Dutchess Overhead Doors

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 162 (N.L.R.B. 2001)

162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dutchess Overhead Doors, Inc. and Upstate New
York Regional Council of Carpenters, Interna­
tional Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 3–CA–21892
December 20, 2001
DECISION AND ORDER
CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On June 6, 2000, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
and the Charging Party filed exceptions and supporting
briefs and the General Counsel, the Respondent, and the
Charging Party filed answering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings,1 and conclusions2 and to adopt the recommended
Order as modified and set forth in full below.3
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge as
modified and orders that the Respondent, Dutchess
Overhead Doors, Inc., Poughkeepsie, New York, its offi­
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to comply with the terms of
the Master Agreement between Construction Contrac­
tors’ Association of Hudson Va lley, Inc. and the Upstate
Regional Council of Carpenters, International Brother-
hood of Carpenters and Joiners of America, AFL–CIO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance 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.
2 The Charging Party has excepted to the judge’s failure to recom­
mend that the remedy be extended prior to October 19, 1998, a date 6
months prior to the filing of the charge herein. However, the General
Counsel specifically alleged in the complaint that the Respondent en-
gaged in unlawful activity only “since on or about October 19, 1998,”
and specifically requested in the complaint that the Respondent be
required to make the employees whole for any losses incurred as a
result of the Respondent’s unlawful activity only “since October 19,
1998.” Under these circumstances, we decline to expand the remedy
beyond that requested in the complaint. We shall revise the affirmative
relief provision to reflect that date.
3 We shall modify the judge’s recommended Order in accordance
with our recent decisions in Indian Hills Care Center, 321 NLRB 144
(1996); Excel Container, 325 NLRB 17 (1977); and Ferguson Electric
Co., 335 NLRB 142 (2001).
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Comply with the terms of the Master Agreement
between CCA and the Upstate Council and reimburse all
employees and/or the Upstate Council for any loss that
they suffered from October 19, 1998, to the present time
due to the Respondent’s failure to comply with the terms
of this Agreement, as prescribed in Ogle Protection Ser­
vice, 183 NLRB 682 (1970), with interest computed as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(b) Within 14 days after service by the Region, post at
its office in Poughkeepsie, New York, copies of the at­
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al­
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since October 19,
1998.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region, at-
testing to the steps that it has taken to comply with this
Decision.
4 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 Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
337 NLRB No. 27
DUTCHESS OVERHEAD DOORS 163
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 vio­
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT fail and refuse to comply with the terms
of our contract with Upstate New York Regional Council
of Carpenters, International Brotherhood of Carpenters
and Joiners of America, AFL–CIO (the Union).
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 reimburse you and the Union for any loss that
you suffered since October 19, 1998, that was due to our
failure to comply with the terms of our contract with the
Union, with interest.
DUTCHESS OVERHEAD DOORS, INC.
Robert Ellison, Esq., for the General Counsel.

Donald Sapir, Esq., for the Respondent.

James LaVaute, Esq. (Blitman & King, L.L.P), for the Charging

Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on December 14 and 15, 1999, in Albany,
New York. The complaint, which issued on October 22, 1999,
and was based on an unfair labor practice charge that was filed
on April 19, 1999, by Upstate New York Regional Counsel of
Carpenters, International Brotherhood of Carpenters and Join­
ers of America, AFL–CIO (the Union and/or the Upstate Coun­
cil) alleges that Dutchess Overhead Doors, Inc. (the Respon­
dent) violated Section 8(a)(5) of the Act by failing and refusing
to apply the terms of the collective-bargaining agreements in
effect, including wages and fringe benefits, to all of its unit
employees.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it has been an em­
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
I find that the Hudson Valley District Council of Carpenters
(HVDC and/or the Union) has been a labor organization within
the meaning of Section 2(5) of the Act. In about 1998, HVDC
was disbanded and all the constituent parts of this organization,
with the exception of the Westchester and Rockland locals,
became part of the Upstate Council, which I also find has been
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
The Respondent is engaged in the installation and service of
residential and commercial garage doors. Commercial jobs
range in size from a small automotive shop with 2 doors to a
large warehouse with 50 garage doors. Another form of com­
mercial work performed by the Respondent is installing and
servicing roll up type doors that secure the front of stores. The
residential work is installing and maintaining garage doors at
private homes. Respondent also performs service work on both
residential and commercial work.
