Decorative Floors

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 188 (N.L.R.B. 1994)

188
315 NLRB No. 25
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise noted.
Decorative Floors, Inc. and Northwest Ohio District
Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO.
Case 8–CA–25895
September 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
Upon a charge filed by the Union October 28, 1993,
as amended December 14, 1993, the Acting General
Counsel issued a complaint December 16, 1993, an
amended complaint April 15, 1994, and an amendment
to the amended complaint May 6, 1994, against Deco-
rative Floors, Inc., the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the National Labor
Relations Act.
The complaint alleges, inter alia, that from about
June 30 through August 16, 1993, the Respondent
failed to remit all fringe benefit contributions that were
due under the parties’ collective-bargaining agreement
which expired June 30, 1993. On December 27, 1993,
April 28 and May 6, 1994, the Respondent filed an an-
swer, an answer to the amended complaint, and an
amendment to the latter answer, respectively, admitting
in part and denying in part the allegations in the com-
plaint.
Thereafter, on March 9, 1994, the Union filed a Mo-
tion for Summary Judgment and a supporting memo-
randum, with exhibits attached. On April 18, 1994, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The General Counsel filed a
motion joining the Charging Party’s motion with a
supporting memorandum May 9, 1994. Also, on May
9, the Respondent filed an opposition to the Motion for
Summary Judgment. The National Labor Relations
Board has delegated its authority in this proceeding to
a three-member panel.
Ruling on Motion for Summary Judgment
The parties’ submissions disclose that, since about
1986, the Respondent has been signatory on an indi-
vidual basis to a series of collective-bargaining agree-
ments between various floor covering contractors in
northwestern Ohio and the Northwest Ohio District
Council of Carpenters. The collective-bargaining agree-
ment that was effective from July 1, 1989, through
June 30, 1993 provided in pertinent part at article I
that:
The Employer acknowledges that the Union has
offered to establish its majority status by allowing
the Employer to examine authorization cards vol-
untarily executed by the Employer’s eligible em-
ployees in an appropriate unit; the Employer is
satisfied that the Union represents a majority of
its eligible employees in an appropriate unit and
has waived the opportunity to examine the author-
ization cards; and, therefore, the Employer recog-
nizes, pursuant to Section 9(A) [sic] of the Labor
Management Relations Act of 1947, as amended,
the Union as the sole and exclusive bargaining
representative of all full-time and regular part-
time journeymen, apprentices, trainees, foreman,
and general foremen performing floor laying
work, but excluding all office employees, profes-
sional employees, managerial employees, guards
and supervisors as defined in the Labor-Manage-
ment Relations Act of 1947, as amended.
Article II of the parties’ contract required the Respond-
ent to remit fringe benefit contributions to the Ohio
Carpenters Health and Welfare Plan, the Ohio Car-
penters Pension Plan and Trust, the Carpenters Joint
Apprenticeship Funds, the Northwest Ohio District
Council of Carpenters Supplemental Pension Plan, and
the Northwest District Council of Carpenters Vacation
Plan and Trust.
The parties attempted to negotiate a successor agree-
ment during the summer of 1993.1 When the parties
failed to reach an agreement by August 16, the unit
employees went on strike. Thereafter, on September
13, the Respondent and the Union executed a memo-
randum agreement agreeing to be bound by the terms
of a new contract which is effective from that date
until June 30, 1997. The Union learned the next month
that the Respondent had failed to remit fringe benefit
contributions due under the expired contract for the pe-
riod from June 30 through August 16, 1993. The
Union then filed the instant unfair labor practice
charge.
In its motion, the Union stresses that in Schmidt-
Tiago Construction Co., 286 NLRB 342 (1987), the
Board found that the employer had violated Section
8(a)(5) and Section 8(d) of the Act by unilaterally dis-
continuing fringe benefit contributions required under
an expired collective-bargaining agreement. The Union
claims that in this case there was no bargaining im-
passe or union agreement to the discontinuance of
fringe benefit contributions that would justify the Re-
spondent’s failure to make such payments.
