Beech & Rich, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1990

300 N.L.R.B. 882 (N.L.R.B. 1990)

882
300 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has filed a motion to strike the Respondent’s excep-
tions and brief on the grounds that they do not conform to the specificity re-
quirements of Sec. 102.46 of the Board’s Rules, and because the Respondent
did not state concisely the grounds for the exceptions. We find that the Re-
spondent’s exceptions and brief substantially comply with the Board’s Rules.
Accordingly, the General Counsel’s motion to strike the Respondent’s excep-
tions and brief is denied. In considering the Respondent’s brief in support of
exceptions, however, we have not considered arguments or statements that are
based on information that is not part of the record evidence in this case.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
Based on certain remarks the judge made at the hearing, the Respondent has
alleged bias on the part of the judge and has requested a new hearing. We
have carefully examined the entire record, including the judge’s decision.
While we find that the judge made some intemperate remarks during the hear-
ing, we are convinced that the judge did not prejudge the case, make preju-
dicial rulings, or demonstrate a bias against the Respondent in his analysis or
discussion of the evidence. Further, there is no basis for finding that bias or
partiality existed merely because the judge participated in the examination of
witnesses and resolved important factual conflicts arising in the proceeding in
favor of the General Counsel’s witnesses. See ‘‘M’’ System, 123 NLRB 1281
(1959). Indeed, it is the duty of the judge to inquire fully into the facts. He
has the authority to call, examine, and cross-examine witnesses. See Sec.
102.35 of the Board’s Rules and Regulations. Further, as the Supreme Court
has stated, ‘‘[T]otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact.’’ NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949). Accordingly, based on the foregoing, the Respond-
ent’s request for a new hearing is denied.
3 We shall require that the Respondent shall make whole bargaining unit
employees for any loss of wages or other benefits they may have suffered as
a result of the Respondent’s unfair labor practices as prescribed in Ogle Pro-
tection Service, 183 NLRB 682 (1970), with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Because the provisions of employee benefit fund agreements are variable
and complex, the Board does not provide at the adjudicatory stage of the pro-
ceeding for the addition of interest at a fixed rate on unlawfully withheld fund
payments. Therefore, any additional amount owed with respect to the welfare
funds and the pension fund will be determined in accordance with the proce-
dure set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
The Respondent will also reimburse its employees for any expenses ensuing
from its failure to make contributions to the funds established by the collec-
tive-bargaining agreement between Local 759 and the Respondent. Kraft
Plumbing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981).
4 The Respondent’s exceptions do not attack the judge’s implicit finding that
Local 312 and the benefit funds were agents of Local 759 for the purpose of
requesting and receiving information relevant to administering the collective-
bargaining agreement between the Respondent and Local 759.
5 We find that the contract between the Respondent and Local 759 was an
8(f) agreement. The agreement was to expire in June 1989, which was after
the hearing in this case. Although John Deklewa & Sons, 282 NLRB 1375
(1987), enfd. 843 F.2d 770 (3d Cir. 1988), permits a party to repudiate its 8(f)
relationship on the expiration of a bargaining agreement, there is no evidence
that the Respondent effectively repudiated its relationship or agreement with
the Local 759. Accordingly, we leave to compliance the determination of
whether the Respondent is bound to any subsequent or successor agreements
under the principles of Deklewa. See Estrella Construction Co., 288 NLRB
1049 (1988).
Beech & Rich, Inc. and International Brotherhood
of Painters and Allied Trades, Local 759, AFL–
CIO, and International Brotherhood of Paint-
ers and Allied Trades, Local 312, AFL–CIO.
Case 7–CA–28670
December 13, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 21, 1989, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to modify his recommended remedy.3
We will also issue a new Order and notice that con-
form more closely to the violations found.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing
to pay contractually mandated fringe benefit contribu-
tions and by refusing to supply the Unions and the
benefit funds with information necessary and relevant
to Local 759’s functions as the exclusive collective-
bargaining representative of the unit employees.4 The
Respondent defends on the ground that, when its presi-
dent, Jim Beech, and Local 759’s then business rep-
resentative David Clark entered into the written collec-
tive-bargaining agreement, they orally agreed that the
written contract would ‘‘not be fully effectuated.’’ In
this regard, the Respondent contends that Beech and
Clark agreed that the contract would not be enforced
regarding nonunion projects and customers that the Re-
spondent had at the time the contract was entered into.
