Buck Brown Contracting Co, Inc And Northern Materials Corp. Inc

National Labor Relations Board - Board Decisions

Oct 26, 1984

272 N.L.R.B. 951 (N.L.R.B. 1984)

BUCK BROWN CONTRACTING CO 951
Buck Brown Contracting Co, Inc and Northern
Materials Corporation, Inc and Construction,
Building Materials and Miscellaneous Drivers
Local Union No 83, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Laborers' District Council
of the State of Arizona and its Local Union
Nos 383 and 479, Laborers' International
Union of North America, AFL-CIO, Operative
Plasterers' and Cement Masons' International
Association of the United States and Canada,
Local Union 395, AFL-CIO Cases 28-CA-
7314 and 28-CA-7317
26 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon unfair labor practice charges filed 26 Janu
ary 1983 by the Unions 1 the General Counsel of
the National Labor Relations Board by the Re
gionalDirector for Region 28 issued on 10 March
1983 separate complaints against Respondents Buck
Brown Contracting Co Inc (Buck Brown) and
Northern Materials Corporation Inc (Northern
Materials) alleging that they have violated Section
8(a)(5) and (1) of the National Labor Relations
Act Copies of the charges and complaints were
duly served on the parties Thereafter the Re
spondents each filed a timely answer to the com
plaint against it denying the commission of any
unfair labor practices and asserting certain affirma
tive defenses On 2 June 1983 the General Counsel
by the Regional Director for Region 28 issued an
order consolidating the cases for hearing
On 18 July 1983 the parties jointly filed a stipula
non to transfer the instant proceeding to the Board
without benefit of a hearing before an administra
tive law judge and submitted a proposed record
consisting of the formal papers and the parties stip
ulation of facts with attached exhibits On 14 De
cember 1983 the Associate Executive Secretary by
direction of the Board issued an order approving
the stipulation and transferring the proceeding to
the Board Thereafter the General Counsel and the
Charging Party Unions filed briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Construction Building Materials and Miscellaneous Drivers Local
Union No 83 International Brotherhood of Teamsters Chauffeurs
Warehousemen and Helpers of America (Teamsters) Laborers District
Council of the State of Arizona and its Local Union Nos 383 and 479
Laborers International Union of North America AFL-CIO (Laborers)
and Operative Plasterers and Cement Masons International Association
of the United States and Canada Local Union 395 AFL CIO (Cement
Masons)
Upon the entire record in the case the Board
makes the following
FINDINGS OF FACT
I JURISDICTION
Buck Brown an Arizona corporation is engaged
in business as a general contractor in the building
and construction industry with its principal office
and place of business in Phoenix Arizona and var
ious construction projects throughout the State of
Arizona During the 12 months preceding the com
plaint in the course and conduct of its business op
erations Buck Brown purchased and received
products goods and materials valued in excess of
$50 000 from other enterprises located within the
State of Arizona each of which received such
products goods and materials in interstate corn
merce directly from points outside the State of An
zona
Northern Materials an Arizona corporation is
engaged in the production and sale of sand gravel
and ready mix products at its facility in Flagstaff
Arizona During the 12 months preceding the corn
plaint in the course and conduct of its business op
erations Northern Materials purchased and re
ceived products goods and materials valued in
excess of $50 000 from other enterprises located
within the State of Arizona each of which re
ceived such products goods and materials in inter
state commerce directly from points outside the
State of Arizona During the same period North
ern Materials also sold and shipped from its Anzo
na facility products goods and materials valued in
excess of $50 000 to other enterprises located
within the State of Arizona each of which sold
and shipped products goods and materials valued
in excess of $50 000 in interstate commerce directly
to firms located outside the State of Arizona
We find that Buck Brown and Northern Maten
als are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Unions are labor organizations within the
meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
A Fact
Until 31 May 1982 Buck Brown was a member
of a multiemployer bargaining group Associated
General Contractors Arizona Chapter (AGC) and
was bound to AGC s 1979-1982 collective bargain
ing agreement with the Teamsters Laborers and
Cement Masons which expired on 31 May 1982
Under that agreement Buck Brown was required
to make contributions on behalf of its unit employ
272 NLRB No 145