While noting the Respondent’s argument that the ex-
pired contract was an 8(f) agreement and that, there-
fore, the obligation to make the payments ceased on its
expiration, the Union contends, citing Golden West
Electric, 307 NLRB 1494 (1992), that article I of the
agreement establishes the parties’ clear intent to create
a 9(a) relationship. The Union also notes that in
Casale Industries, 311 NLRB 951 (1993), the Board
held that where, as here, a construction-industry em-
ployer recognizes a labor organization under Section
189DECORATIVE FLOORS, INC.
2 Member Cohen notes that, in any event, the Board’s decision in
Casale Industries, supra, precludes the Respondent from challenging
the Union’s 9(a) status here inasmuch as more than 6 months
elapsed between the time of recognition and the time of the Re-
spondent’s unilateral conduct. Member Devaney did not participate
in Casale Industries and does not rely on the 6-month time limit on
construction industry employers’ challenges to 9(a) status for the
reasons set forth in Triple A Fire Protection, 312 NLRB 1088 fn.
3 (1993).
9(a) and no challenge to that status occurs within the
10(b) limitations period, the Board will not entertain a
subsequent claim that majority status was lacking at
the time of recognition. Thus, the Union argues that,
by virtue of its status as a 9(a) bargaining representa-
tive, the Respondent was obligated to continue fringe
benefit payments after the contract expired. The Re-
spondent’s failure to make them, in the Union’s view,
clearly violated Section 8(a)(5) and Section 8(d) of the
Act.
In joining the Union’s motion, the General Counsel
also argues that Golden West Electric, supra, supports
a finding that the parties had a 9(a) bargaining rela-
tionship which obligated the Respondent to continue
fringe benefit payments. Accordingly, the General
Counsel urges the Board to grant the Union’s motion
and find that the Respondent’s conduct was unlawful.
The Respondent has admitted that it discontinued
the fringe benefit payments as alleged in the com-
plaint. It argues, however, that the present case is dis-
tinguishable from Golden West Electric where the
union made a specific demand for 9(a) recognition by
presenting the employer with a voluntary recognition
agreement during the term of an existing collective-
bargaining agreement and the employer there admitted
having read the document and agreeing that the union
possessed majority status. In this case, according to the
Respondent, there are none of the extrinsic cir-
cumstances on which the Board relied in Golden West
Electric. The Respondent stresses, while relying on the
affidavit of its president, Dan Grant, that the Union
never made a demand for recognition and did not pro-
vide it with any authorization cards. Thus, the Re-
spondent contends that the Union failed to meet its
burden of showing that the parties had a 9(a) relation-
ship. Based on its view that the contract which expired
on June 30, 1993, was an 8(f) agreement, the Respond-
ent asserts, citing, inter alia, Brannan Sand & Gravel
Co., 289 NLRB 977 (1987), that it lawfully discon-
tinued fringe benefit payments on expiration. Accord-
ingly, the Respondent contends that the Board should
deny the Union’s Motion for Summary Judgment.
The Board held in John Deklewa & Sons, 282
NLRB 1375, 1385 fn. 41 (1987), that the party assert-
ing a 9(a) relationship in the construction industry has
the burden of proving the existence of this relationship.
Here, article I of the parties’ collective-bargaining
agreement which expired on June 30, 1993, as quoted
above, unequivocally and unambiguously states that
‘‘the Union represents a majority of [the Respondent’s]
eligible employees in an appropriate unit and . . . pur-
suant to Section 9(A) [sic] . . . the Union [is] the sole
and exclusive bargaining representative.’’ Although, as
the Respondent has noted, the Board relied on extrinsic
evidence, as well as the language of the collective-bar-
gaining agreement, in finding that the union held 9(a)
status in Golden West Electric, we conclude that in the
present case the contractual language, standing alone,
is sufficient to establish that such a relationship existed
here. We note that the Respondent has not disputed
that it voluntarily entered into that collective-bargain-
ing agreement. Thus, we find that the Respondent, by
executing an agreement with this provision, has un-
equivocally conferred 9(a) status on the Union as the
exclusive bargaining representative of the unit employ-
ees.2
Because a 9(a) relationship existed between the par-
ties, the Respondent was obligated to continue making
fringe benefit fund payments after the contract expired
on June 30, 1993. The Board has held that an em-
ployer is obligated to continue fringe benefit contribu-
tions after the expiration of a contract barring the ex-
istence of an impasse or a valid waiver of such con-
tributions. See Schmidt-Tiago Construction Co., supra.