Charles Vealey was the president and executive secretary of
HVDC from about 1988 through 1998. Prior to that he was a
business representative and trustee of what was then Local No.
255 in Bloomingburgh, New York. HVDC was a party to a
“Master Agreement,”1 also called the Commercial Agreement,
with Construction Employers of Hudson Valley, Inc. effective
from June 1, 1987, to May 31, 1990. About a month after the
execution of this agreement, the association’s name was
changed to Construction Contractor’s Association (CCA). The
Respondent’s president and owner, Daniel Madsen, signed this
agreement on November 17, 1987. The next agreement be-
tween the HVDC and CCA was effective for the period of June
1, 1990, through May 31, 1994. Madsen signed this agreement
on July 12, 1991. The next agreement between HVDC and
CCA was effective from 1994 through 1998 and the agreement
between the Upstate Council and CCA was effective from June
1, 1999, through May 31, 2002; neither of these agreements
was signed by Madsen or anybody else representing the Re­
spondent.
At the same time that Vealey and Madsen signed the 1987
M aster Agreement, they also signed the Residential Agreement,
a collective-bargaining agreement covering the same period for
residential construction in the affected area; the Residential
Agreement that followed, which was executed by the Associa­
tion and the Union and was effective for the period June 1,
1990, through May 31, 1994, and subsequent Residential
Agreements were never signed by the Respondent. The 1987
agreements were 8(f) agreements. The 1990 Master Agreement
states:
The Union has claimed and demonstrated and the Employer is
satisfied and acknowledges that the Union represents a major­
ity of the Employers’ employees in an appropriate bargaining
unit for purposes of collective bargaining. Accordingly, the
1 The Recognition clause of the Commercial Agreement and the
Residential Agreement states inter alia:
The parties agree that the collective ba rgaining unit covered by this
agreement is a single multi-employer bargaining unit consisting of
employers represented by [CCA] that is bound to this agreement, in­
cluding any individual employers who are not members of [CCA] but
who sign the agreement or agree to be bound to it.
The [HVDC] recognizes [CCA] as authorized to act in collective bar-
gaining negotiations for all their members and for non-member em­
ployers who agree to this Agreement.
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union requests recognition under Section 9(a) of the NLRA,
and the Employer recognizes the Union as the exclusive bar-
gaining agent under Section 9(a) of the NLRA for all employ­
ees within the contractual bargaining unit.
The Master Agreement, defines highway work and piledriver
and dockbuilder work and sets forth the wages of the employ­
ees covered by the agreement, between $16 and $17 an hour for
carpenters in 1987. The Residential Agreement is entitled Col­
lective Bargaining Agreement for Residential Construction.
Article Vl of this Agreement states, inter alia:
This Residential Agreement shall be applicable only to the
site construction of all work done by the employer in one
family, two family, row housing and garden type homes or
apartments which are not more than four stories high and are
used as private dwellings.
Article Vl of the Residential Agreement also states, inter alia:
“any work which is not specifically set forth in Section number
1 above shall not be covered by and performed pursuant to the
standard collective bargaining agreement between the Con­
struction Employers of the Hudson Valley, Inc. and Hudson
Valley District Council of Carpenters.” The wage rate for car­
penters under this agreement for the same period is $9.50 an
hour.
Madsen testified that he received a telephone call from
Vealey in about October 1987. Vealey asked if he would be
interested in being a union contractor. “And we talked and we
[sic] stated that it could be possible that we could do the resi­
dential work in the counties that were part of the residential
agreement.” Madsen testified that the wages and benefits that
he paid to his employees exceeded the rates set forth in the
Residential Agreement, so he saw no problem with signing the
agreement and still remaining competitive. In addition:
There was a conversation about doing commercial work un­
ion, and I stated that I just could not do it because our compe­
tition was all non-union . . . . I told him that if this covered the
commercial work, that we just could not be bound to this be-
cause we would not be competitive. And I asked him if this
just covered union commercial work and he said no, it cov­
ered everything. And I was insistent, I said it just doesn’t
make sense for our company. And I was told that if I didn’t
sign this, we couldn’t do the residential and I ended up sign­
ing.
Vealey testified on rebuttal that he never told Madsen that he
did not have to comply with the Master Agreement on any
commercial work that he was performing:
I told him that the Master Agreement applied to all work com­
ing within the jurisdiction of the [HVDC] and that if he was
doing any work on any commercial jobs, that the commercial
benefits and rates would have to be applied. And if he was
doing work on residential jobs, that the residential rates and
benefits would be applied. And that those two agreements
would be honored.
