Cary Insulation of New Jersey

National Labor Relations Board - Board Decisions

Jan 31, 2006

346 N.L.R.B. 400 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 40
400
Masco Contractor Services East, Inc., a/k/a Cary
Corporation d/b/a Cary Insulation of New Jer-
sey and New Jersey Regional Council of Carpen-
ters of the United Brotherhood of Carpenters
and Joiners of America. Cases 4–CA–32261 and
4–CA–32526
January 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On April 16, 2004, Administrative Law Judge William
G. Kocol issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed cross-
exceptions and a supporting brief. All parties filed an-
swering briefs, and the Charging Party and the Respon-
dent filed reply briefs.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the complaint is time-
barred under Sec. 10(b) of the Act, we rely on the admissions in Union
Representative Ronald Kraus’ credited testimony that he knew no later
than December 2002, both that the parties had entered into the February
2000 short-form agreement and that the Respondent was not complying
with the terms of this collective-bargaining agreement “in any manner.”
Further, we rely on the credited testimony showing that Kraus and other
union officials knew even before December 2002 that the Respondent
was holding itself out as a nonunion company, and that, in dealings
with the Respondent, the Union treated it as such. This evidence estab-
lishes that the Union had clear and unequivocal notice, outside the 6-
month limitations period, that the Respondent had totally repudiated the
short-form agreement and not merely breached the contract’s provi-
sions, as the General Counsel and the Union contend. A & L Under-
ground, 302 NLRB 467, 469 (1991).
In light of our disposition of this case, we need not pass on the Re-
spondent’s cross-exceptions.
Andrew S. Brenner, Esq., for the General Counsel.
James W. Wimberly Jr. and James L. Hughes, Esqs. (Wimberly,
Lawson, Steckel, Nelson & Schneider, PC), of Atlanta,
Georgia, for the Respondent.
Howard Simonoff, Esq. (Jennings Sigmond), of Cherry Hill,
New Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 20−23,
2004. The charges and amended charge were filed by the New
Jersey Regional Council of Carpenters of the United Brother-
hood of Carpenters and Joiners of America (the Union) on July
1, September 29, and October 24, 2003.1 The order consolidat-
ing cases, consolidated complaint, and notice of hearing (the
complaint) issued on December 3. The complaint alleges that
Masco Contractors Services East, Inc., a/k/a Cary Corporation
d/b/a Cary Insulation of New Jersey (Respondent)2 signed a
short-form agreement on February 29, 2000, that bound it to
other agreements and that since about February 2003; Respon-
dent ceased abiding by the agreements. The complaint also
alleges that Respondent failed to supply the Union with certain
information. Respondent filed a timely answer that denied the
substantive allegations of the complaint and raised a number of
affirmative defenses, the most significant of which is that Sec-
tion 10(b) of the Act bars the complaint allegations. In my
view the critical issue in this case is whether the Union knew
more than 6 months before it filed the first charge that Respon-
dent was not adhering to the contract.
After the hearing closed in this case the General Counsel
filed a motion to correct transcript. In that motion the General
Counsel states that a stipulation “was mistakenly not tran-
scribed as part of the record in this case.” The motion is un-
clear whether this mistake was made by the court reporter or
whether the General Counsel mistakenly forgot to offer the
stipulation. Respondent filed an opposition. Among other
things, Respondent contends that it did not agree to the stipula-
tion or that any such stipulation was made on or off the record.
Because the General Counsel has failed to show that the alleged
stipulation was omitted from the record as a result of a tran-
scription error, I deny the motion.3
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent, a corporation, was en-
gaged in the installation of insulation and had a branch office in
Jackson, New Jersey. During the past calendar year Respon-