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees to various fringe benefit funds herein called the
ALTCM funds which were administered jointly
by the Employers and the Unions 2 Prior to 31
May 1982 Buck Brown timely withdrew from
AGC and thereafter bargained individually with
the Unions concerning the respective unit employ
ees represented by each labor organization Under
the 1979-1982 AGC agreement the Unions were
the designated representatives of Buck Brown s
truckdnver laborer and cement mason employees
in a multiemployer unit Since 1 June 1982 the
Unions have been the exclusive representatives of
Buck Brown s truckdnver laborer and cement
mason employees in single employer units consist
ing of Buck Brown s employees employed in those
classifications
On 21 September 1982 Buck Brown and the
Teamsters reached a collective bargaining agree
ment which inter aiia provided for fringe benefit
contributions to be made to the ALTCM funds by
Buck Brown on behalf of its truckdnver unit em
ployees On 23 September 1982 Buck Brown and
the Cement Masons reached a collective bargaining
agreement which also provided for inter aha
fringe benefit contributions to be made to the
ALTCM funds by Buck Brown on behalf of its
cement mason unit employees As of the date of
the stipulation no collective bargaining agreement
had been reached between Buck Brown and the
Laborers
Until 31 May 1982 Northern Materials was a
member of a different multiemployer bargaining
group Arizona Rock Products Association
(ARPA) and was bound to ARPA s 1979-1982
collective bargaining agreement with the Laborers
and Teamsters which expired on 31 May 1982
Under that agreement Northern Materials was re
quired to make contributions on behalf of its unit
employees to the ALTCM funds Prior to 31 May
1982 Northern Materials timely withdrew from
ARPA and thereafter bargained individually with
the Laborers and Teamsters concerning the respec
five unit employees represented by each labor or
ganization Under the 1979-1982 ARPA agreement
the Teamsters and Laborers were the designated
representatives of Northern Materials truckdnver
and laborer employees respectively in a multiem
ployer unit Since 1 June 1982 the Teamsters and
Laborers have been the exclusive representatives of
Northern Materials truckdnver and laborer em
ployees respectively in single employer units con
sisting of Northern Materials employees employed
in those classifications
2 The ALTCM funds included for each Union health and welfare
trust funds pension trust funds vacation and savings trust funds and ap
prenticeship training programs
On 1 October 1982 Northern Materials and the
Teamsters reached a collective bargaining agree
ment which inter aim provided for fringe benefit
contnbutions to be made to the ALTCM funds by
Northern Materials on behalf of its unit employees
As of the date of the stipulation no collective bar
gaining agreement had been reached between
Northern Materials and the Laborers
Employer contributions to the ALTCM funds
are due and payable on the 15th day of the month
following the month in which the unit employees
hours are worked Employer contributions to the
funds are past due after the 25th day of the
month following the month in which the hours are
worked For example contributions to the
ALTCM funds for unit employees hours worked
in June 1982 were due and payable on 15 July 1982
and became past due after 25 July 1982
Neither Buck Brown nor Northern Materials re
mitted contributions to the ALTCM funds on
behalf of its unit employees for the period 1 June
1982 or for any subsequent period as of the date of
the stipulation
B Contentions of the Parties
The stipulation indicates that the Respondents
assert Section 10(b) as a defense contending that
the Unions had notice that the Respondents had
ceased to make contributions to the ALTCM funds
outside the 10(b) period The Respondent also as
serts that the Unions charge is a misuse of the Act
because it seeks to enforce a contractual claim
The General Counsel contends in his brief that
an employer violates Section 8(a)(5) by unilaterally
changing or discontinuing existing terms and condi
tions of employment including fringe benefit con
tnbutions after the expiration of the underlying
collective bargaining agreement as well as during
the life of an existing collective bargaining agree
ment Regarding the Respondents Section 10(b) ar
gument the General Counsel points out that the
June 1982 fund contributions did not become delin
quent until 26 July 1982 and therefore the charges
which were filed and served on 26 January 1983
were timely The General Counsel further contends
that the Respondents failure to make the trust fund
contributions each month thereafter constitutes sep
arate and additional 8(a)(5) violations Finally the
General Counsel contends that the fact that an al
leged unfair labor practice may also be a breach of
contract does not displace the authority of the