Assuming arguendo, contrary to the judge’s finding,
that an oral agreement existed between Beech and
Clark, we find that it could not be given effect. The
alleged oral agreement would not merely explain or
clarify the parties’ intent regarding provisions of the
collective-bargaining agreement but would instead in-
validate and nullify the written agreement. In these cir-
cumstances, we conclude that the parties’ written col-
lective-bargaining agreement sets forth the terms and
conditions of employment for the unit employees.5
ORDER
The National Labor Relations Board orders that the
Respondent, Beech & Rich, Inc., Battle Creek and
Plainwell, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing or refusing to give effect to and fully
comply with its 1987–1989 collective-bargaining
agreement and any successor agreements to which the
Respondent may be bound with the International
Brotherhood of Painters and Allied Trades, Local 759,
AFL–CIO.
883BEECH & RICH, INC.
6 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(b) Failing or refusing to contribute to the fringe
benefit funds as mandated by the 1987–1989 collec-
tive-bargaining agreement between the Respondent and
Local 759 and any successor agreements to which the
Respondent may be bound, and refusing to allow au-
dits as requested by the trustees of the fringe benefit
funds.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees whole with interest for any
wages and benefits they may have lost and expenses
they may have incurred as a result of the Respondent’s
failure to abide by the collective-bargaining agreement
with Local 759 which expired in June 1989, and any
successor agreements to which the Respondent may be
bound, and make all benefit fund payments owed to
the various benefit funds as required by those agree-
ments.
(b) Allow an audit of all payroll books and records
as requested by the trustees of the Unions’ benefit
funds.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facilities in Battle Creek and
Plainwell, Michigan, copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to give effect to and
fully comply with our 1987–1989 collective-bargaining
agreement with the International Brotherhood of Paint-
ers and Allied Trades, Local 759, AFL–CIO, and any
successor agreements to which we may be bound.
WE WILL NOT fail or refuse to contribute to the
Unions’ fringe benefit funds as mandated by the 1987–
1989 collective-bargaining agreement and any suc-
cessor agreements to which we may be bound.
WE WILL NOT fail or refuse to allow audits as re-
quested, pursuant to the 1987–1989 collective-bar-
gaining agreement, by the trustees of the Unions’
fringe benefit funds.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make employees whole with interest for
any wages and benefits they may have lost and ex-
penses they may have incurred as a result of our fail-
ure to abide by the collective-bargaining agreement
with Local 759 which expired in June 1989, and any
successor agreements, to which we may be bound, and
make all benefit fund payments owed to the various
benefit funds as required by those agreements.
WE WILL, on request, permit the trustees of the
Unions’ benefit funds to audit our payroll books and
records.
BEECH & RICH, INC.
Richard F. Czubaj, Esq., for the General Counsel.
George J. Brannick, Esq. (Brannick & Dudus), of Jackson,
Michigan, for the Respondent.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on November 23, 1988, and amended on
January 6, 1989, by International Brotherhood of Painters
and Allied Trades, Local 759, AFL–CIO (Local 759), the
Regional Director for Region 7 of the National Labor Rela-
tions Board (the Board) issued a complaint on January 10,
1989, alleging that Beech & Rich, Inc. (the Respondent) had
violated and continued to violate provisions of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer in which it denied the commission of any unfair labor
practices.
Pursuant to the notice contained in the complaint, a hear-
ing was held before me in Marshall, Michigan, on March 29,
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I have a problem with Clark’s credibility as well as Beech’s. His memory
on dates was not good; he gave no indication of why or under what cir-
cumstances he approached Beech & Rich; and he gave no reason why he per-
mitted Beech & Rich to sign a contract which mandated certain coverage and
obligation, and at the same time said to Beech that he did not have to live
up to those provisions. I do not credit this witness on items which are critical
to this case.
2 Nor any question of fraud or wrongdoing by either party, even though
there certainly are grounds for suspicion that some such considerations were
present here (see NDK Corp., 278 NLRB 1035 (1986)), but no probative evi-
dence beyond disbelief of the stories that were told by Clark and Beech.
3 Beech further told Root and Zugel that the only reason he had union work-
ers on the Simpson job was that work was slow at Kellogg (in Battle Creek)
where ‘‘he usually uses these union workers’’ and he temporarily shifted the
union people up to Simpson until things picked up at Kellogg. This could be
1989, at which the General Counsel and the Respondent
were represented by counsel, and had the opportunity to
present testimony and documentary evidence, to examine and
cross-examine witnesses, to make motions and statements in
support of opposed to motions, and to argue orally. After the
close of the hearing, the General Counsel and the Respond-
ent filed briefs, which have been carefully considered.