1 All dates are in 2003, unless otherwise indicated.
2 Respondent’s correct legal name is Masco Contractor Services
East, Inc. d/b/a Cary Insulation of New Jersey.
3 The General Counsel also filed a second motion to correct tran-
script. That unopposed motion is granted.
MASCO CONTRACTOR SERVICES EAST, INC. 401
dent performed services valued in excess of $50,000 outside the
State of New Jersey. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. I also conclude that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Masco Contractor Services East, Inc. (Masco East) owns and
operates about eight branches in New Jersey including Respon-
dent. It also has about 120 branches outside New Jersey. Re-
spondent’s facility is located in Jackson, New Jersey. The
other branches are not respondents in this proceeding. Masco
East is a division of Masco Contractor Services. Masco Corpo-
ration in turn owns Masco Contractor Services. Masco East
was formerly known as Cary Corporation; its name was
changed in late 2001.
As indicated, Respondent installs insulation. It performs
primarily residential work. Bruce Anez is director of human
resources for Masco East. Richard Doyle is Respondent’s
branch manager at the facility located in Jackson, New Jersey.
Normally Doyle only signs service contracts and cannot obli-
gate Respondent to contracts requiring Respondent to spend
over $1000. As branch manager, Doyle has the authority to
hire, fire, and discipline employees at the branch; he also grants
overtime. He assigns employees to jobs and transfers employ-
ees from one job to another. Indeed, at the hearing Respondent
admitted that Doyle was a supervisor within the meaning of
Section 2(11) and an agent within the meaning of Section
2(13). At times material to this case Respondent employed
about 45 persons there about 40 of whom installed insulation.
On February 29, 2000, Doyle also signed a short-form
agreement (SFA) with the Union. He credibly testified, how-
ever, that he did not recall the circumstances under which he
signed the agreement. No copy of the agreement was found at
the facility. The Union and the General Counsel did not iden-
tify or call as a witness the union representative who might
have presented Doyle with the SFA. Nor did they otherwise
explain the circumstances surrounding the signing of that
agreement. Respondent did not receive any additional informa-
tion from the Union concerning the SFA that Doyle signed,
such as copies of the actual collective-bargaining agreements,
an explanation of wage and benefit rates, or forms to be used in
making contributions to benefit funds.4 At no time since Doyle
signed the agreement has Respondent applied it in any manner.
Over the years, even before Doyle signed the SFA, Respon-
dent and the Union had a practice whereby the Union allowed
Respondent to work on certain union jobs.5 When working on
the union jobs Respondent made payments to the Union’s wel-
fare funds for the employees who worked there. Several of
Respondent’s employees were union members and Respondent
assigned those employees to the union projects. On those occa-
sions Respondent also paid the employees working there the
union wage rates. Otherwise, Respondent did not pay its em-

4 I do not credit the uncertain and ambiguous testimony to the con-
trary.
5 This conclusion is based on the credible testimony of McNeil and
Anez.
ployees those rates or benefits. When working on these union
jobs the Union generally would also supply one union member
from its hiring hall for each employee that Respondent used on
the project. Respondent also paid these employees the contrac-
tual pay rates and benefits. In 2000, records indicate that Re-
spondent reported that in 5 weeks during the year from one to
up to five employees worked on union jobsites. In 2001, Re-
spondent made payments in about 18 weeks covering from one
to three employees during those weeks. The General Counsel
contends that since Doyle signed the SFA Respondent made
contributions to the funds for 28 different union members at 20
different projects. But to put this in perspective, Respondent’s
sales range between $6 and $7 million. The union jobs de-
scribed above amounted to only about 1–2 percent of Respon-
dent’s business.
At all times material the Union understood that Respondent
was nonunion and was not adhering to any collective-
bargaining agreement. Roland Kraus is the Union’s organizer
and council representative. Kraus admitted that throughout
2002, he knew that Respondent was not complying with any
collective-bargaining agreement. He also admitted seeing on
December 18, 2002, a copy of the agreement signed by Doyle
and knowing at that time that Respondent had not been adher-
ing to that agreement. Other evidence supports these admis-
sions. For example, in the spring of 2001, the Union met with
Patrick McNeil, a sales representative for Respondent. Union
officials attempted to persuade McNeil that Respondent should
sign a collective-bargaining agreement and become a union
business. McNeil declined to do so.6 During mid-2001 and
late 2003, Alfred Shaffer, then owner of Shaffer Services, Inc.,
had conversations with Kraus during which Kraus indicated
that Respondent and other components of Masco East were
nonunion. In addition, during a conversation in about February
2002, Kraus indicated that the Union was doing the best it
could to persuade Respondent to sign a collective-bargaining
agreement. Shaffer sometimes complained to Kraus when Re-
spondent performed work on a union jobsite. He pointed out
that Respondent was nonunion while his business was union
and that he should be performing that work. Kraus acknowl-
edged that Respondent was nonunion. On those occasions
Respondent was then removed from the jobsite.7 Frank
Spencer, the Union’s executive director, explained that the
Union has about 9000–10,000 agreements in the area and that
therefore it is difficult to police those agreements.
In March the Union filed a grievance. On March 21, the par-
ties met to discuss the matter. However, at the start of the
meeting Respondent provided the Union with a letter in which
Respondent claimed it was unaware of any contract and denied
it had any contractual obligations with the Union. Respondent
indicated in the letter that it would be meeting with the Union
to discuss the basis of the Union’s claim that such a contractual
obligation existed. At the meeting the Union presented Re-
spondent with certain documents to support its assertions, in-
cluding a copy of the SFA signed by Doyle. On March 26, the
Union sent Respondent additional documents showing that