As stated above, the next agreements between the Union and
the Association was effective for the period June 1, 1990,
through May 31, 1994. The Respondent signed the Master
Agreement for this period, but not the Residential Agreement.
Although Madsen’s name appears on the signature page, there
was a substantial amount of testimony of who signed the
agreement, and the circumstances surrounding the signing.
What is undisputed is that the Respondent executed this agree­
ment because of its difficulty in purchasing stamps from the
Union.
The fringe benefits of the employees covered by these con-
tracts are paid to them in the form of benefit stamps. The em­
ployers purchase stamps from the Union, the amount of which
is determined by contractual terms and the number of hours the
employees worked. These stamps are given to the employees
and are redeemed at the Union’s benefit office. It is undisputed
that during the period of November 1987 through 1994 the
Respondent had from two to four employees who were Union
members. During this period, the Respondent paid these em­
ployees under the terms of the Residential Agreement and pur­
chased special (residential) stamps for them, even when they
were performing commercial work.
Madsen testified that in 1991 Nancy Wunderlich, the Re­
spondent’s bookkeeper, told him that an employee in the Un­
ion’s benefit office told her that they could not sell the Respon­
dent stamps because he had not signed the 1990 to 1994 con-
tract. He called Vealey and asked him what was going on.
Vealey told him that they couldn’t sell him stamps because he
had not signed the latest contract. Vealey told Madsen that he
would mail the contract to him, that he should sign it, return it
to the Union, and then he could purchase stamps. Madsen testi­
fied: “At that point, I was leaving for vacation and I told Nancy
. . . go ahead and sign the contract. It should be the same as
what we have and get it back so we can get stamps.” He left
for vacation, Wunderlich signed the contract, returned one to
the Union and filed the other; he never saw it until after the
unfair labor practices were filed herein. Madsen was asked on
direct examination what “kind” of agreement it was that he was
speaking to Vealey about. He testified:
We had a discussion that we were, you know, sending
the same, you know, the same agreement that we had be-
fore and it had the new rates in it, you know, benefit rates.
And I was assuming, you know, that it was the same con-
tract that we had signed before.
Q. And which agreement was that?
A. The residential.
Shortly thereafter, he again testified. “I just assumed, when I
was talking to him, that we were getting a residential agree­
ment. There was no conversation of a master agreement, or a
commercial agreement.” I then asked him again about his con­
versation with Vealey:
Q. Tell me what the discussion was.
A. The only conversation was—we had was that I
was, you know, expecting the same contract that I had be-
fore and which would have the same type of stamps that I
had before. I mean, there was no conversation that it was
going to change.
Q. What contract was that?
A. The Residential Agreement.
DUTCHESS OVERHEAD DOORS 165
When I asked Madsen for more specifics in his conversation
with Vealey, he testified:
I called to ask, you know, why we couldn’t buy the stamps
and why we hadn’t received the contract. And, I was not go­
ing to be in town, put it in the—put the new residential con-
tract in the mail to me, that’s what I was assuming I was get­
ting, and instructed my bookkeeper to sign the contract when
we received it.
I then asked him if his best recollection was that he asked
Vealey to send him the contract, or to send him the residential
contract. He answered: “My best recollection is to send me the
new residential contract.” Wunderlich has been employed by
the Respondent as a bookkeeper for 12 years; one aspect of her
job is to purchase and distribute the stamps. She determines the
amount of stamps to be purchased, completes the Union’s
stamp order form, makes out a check, and remits these items to
the Union’s benefit fund. When she receives the stamps from
the benefit fund, she distributes them to the union employees.
In 1991 the Union told her that they could not sell her stamps
because Madsen had not signed the new contract. She told
Madsen of this problem and shortly thereafter, he told her that a
contract would be coming in the mail, but as he was leaving for
vacation, she should sign his name to the contract, and return it
to the Union. Shortly thereafter, she received the contract,
signed Madsen’s name and mailed it back to the Union. After
that, she resumed purchasing stamps from the benefit fund.
During her employment with the Respondent, she never pur­
chased commercial stamps.