Board to remedy the unfair labor practice
The Unions brief essentially makes the same ar
guments as the General Counsel s brief
BUCK BROWN CONTRACTING CO 953
C Discussion
It is well settled that an employer violates Sec
tion 8(a)(5) and (1) when it unilaterally changes or
discontinues existing terms and conditions of em
ployment—including contributions to contractual
fringe benefit funds—upon the expiration of a col
lective bargaining agreement unless (1) the union
has waived bargaining on the issue or (2) the par
ties have bargained to impasse and the unilateral
change is reasonably encompassed by the employ
er s preimpasse proposals 3 It also is well settled
that an employer acts in derogation of its bargain
ing obligation under Section 8(d) if it unilaterally
changes or otherwise repudiates terms or condi
tions of employment contained in a collective bar
gaining agreement during the life of that agree
ment 4
In the instant case it is undisputed that Buck
Brown ceased making contributions to the
ALTCM funds since June 1982 upon the expiration
of the AGC agreement and that Northern Maten
als ceased making contributions to the ALTCM
funds since June 1982 upon the expiration of the
ARPA agreement Further there is no evidence or
contention that the Unions waived their right to
bargain regarding payments into the funds or that
the parties had reached impasse on this issue during
negotiations for collective bargaining agreements to
succeed the AGC and ARPA agreements It also is
undisputed that Buck Brown has not made any
contributions to the ALTCM funds as provided in
its current collective bargaining agreements with
the Teamsters and Cement Masons and that
Northern Materials has not made any contributions
to the ALTCM funds as provided in its current
collective bargaining agreement with the Team
sters
Regarding the Respondents 10(b) defense that
the Unions had notice outside the 6 month period
preceding the filing of the charges that the Re
spondents had ceased making contributions to the
ALTCM funds we note that the charges were
filed 26 January 1983 and therefore any violations
which occurred prior to 26 July 1982 could not be
reached However it has been stipulated that em
ployer contributions to the funds for the month of
June 1982 were not past due until after 25 July
1982 Therefore and in the absence of any evi
dence regarding notice we find that it was not
until 26 July 1982 that the Unions had notice that
4 See e g American Distributing Co 264 NLRB 1413 (1982) enfd 715
F 2d 446 (9th Or 1983) Cauthorne Trucking 256 NLRB 721 (1981)
enfd 691 F 2d 1023 (DC Cir 1982) Hen House Market No 3 175
NLRB 596 (1969) enfd 428 F 2d 133 (8th Cir 1970)
Schuener Construction Co 258 NLRB 1275 (1981) Morelli Construe
non Co 240 NLRB 1190 (1979)
the Respondents had ceased making contributions
to the funds The charges therefore were timely
under Section 10(b) 5
Finally regarding the Respondents defense that
the Unions are misusing the Act by seeking merely
contractual relief the Board has stated
The fact that the unfair labor practice is also
a breach of contract for which the injured
party might have another remedy such as a
suit for damages under Section 301 of the Act
does not displace the authority of the Board to
deal with and remedy the unfair labor prac
tice 6
The Respondents defenses therefore are without
merit
Based on all of the foregoing we find that the
Respondents separately violated Section 8(a)(5) and
(1) by unilaterally ceasing to make contributions to
the ALTCM funds following the expiration of the
1979-1982 AGC and ARPA collective bargaining
agreements with the Unions We further find that
the Respondents separately violated Section 8(a)(5)
and (1) by failing and refusing to make contnbu
tions to the ALTCM funds as provided in their
current collective bargaining agreements with cer
tam of the Unions individually
CONCLUSIONS OF LAW
1 The Respondents Buck Brown Contracting
Co Inc and Northern Materials Corporation Inc
are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Construction Building Materials and Miscella
neous Drivers Local Union No 83 International
Brotherhood of Teamsters Chauffeurs Warehouse
men and Helpers of America Laborers District
Council of the State of Arizona and its Local
Union Nos 383 and 479 Laborers International
Union of North America AFL-CIO and Opera
tive Plasterers and Cement Masons International
Association of the United States and Canada Local
Union 395 AFL-CIO are labor organizations
within the meaning of Section 2(5) of the Act
3 By unilaterally ceasing to make contributions
to the Unions fringe benefit funds upon the expira
tion of the 1979-1982 AGC and ARPA agree
ments and by failing and refusing to make contri
butions to the Unions fringe benefit funds as re
5 Peerless Roofing Co 247 NLRB 500 504 (1980) enfd 641 F 2d 734
(9th Cir 1981) In view of this conclusion we find it unnecessary to pass