The Respondent has not argued either defense in this
case. Accordingly, we grant the Motions for Summary
Judgment filed by the General Counsel and the Charg-
ing Party. We therefore conclude that the Respondent
has acted contrary to Section 8(d) and has violated
Section 8(a)(5) and (1) by failing to remit fringe bene-
fit contributions to the Union from about June 30
through August 16, 1993.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, with an office
and place of business in Toledo, Ohio, is engaged in
the construction industry as a seller and installer of
floor coverings and other related materials. The Re-
spondent, in conducting its business operations, annu-
ally derives gross revenues in excess of $500,000 and
purchases and receives at its Toledo, Ohio facility
products, goods and materials valued in excess of
$50,000 directly from points located outside the State
of Ohio. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We leave to further proceedings the question of any additional
amounts the Respondent must pay into the benefit funds to satisfy
our make whole remedy here. See Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).
4 Interest shall be computed pursuant to New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act.
All full-time and regular part-time journeymen,
apprentices, trainees, foremen, and general fore-
men performing floor laying work, but excluding
all office employees, professional employees,
managerial employees, guards and supervisors as
defined in the Act.
Since about 1986 and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit employees and has been rec-
ognized as such by the Respondent. The recognition
has been embodied in successive collective-bargaining
agreements, the most recent of which is effective from
September 13, 1993, through June 30, 1997. At all
times since 1986, based on Section 9(a) of the Act,
and by the provisions set forth in its collective-bargain-
ing agreements with the Respondent, the Union has
been the exclusive collective-bargaining representative
of the unit employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
From about June 30 through August 16, 1993, the
Respondent failed to remit all fringe benefit contribu-
tions due under the contract which expired on June 30,
1993, including those contributions due to the Ohio
Carpenters Health and Welfare Plan, the Ohio Car-
penters Pension Plan and Trust, the Carpenters Joint
Apprenticeship Funds, the Northwest Ohio District
Council of Carpenters Supplemental Pension Plan, and
the Northwest District Council of Carpenters Vacation
Plan and Trust. The terms and conditions of the agree-
ment which the Respondent failed to continue in full
force and effect relate to wages, hours, and other terms
and conditions of employment in the bargaining unit
and are mandatory subjects for the purposes of collec-
tive bargaining. The Respondent engaged in this con-
duct without prior notice to the Union and without af-
fording it an opportunity to bargain about such actions.
Accordingly, we find that the Respondent, by the acts
and conduct set forth above which occurred between
June 30, and August 16, 1993, has acted contrary to
Section 8(d) and has violated Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By unilaterally ceasing contractually required fringe
benefits contributions from about June 30 through Au-
gust 16, 1993, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(d), Section 8(a)(5) and (1), and Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has acted con-
trary to Section 8(d) and has violated Section 8(a)(5)
and (1) of the Act, we shall order it to cease and desist
and to take certain affirmative action designed to effec-
tuate the policies of the Act. We shall also order that
the Respondent make whole the unit employees by
paying those contributions to the Ohio Carpenters
Health and Welfare Plan, the Ohio Carpenters Pension
Plan and Trust, the Carpenters Joint Apprenticeship
Funds, the Northwest Ohio District Council of Car-
penters Supplemental Plan, and the Northwest District
Council of Carpenters Vacation Plan and Trust which
have not been paid and which would have been paid
in the absence of the Respondent’s unlawful unilateral
discontinuance of such payments from about June 30
through August 16, 1993.3 The Respondent also shall
reimburse with interest its employees for any expenses
resulting from its failure to make contributions to the
various funds described above. Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981).4
ORDER
The National Labor Relations Board orders that the
Respondent, Decorative Floors, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist
(a) Unilaterally ceasing payments to the Ohio Car-
penters Health and Welfare Plan, the Ohio Carpenters
Pension Plan and Trust, the Carpenters Joint Appren-
ticeship Funds, the Northwest Ohio District Council of
Carpenters Supplemental Pension Plan, and the North-
west District Council of Carpenters Vacation Plan and
Trust.