Vealey testified on rebuttal that in their conversation in
1991, Madsen complained that he was not able to purchase
stamps. Vealey told him that the reason was that he had not
signed the 1990 contract. During this conversation, Madsen
never said that he was expecting the residential agreement. “It
was just basically the commercial agreement, the master agree­
ment.” He testified:
A. I said that I would mail them out to his office. I
thought he was going to be signing them. I don’t recall
him saying that he was going to be on vacation . . . But he
could have said that. But he said that he would get them
signed and get them back to me.
Q. When you say them, are you talking about more
than one?
A. No. I’m talking about the master agreement. We
mailed out two agreements, one for the contractor and one
. . . to be returned to the Union.
Q. When you say two agreements, you mean two cop­
ies of the master agreement?
A. Yes.
Vealey mailed the 1990–1994 Master Agreement to the Re­
spondent and it was returned to the Union, signed, about 10
days later.
Madsen testified that from 1987 to the present time, about 25
percent of the Respondent’s business was commercial work, 50
to 55 percent was residential work, and the rest was service
work. It is undisputed that the Respondent never purchased
commercial stamps for its employees even when they per-
formed commercial work, and never paid its employees the
commercial rates specified in the Master Agreement even when
they performed commercial work.
Madsen testified to the commercial jobs that the Respondent
performed between 1990 and 1998 that he could recollect. The
Baxter Pharmaceutical job, lasting about 3 weeks, involved
about 60 doors and the Caldor’s job, which lasted about 2
weeks, had between 60 and 70 doors. In addition, during this
period the Respondent worked two projects for the Middletown
School District, a couple of projects for the Newburgh School
District and jobs for the Walden, Maybrook, Swan Lake,
(which involved six to eight doors), Kingston, and Middle
Hope Fire Departments; also, a Federal Express Facility and a
mail facility at Stewart Airport in Newburgh, New York. In
addition, it performed work for the Marlborough School sys­
tem, a couple of jobs for Frank Rome & Son in Kingston, New
York, a job for Middletown GMC, and a job for New York
Department of Transportation in Monroe, New York.
Anticipating the Respondent’s defense, the Union defends
that because of the large geographical area that it covers, and its
limited resources, it was difficult to police employer compli­
ance with its contracts. From about 1987 through 1997, the
geographic territory of the Union encompassed nine counties in
Central New York State west of the Hudson River. In addition,
HVDC has approximately 1000 members and 200 employers
under contract. During this period, the Union employed three
agents, one for each local. If a job being performed within the
Union’s jurisdiction is big enough, or if the general contractor
or project manager has a contract with the Union, the Union
will appoint a shop steward to cover the project. One responsi­
bility of the shop steward is to report on the employers’ com­
pliance with the contractual requirements.
There are six delegates from each of the constituent locals of
HVDC and they meet once a month where they discuss union
business. During these meetings, the business representatives
of the Local Unions report on what is occurring in each Local’s
area. At local union meetings, which usually take place
monthly, the business representatives notify the member of the
activities in the area, including jobs that are being performed
within the Local Union’s jurisdiction.
The Master Agreement provided for an exclusive hiring hall
provision which required the employers to obtain employees
through the constituent union offices. If the Unions are unable
to provide employees within 48 hours, the employer may em-
ploy employees directly. Vealey testified that at the Caldor job
being performed by the Respondent in about 1992, he received
a call from the Respondent saying that they needed one em­
ployee and he sent one employee to the job. The Respondent
was at that job for about 2 weeks.
Finally, the Respondent defends that it was not obligated to
conform to the requirements of these contracts within the 10(b)
period, because it had withdrawn from membership in the
CCA. As stated supra, the most recent Master Agreement be-
tween CCA and the Upstate Council is effective for the period
June 1, 1999, through May 31, 2002. Jeffrey Murray, the direc­
tor of organizing for the Upstate Council, testified that negotia­
tions for this agreement between he and Richard O’Bern, the
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative of CCA, commenced in September 1998. He
and O’Bern met on about 15 to 30 occasions between that time
and sometime prior to May 31, 1999, when agreement was
reached on all issues. He testified further that between Sep­
tember 1998 and February 1999 there were about 7 to 10 nego­
tiating sessions where he and O’Bern exchanged proposals. By
letter dated March 17, 1999, the Respondent wrote to the CCA,
with a copy to HVDC:
This letter is to advise you that in the event and to the extent
the Construction Contractors Association of the Hudson Val-
ley, Inc. (the “Association”) and/or the Hudson Valley Dis­
trict Council of Carpenters (the “District Council”) and/or the
Upstate New York Regional Council of Carpenters (the “Re­
gional Council”) consider Dutchess Overhead Doors, Inc.,
(“Dutchess”) to be a member of the Association and/or a
member of a single multi-employer bargaining unit whose
employees are represented by the District Council and/or the
Regional Council, Dutchess hereby denies such membership
and withdraws its purported membership both from the Asso­
ciation and the single multi-employer bargaining unit, effec­
tive immediately.