Based on the entire record and particularly on my evalua-
tions of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The parties agreed that Respondent is a Michigan corpora-
tion, having its usual place of business in Battle Creek,
where it is engaged in the business of commercial and indus-
trial painting and related services. During the calendar year
ending December 31, 1988, the Respondent performed serv-
ices valued in excess of $50,000 for customers located in the
State of Michigan, including the Kellogg Company and
Simpson Plainwell Paper Company, each of which has gross
revenues of over $500,000, and which annually purchase
from locations outside the State products and materials val-
ued in excess of $50,000 from points located outside of the
State. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties agreed at the hearing that Locals 759 and 312
are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Jim Beech, president of Beech & Rich, Inc., testified that
he had been running the Company since 1970. At one time
he had been a member of Local 759, and served his appren-
ticeship in the trade through that Local. The Company does
outside commercial painting and maintains a production
painting facility in its Battle Creek plant.
Beech’s demeanor was shifting and evasive and he seemed
to have, either intentionally or unintentionally, very little
memory about events which are critical to this case. For ex-
ample, he did not recall whether a document bearing his sig-
nature and dated October 7, 1986, was the signatory page to
a collective-bargaining agreement; and he would not, or
could not, identify his signature on a document dated June
17, 1987. He could not identify payroll documents which he
submitted to Simpson Plainwell Paper Company in August
1988, and he tried to disclaim responsibility for his ignorance
of company matters by saying, ‘‘I don’t handle the paper-
work’’ or ‘‘I don’t have this part of it.’’
For these reasons, I do not credit Beech’s testimony on
any significant matter except where that testimony is inde-
pendently corroborated.
In the fall of 1987, one David Clark, who became a mem-
ber of Local 759 in 1985, and by 1986 was a business rep-
resentative for that Local, testified that he attempted to nego-
tiate an agreement with Beech & Rich, and that he did nego-
tiate a first agreement on October 7, 1986, and a second on
June 17, 1987.1
Clark and Jim Beech apparently reached some sort of
agreement, although I do not accept the word of either that
this collective-bargaining agreement was just a trial of union-
ization and that Beech would ‘‘try to go do the best of his
ability to go strictly union on his work that he had’’ 2 years
after the signing of the 1987 contract.
I don’t know what these two people were up to, and I
really cannot speculate as to the cause of Respondent’s sign-
ing this document with no intention of honoring it. Certainly
the fact that Clark resigned as business representative for
Local 759 in April 1988, and went to work for Beech &
Rich in June of that year could be a reason for the bargain
Clark made with Beech, but that is only a suspicion.
Consistently with my credibility findings on Jim Beech
and David Clark, I cannot believe the testimony of either
Beech or Clark that there were exceptions and variances to
the unit description in the contracts, or that a waiver by a
duly authorized representative of the Union was granted.
There are, therefore, no questions as to application of the
parol evidence rule as maintained by the parties,2 or any
question about the meeting of the minds of these parties be-
fore the agreements were signed.
The evidence which the General Counsel has produced,
then, are the two signed agreements, which I find to be valid,
binding, contracts, the second of which, dated June 17, 1987,
was to remain in effect until June 1989. This last is an agree-
ment alleged in the complaint to be one entered into under
Section 8(f) of the Act, but no recession by the employer
could be effective until the expiration of the agreement. John
Deklewa & Sons, Inc., 282 NLRB 1375, 1389 (1987).
Having established the existence of the June 17, 1987
agreement, I next turn to the specific allegations of the com-
plaint.
Ricky L. Root, business representative for Local 312,
Kalamazoo, Michigan, testified that he and Clark’s successor
as business representative for Local 759, Tony Zugel, had a
meeting on August 15, 1988, with Jim Beech, Helen Rover,
and Don (or Bill) King, representing Beech & Rich. Root
had been out on a job at the Simpson Paper mill in
Plainwell, Michigan, a little north of Kalamazoo, and in the
jurisdiction of Local 312. He found that Respondent was on
the job, and his conversations with employees had alerted
him to the possibility of contract violations on that job by
the Respondent. Beech admitted that there were nonunion
workers on the job, but said that he understood that as long
as he didn’t have union workers on that project he wasn’t
in violation of any agreement.3
885BEECH & RICH, INC.
one explanation for the deal between Clark and Beech. Possibly Kellogg re-
quired union painters in its plant, and the only way Beech could do this was
to sign up with Local 759, the Battle Creek local. This is educated speculation,
based on experience, but still speculation, so no such finding in this can be
made.