(b) In any like or related manner interfering with,
restraining, 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) On request, bargain with Northwest Ohio District
Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO as the ex-
clusive representative of employees with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment in the following appropriate unit:
All full-time and regular part-time journeymen,
apprentices, trainees, foremen, and general fore-
men performing floor laying work, but excluding
all office employees, professional employees,
191DECORATIVE FLOORS, INC.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
managerial employees, guards and supervisors as
defined in the Act.
(b) Make whole the unit employees by paying con-
tributions to the Ohio Carpenters Health and Welfare
Plan, the Ohio Carpenters Pension Plan and Trust, the
Carpenters Joint Apprenticeship Funds, the Northwest
Ohio District Council of Carpenters Supplemental Pen-
sion Plan, and the Northwest District Council of Car-
penters Vacation Plan and Trust, which have not been
paid and which would have been paid in the absence
of the Respondent’s unlawful unilateral discontinuance
of such payments from about June 30 through August
16, 1993, as set forth in the remedy section of this de-
cision.
(c) Reimburse the unit employees for any expenses,
plus interest, they incurred as the result of the Re-
spondent’s failure to make the fringe benefit payments
described above.
(d) Post at its facility in Toledo, Ohio, copies of the
attached marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region
8, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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 cov-
ered 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.
MEMBER STEPHENS, concurring.
I join my colleagues in granting the Motions for
Summary Judgment filed by the General Counsel and
the Charging Party. Accordingly, I too find that the
Respondent violated Section 8(a)(5) and (1) as alleged
in the complaint by ceasing to make the specified fund
contributions without prior notice to the Union and an
opportunity to bargain. In so finding, I rely on the fact
that the Respondent’s challenge to the allegations of
majority status contained in the recognitional clause of
the 1989–1993 collective-bargaining agreement which
it had signed was untimely, i.e., the challenge was
made more than 6 months after execution of the agree-
ment. Casale Industries, 311 NLRB 951, 953 (1993).
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unilaterally cease payments to the
Ohio Carpenters Health and Welfare Plan, the Ohio
Carpenters Pension Plan and Trust, the Carpenters
Joint Apprenticeship Funds, the Northwest Ohio Dis-
trict Council of Carpenters Supplemental Pension Plan,
and the Northwest District Council of Carpenters Va-
cation Plan and Trust.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with Northwest Ohio
District Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, AFL–CIO as the
exclusive representative of employees with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment in the following unit:
All full-time and regular part-time journeymen,
apprentices, trainees, foremen, and general fore-
men performing floor laying work, but excluding
all office employees, professional employees,
managerial employees, guards and supervisors as
defined in the Act.
WE WILL make whole the unit employees by paying
contributions to the Ohio Carpenters Health and Wel-
fare Plan, the Ohio Carpenters Pension Plan Trust, the
Carpenters Joint Apprenticeship Funds, the Northwest
Ohio District Council of Carpenters Supplemental Pen-
sion Plan, and the Northwest Ohio District Council of
Carpenters Vacation Plan and Trust, which have not
been paid and which would have been paid in the ab-
sence of the Respondent’s unlawful unilateral dis-
continuance of such payments from about June 30
through August 16, 1993.
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL also reimburse with interest the unit em-
ployees for any expenses they incurred as the result of
our failure to make the fringe benefit contributions de-
scribed above.
DECORATIVE FLOORS, INC.