on the General Counsel s further contention that each succeeding failure
and refusal by the Respondents to make the ALTCM contributions con
stituted separate and distinct violations of Sec 8(0(5)
6 Rego Park Nursing Home 230 NLRB 725 727 (1977) quoting from
Nassau County Health Facilities 227 NLRB 1680 1684 (1977) See also
NLRB v C vf C Plywood Corp 385 US 421 (1967)
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired by the existing collective bargaining agree
ments with the Unions the Respondents have en
gaged in unfair labor practices within the meaning
of Section 8(a)(5) of the Act
4 By the above conduct the Respondents have
interfered with restrained or coerced employees in
the exercise of the rights guaranteed them by Sec
ton 7 of the Act and thereby have engaged in
unfair labor practices within the meaning of Sec
ton 8(a)(1) of the Act
5 The above described unfair labor practices are
unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY „A
Having found that the Respondents have en
gaged in certain unfair labor practices we shall
order the Respondents to cease and desist there
from and to take certain affirmative action de
signed to effectuate the policies of the Act
We have found that the Respondents since June
1982 violated Section 8(a)(5) and (1) of the Act by
ceasing to make contributions on behalf of "their
unit employees to the Unions fringe benefit funds
To remedy this violation we shall order the Re
spondents to make their unit employees whole by
paying all fringe benefit contributions as provided
in the applicable collective bargaining agreements
which have not been paid and which would have
been paid absent the Respondents unlawful discon
tinuance of such contributions 7 and by reimburs
ing unit employees for any expenses ensuing from
the Respondents failure to make such contnbu
tons
ORDER
The National Labor Relations Board orders that
A The Respondent Buck Brown Contracting
Co Inc Phoenix Arizona its officers agents
successors and assigns shall
1 Cease and desist from
(a) Refusing to bargain collectively with Con
struction Building Materials and Miscellaneous
Drivers Local Union No 83 International Brother
hood of Teamsters Chauffeurs Warehousemen and
7 Because the provisions of employee benefit fund agreements are van
able and complex the Board does not provide at the adiudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments We leave to the compliance stage the question
of whether the Respondents must pay any additional amounts into the
fringe benefit funds in order to satisfy our make whole remedy These
additional amounts may be determined depending on the circumstances
of each case by reference to the provisions in the documents governing
the funds at issue and where there are no governing provisions to evi
dence of any loss directly attributable to the unlawful withholding action
which might include the loss of return on investment of the portion of
funds withheld additional administrative costs etc but not collateral
losses See Merryweather Optical Co 240 NLRB 1213 (1979)
Helpers of America Laborers District Council of
the State of Arizona and its Local Union Nos 383
and 479 Laborers International Union of North
America AFL-CIO and Operative Plasterers and
Cement Masons International Association of the
United States and Canada Local Union 395 AFL-
CIO by unilaterally ceasing to make contributions
to the Unions fringe benefit funds as provided in
the collective bargaining agreement between the
Unions and Associated General Contractors Ariz°
na Chapter (AGC) which expired 31 May 1982
(b) Failing and refusing to make contributions to
the Unions fringe benefit funds as provided in its
current collective bargaining agreements with the
Teamsters and Cement Masons
(c) 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) Honor and abide by the terms and conditions
of employment provided for in its current collec
tive bargaining agreements with the Teamsters and
Cement Masons
(b) Make whole its unit employees by making all
fringe benefit contributions as provided in the ap
plicable collective bargaining agreements which
were not paid and which would have been paid
absent the Respondent s unilateral discontinuance
of such contributions and by reimbursing unit em
ployees for any expenses ensuing from the Re
spondent s failure to make such contributions
(c) Preserve and on request make available to
the Board or its agents for examination and copy
mg all payroll records social security payment
records timecards personnel records and reports
and all other records necessary to analyze the
amounts due under the terms of this Order
(d) Post at its Phoenix Arizona place of business
copies of the attached notice marked Appendix
A 8 Copies of the notice on forms provided by
the Regional Director for Region 28 after being
signed by the Respondent s authorized representa