4 As a result of these meetings, and a telephone conversation between Root
and Helen Rover, of Beech’s office, Root agreed not to ‘‘harass’’ workers at
Simpson, and not to picket, if Beech & Rich would forward checked-off dues
for union members who worked on the project. This did not affect the other
matters under discussion.
5 Apparently some sort of action was filed in the United States District
Court for the Eastern District of Michigan, but nothing definite on that matter
was forthcoming for the record in this case.
6 This date, and the amounts due and the identification of specific funds to
be paid will have to be determined at the compliance stage of these pro-
ceedings because there is no way of knowing the numbers of employees in-
volved, the amounts due on account of each employee, and the total amounts
due employees and the several funds involved.
Root asked Beech for the names of the people employed,
for either more or less than 8 days, on the Simpson job, in
compliance with the appreciable Local 759 contract.
A second meeting took place between the same people on
August 24. Root gave Beech some names of people he had
talked to on the jobsite, but Beech refused to acknowledge
that they worked for Respondent, nor would Beech say that
he was aware that these employees were to be included
under the labor contract.4
After these meetings there were a couple of letters from
Zugel to Respondent requesting information on workers em-
ployed by Respondent, a letter from a lawyer representing
Local 312 and its fringe benefit plans requesting compliance
with the contract, and threatening action under the Federal
ERISA statute.5
After these letters were sent, an auditor named Robert R.
McGowan was hired by the lawyer for Local 312 to look
into Respondent’s records of employees who worked on the
Simpson job. McGowan made arrangements to visit Re-
spondent’s offices on January 20, 1989. When he asked for
the records of all the Simpson job workers, Beech told him
to call Respondent’s counsel, George J. Brannick. After this
conversation, McGowan was allowed to see only records of
five alleged ‘‘Union employees’’ on the Simpson job.
A second accountant, Marie Dowd, was engaged by the
Painters National Pension Fund to audit the books of Beech
& Rich. She also was referred to Brannick. After some delay
she made arrangements through Brannick, but the scheduled
day of her visit to the Company was the same day as she
testified at this hearing. So what her experiences were from
that point forward we do not know. It is obvious that the in-
formation requested of Respondent, and sought by Zugel and
Root, and by these auditors, is necessary for the proper ad-
ministration by the Unions, and the appropriate funds, of the
collective-bargaining agreement between Respondent and
Local 759.
There are no issues of fact regarding the meetings between
Root and Zugel and Respondent, nor about the letters written
by Zugel and Local 312’s lawyer, nor about the experiences
of the two accountants.
I, therefore, find that the Respondent has failed and re-
fused to abide by the terms of what I have found to be a
lawful collective-bargaining agreement.
The Respondent has failed and refused to make various
fringe benefit contributions since August 1988,6 to unit em-
ployees employed on the Simpson Paper Company Plainwell
job.
The Respondent further, has failed to make contractually
obligated contributions to pension, insurance, vacations, and
holidays on account of unit employees.
The Respondent has failed and refused to supply requested
information to the Unions, and to the various funds necessary
for the administration of the collective-bargaining agreement
between Respondent and Local 759.
Each of these failures and refusals I find to violate Section
8(a)(1) and (5) of the Act. NDK Corp., supra.
IV. THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall order it to cease and desist there-
from, and to take the following affirmative action designed
to effectuate the policies of the Act.
I shall order that the Respondent permit full and complete
examination of its books and records by auditors duly ap-
pointed by pension or health and welfare funds authorized to
receive payments under the collective-bargaining agreement
between the Union and Respondent effective June 2, 1987.
On determination by such auditors that certain moneys are
due, and on approval of such by Region 7 of the Board, I
order that those moneys be paid to the respective funds.
CONCLUSIONS OF LAW
1. The Respondent, Beech & Rich, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 759 and Local 312 are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (5) of
the Act by refusing to pay contractually obligated contribu-
tions due under its contract with the Union, and has refused
to give information necessary for the Unions to administer
that contract.
[Recommended Order omitted from publication.]