 would ordinarily not
be permitted. However, the General Counsel correctly
or work incidental thereto, as described in the Chicago Roofing
Contractor's Association contract with the Union, excluding guards,
supervisors and clerical employees16
Respondent's contention that the Board should stay its hand and
leave the parties to their contractual remedies is without ment The alle-
gations herein do not simply involve a difference in interpretation of con-
tract They go to the very heart of the bargaining relationship, and, if
true, demonstrate a repudiation of that relationship, conduct which the
Act proscribes. See Oak Chff-Golman Baking Co, 207 NLRB 1063, 1064
(1973), enf granted 505 F.2d 1302 (5th Cir 1974). Thus, even though the
Union may have a right to enforce its agreements in district court, the
Board retains jurisdiction to enforce the bargaining obligations of the
Act See NLRB v- C & C Plywood Corp, 385 U S 421, 428-430 (1967), cf
Smith v. Evening News Assn, 371 U S 195, 197 (1962).
points out that Section 10(b) does not begin to run until
the aggrieved party "knew or should have known that
his statutory rights were violated," quoting from Wiscon-
sin River Valley District Council (Skippy Enterprises) v.
NLRB, 532 F.2d 47, 53 (7th Cir. 1976). The General
Counsel is also correct in his reference to the principle
that fraudulent concealment operates to toll the statute of
limitations, citing Pacific Intercom, supra.
The above principles do not apply in the instant case.
The -Union knew as early as July 1978 that Respondent
was not paying the contractual wage rate to employees.
Moreover, the Union knew throughout the period from
1978 to 1980 that Respondent was not fully complying
with the fringe benefit provisions of the contract of the
parties . It caused audits to be undertaken and there was
apparently an exchange of communications on the extent
of Respondent's fringe benefit responsibilities. The Sep-
tember 26, 1979 letter of Business Representative Martini
suggests the filing of a lawsuit. In addition, that letter
clearly shows that the Union was on notice of Respond-
ent's failure to live up,to the union-security provisions of
the applicable agreement . Indeed, in his letters of Sep-
tember 1978 and February 1979, Flanagan -alerted the
Union of his position that union dues were not payable
for certain employees. In these circumstances, I conclude
that the Union did indeed know or should have known
of Respondent's noncompliance with the contract. The
equitable estoppel principles referred to in Pacific Inter-
com thus do not apply here.
No such widespread knowledge of Respondent's non-
compliance was present in Pacific Intercom. The- General
Counsel's ' evidence of alleged concealment herein is in-
sufficient to excuse the Union from filing charges earlier
if it wanted to seek a Board remedy for pre-February 4,
1981 unfair labor practices . 'It is true, as the General
Counsel points out, that Respondent paid its employees
wages both from its American Thoro-Clean account and
from its Unico account. But there is' no further evidence
on this point from which it could be concluded that
these dual payments were used to conceal Respondent's
noncompliance with the wage or fringe benefit provi-
sions of the contract. The General Counsel did seek to
subpoena Unico's records but none were submitted into
evidence. It is difficult, in any event, to see how employ-
ee paychecks from different companies could have con-
cealed Respondent's noncompliance because the Union
clearly knew and focused on Respondent's noncompli-
ance with the wage and fringe benefit provisions of the
contract:-
Nor did Majestic's July 1981 letter concerning the
misuse of union cards reveal anything that would excuse
the filing of an earlier charge. In September 1979, after
Business Representative Martini checked one of Re-
spondent's jobs, he mentioned Majestic's name to the
Union's attorney as one who did not have a union card
and who was not being paid the contractual wage rate.
According to Majestic's testimony, the day after the first
job check, he used Sobut's card and withstood another
union job check. The ' Union clearly knew Majestic by
name but it made no effort to seek his union affiliation or
cure his failure to join the Union. The Union surely
AMERICAN THORO-CLEAN 1119
cannot argue that it did not know Majestic was not
Sobut. In any event, Majestic's letter did not deal with
the wage rate and fringe benefit issues that had been in
dispute continuously since 1978. Insofar as the letter re-
ferred to Respondent's noncompliance with the union-se-
curity provisions of the contract, the Union knew , of this
as well since 1978 and indeed knew of Majestic's failure
to join the Union in September 1979. -
In these circumstances, I find that the General Counsel
may not reach beyond the 10(b) period and may not re-
suscitate expired or superseded agreements in order to
litigate and remedy unfair labor practices that have
lapsed. My findings and remedies will thus be limited to
the period after February 4, 1981.
CONCLUSIONS OF LAW
1. By failing to make fringe benefit contributions for
all its employees, by failing to pay contractual 'wage
rates and by supplying nonunion employees with union
cards of other employees since February 4, 1981, Re-
spondent has unilaterally altered the terms of the collec-
tive-bargaining agreements in effect between it and the
Union, in violation of Section '8(a)(5) and (1) of the Act.
2. The above violations are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act after February 4, 19131, I shall
order Respondent to cease and desist therefrom and to
take certain affirmative action that is designed to effectu-
ate the policies of the Act. Respondent shall be ordered
to comply with the terms of the agreements in effect on
and after February 4, 1981, until such time as it has
given timely notice of withdrawal from said agreements.
Employees and the Union shall be made whole for the
losses they have incurred as a result of Respondent's fail-
ure to abide by the terms of said agreements. See Pacific
Intercom Co., supra, 255 NLRB at 185 and fn. 6 at 184-
185. Backpay is to be computed in a manner consistent
with the Board's policy as set forth in Ogle Protection
Service, 183 NLRB 682 (1970), with interest thereon as
set forth in Florida Steel Corp., 231 NLRB 651 (1977).
Additionally, Respondent is required to make the appro-
priate trust funds whole for losses suffered as a result of
Respondent's failure to adhere to the fringe benefit pro-
visions of the agreements set forth above. See Pacific
Intercom, supra, and Pullman Building Co., 251 NLRB
1-048 (1980).
[Recommended Order omitted from publication.]