6 These facts are based on McNeil’s credible testimony.
7 These facts are based on Shaffer’s credible testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD402
Respondent had made payments on behalf of its employees to
the Union’s benefit funds. In addition the Union requested
information from Respondent. The failure to provide that in-
formation is a matter covered by the allegations in the com-
plaint. Respondent replied by letter dated April 18. It reiter-
ated that it had met with the Union in a spirit of cooperation in
order to hear the Union’s concerns. The parties met again on
May 14 where they agreed to hold the grievances in abeyance.
On July 2, the Union requested that Respondent supply it with
additional information.
The Act requires that charges must be filed within 6 months
after a party has clear and unequivocal notice that the Act has
been violated. See, e.g., Leach Corp., 312 NLRB 990, 991
(1993), enfd. 54 F.3d 802 (D.C. Cir. 1995). In this situation it
is Respondent who bears the burden of proving the 10(b) de-
fense. Id. As indicated above the initial charge in this case was
filed July 1 and served July 2. So the operative date for 10(b)
purposes is January 2. I have concluded that Doyle signed the
SFA in February 2000. I have also concluded above that at all
times since then Respondent has failed to apply any of the
terms of that agreement and the Union was aware that Respon-
dent was nonunion and was not adhering to any collective-
bargaining agreement.
In his brief the General Counsel argues, “the Regional Coun-
cil had no reason to know that Respondent was flouting its
contractual obligations. . . . Moreover, the Regional Council
had reason to believe that Respondent was complying with the
agreement but only had sporadic and occasional work in the
Regional Council’s jurisdiction.” I conclude that the record
does not support such an inference. As described above, the
credible evidence establishes that the practice whereby Re-
spondent performed “sporadic and occasional” union work was
in place well before Doyle signed the SFA and that practice
was unrelated to Doyle’s signing the SFA. Rather, I have con-
cluded above as a matter of fact that the Union treated Respon-
dent as a nonunion business that was not abiding by any collec-
tive-bargaining agreement. The General Counsel relies on
Neosho Construction Co., 305 NLRB 100 (1991). In that case
the employer signed a short-form agreement in 1975. In 1990,
a business representative observed the employer’s employees
on a jobsite and discovered the 1975 agreement. The judge in
that case concluded the union was not aware of the fact that the
employer had not been complying with the agreement and
found a violation of the Act, and the Board affirmed. I find that
that case is distinguishable. It is true that the mere fact that an
employer had failed to apply the terms of a contract for many
years may be insufficient, standing alone, to conclude that a
charge filed after those years is untimely under Section 10(b).
In this case, however, I am not relying on the passage of time
alone. Rather I have concluded that the Union knew during all
those years that Respondent was not complying with any con-
tract.
In its brief the Union argues:
What is critical is to identify the specific unfair labor practice
at issue. The Union’s claim is not that the Employer failed to
abide by the terms of a collective bargaining agreement, but
that Respondent repudiated an existing 8(f) agreement. Thus,
the evidence is unequivocal that it was not until the second
step grievance meeting on March 21, 2003, that the Union
was informed . . . that the Respondent was no longer bound
by its contract with the Union.
In support of this argument the Union cites A & L Under-
ground, 302 NLRB 467 (1991). In that case the Board dis-
missed a complaint after it concluded that the union had notice
that the employer had repudiated a contract more than 6 months
before the union filed a charge. Remember that I have con-
cluded above that Respondent’s occasional work on union pro-
jects was not pursuant to any collective-bargaining agreement
but was done pursuant to an arrangement with the Union that
preceded the contract at issue in this case. As a consequence,
under A & L Underground the Union failed to timely file its
charge.
In its brief the Union attempts to address Kraus’s testimony
by characterizing it as “his personal and subjective views re-
garding Respondent’s non-union proclivities.” But the facts
remain that Respondent never implemented the terms of the
SFA that Doyle signed and Kraus knew that throughout this
period Respondent was operating as a nonunion employer. The
Union attempts to explain this fact away because “It is undis-
puted that until December 18, 2002, Kraus was not even aware
that the Respondent was under contract with the Union. . . .”
However, the Union’s failure to communicate this fact to Kraus
does not excuse it from following the requirements of Section
10(b). In support of this argument the Union cites Cowboy
Scaffolding, Inc., 326 NLRB 1050 (1998). In that case the
Board dealt with statements by supervisors of a respondent that
incorrectly indicated that there was no contract with the union
involved there. Here, however, Kraus made statement correctly
indicating that he knew that Respondent was not adhering to
any union contract.
Finally, citing CAB Associates, 340 NLRB 536 (2003), the
Union argues that it was Respondent’s ambiguous conduct of
occasionally working on union jobs that caused the Union to
delay filing a charge in this matter. I reject that argument be-
cause the Union knowingly participated in the practice of al-
lowing Respondent to work on union jobs so long as Respon-
dent paid the contractual wage rates and benefits for those jobs
while at the same time knowing that Respondent did not adhere
to any contract in the vast majority of its other work.
Under these circumstances I conclude that Section 10(b) of
the Act in this case bars the complaint allegations concerning
Respondent’s alleged obligations to recognize the Union. It
follows that Respondent had no obligation to provide the Union
with information.
CONCLUSION OF LAW
The Union did not file its charge within the period specified
in Section 10(b) of the Act and Respondent did not violate the
Act as alleged in the complaint.
MASCO CONTRACTOR SERVICES EAST, INC. 403
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The complaint is dismissed.

Board and all objections to them shall be deemed waived for all pur-
poses.