tive shall be posted by the Respondent immediate
ly 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 notices are not altered defaced
or covered by any other material
8 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
BUCK BROWN CONTRACTING CO 955
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
B The Respondent, Northern Materials Corpo
ration Inc Flagstaff Arizona its officers agents
successors and assigns shall
1 Cease and desist from
(a) Refusing to bargain collectively with Con
struction Building Materials and Miscellaneous
Drivers Local Union No 83, International Brother
hood of Teamsters Chauffeurs Warehousemen and
Helpers of America and Laborers District Council
of the State of Arizona and its Local Union Nos
383 and 479, Laborers International Union of
North America AFL-CIO by unilaterally ceasing
to make contributions to the Unions fringe benefit
funds as provided in the collective bargaining
agreement between the Unions and Arizona Rock
Products Association (ARPA) which expired 31
May 1982
(b) Failing and refusing to make contributions to
the Unions fringe benefit funds as provided in its
current collective bargaining agreement with the
Teamsters
(c) 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) Honor and abide by the terms and conditions
of employment provided for in its current collec
tive bargaining agreement with the Teamsters
(b) Make whole its unit employees by making all
fringe benefit contributions as provided in the ap
plicable collective bargaining agreements which
were not paid and which would have been paid
absent the Respondent s unilateral discontinuance
of such contributions and by reimbursing unit em
ployees for any expenses ensuing from the Re
spondent s failure to make such contributions
(c) 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
amounts due under the terms of this Order
(d) Post at its Flagstaff Arizona place of busi
ness copies of the attached notice marked Appen
dix B 9 Copies of the notice on forms provided
by the Regional Director for Region 28 after
being signed by the Respondent s authorized repre
sentative shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consec
9 See fn 8 above
utive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Re
spondent to ensure that the notices are not altered
defaced or covered by any other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Construc
tion Building Materials and Miscellaneous Drivers
Local Union No 83 International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers
of America Laborers District Council of the State
of Arizona and its Local Union Nos 383 and 479
Laborers International Union of North America
AFL-CIO and Operative Plasterers and Cement
Masons International Association of the United
States and Canada Local Union 395 AFL-CIO
by unilaterally ceasing to make contributions to the
Unions fringe benefit funds as provided in the col
lective bargaining agreement between the Unions
and Associated General Contractors Arizona
Chapter which expired 31 May 1982 and by failing
and refusing to make such contributions required
by our current collective bargaining agreements
with the Teamsters and Cement Masons
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 honor and abide by the terms and con
ditions of employment provided in our current col
lective bargaining agreements with the Teamsters
and Cement Masons
WE WILL make whole our employees by making
the fringe benefit contributions we should have
made under the applicable collective bargaining
agreements since June 1982 and by reimbursing
our employees for any expenses ensuing from our
failure to make such contributions
BUCK BROWN CONTRACTING CO
INC
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Construe
tion Building Materials and Miscellaneous Drivers
Local Union No 83 International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers
of America and Laborers District Council of the
State of Arizona and its Local Union Nos 383 and
479 Laborers International Union of North Amer
ica AFL-CIO by unilaterally ceasing to make
contributions to the Unions fringe benefit funds as
provided in the collective bargaining agreement be
tween the Unions and Arizona Rock Products As
sociation which expired 31 May 1982 and by fail
ing and refusing to make such contributions re
quired by our current collective bargaining agree
ment with the Teamsters
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 honor and abide by the terms and con
ditions of employment provided in our current col
lective bargaining agreements with the Teamsters
WE WILL make whole our employees by making
the fringe benefit contributions we should have
made under the applicable collective bargaining
agreements since June 1982 and by reimbursing
our employees for any expenses ensuing from our
failure to make such contributions
NORTHERN MATERIALS CORPORATION INC