On March 31, 1999, the Respondent filed an RM petition
with the Board, which was subsequently dismissed. Charles
Vealey III, a Council Representative for the Upstate Council,
testified that in June 1999, after the new contract had been
agreed to, he sent a notice out to all active contractors, which
would include the Respondent, notifying them of the changes
contained in the new contract.
IV. ANALYSIS
The Respondent initially defends that it withdrew from the
Association and Association wide bargaining on March 17,
1999, and therefore was not bound to the terms of the Master
Agreement effective June 1, 1999. There is no question that the
Respondent was bound to the terms of the 1987 agreements and
all successive agreements absent timely notice otherwise. The
1987 and 1990 agreements both state that the employer recog­
nizes the Union as the collective-bargaining representative of
its employees and that the contract is an associationwide agree­
ment and that all members are bound to the agreement
“including any individual employers who are not members of
[CCA] but who sign the agreement and agree to be bound to it.”
The only way for the Respondent (or any employer in its situa­
tion or who were association members) to avoid this obligation
is to withdraw from this obligation or from the association in a
timely manner. I find that the Respondent has failed to do so
herein.
The Supreme Court in Charles D. Bonanno Linen Service v.
NLRB, 454 U.S. 404, 410–411 (1982), stated:
But in Retail Associates, Inc., 120 NLRB 388, the Board an­
nounced guidelines for withdrawal from multiemployer units.
These rules, which reflect an increasing emphasis on the sta­
bility of multiemployer units, permit any party to withdraw
prior to the date set for negotiation of a new contract or the
date on which negotiations actually begin, provided that ade­
quate notice is given. Once negotiations for a new contract
have commenced, however, withdrawal is permitted only if
there is “mutual consent” or “unusual circumstances” exist.
Id., at 395.
The Board’s approach in Retail Associates has been accepted
in the courts, as have its decisions that unusual circumstances
will be found where an employer is subject to extreme finan­
cial pressures or where a bargaining unit has become substan­
tially fragmented.
The parties began negotiations for a new contract in November
1998 and didn’t conclude until May 31, 1999. At the time of
the Respondent’s attempted withdrawal the parties had met on
from 7 to 10 occasions. Respondent’s attempted withdrawal
was therefore untimely. As there is no mutual consent or un­
usual circumstances herein, the Respondent’s attempted with­
drawal on March 17, 1999, was unsuccessful.
Respondent also defends that it was not bound by the terms
of the 1990 Master Agreement because when it signed this
contract in 1991, it believed that the contract that it would be
receiving was the Residential Agreement, not the Commercial
Agreement. The sole basis for this defense is Madsen’s testi­
mony about his conversation or conversations with Vealey in
about July 1991. Madsen’s testimony was not consistent about
this subject. Initially he testified that the contract that he ex­
pected to receive from Vealey was the same contract that he
had signed before. Then he testified that he assumed that he
would be receiving the Residential Agreement, and finally, he
testified that his best recollection was that he told Vealey to
send him the Residential Agreement. I do not credit this testi­
mony. Initially, I found Vealey to be a more credible witness
than Madsen. Additionally, I find it highly unlikely that Vealey
would agree to send him the Residential Agreement with a
wage rate of about half of the Commercial Agreement, espe­
cially considering their discussion in November 1987 when
Vealey insisted that Madsen had to sign the Master Agreement.
Although I have rejected this defense on credibility grounds,
more importantly I reject it because Madsen’s testimony is, as it
turns out, inadmissable as parol evidence. Sansla, Inc., 323
NLRB 107, 109 (1997), states: “The Board has consistently
refused to allow a party to use parol evidence of an alleged oral
agreement to vary the terms of a written agreement.” See 30
Am. Jur. 2d Sec. 1016 (1967). An exception to this rule was set
forth in RPM Products, 217 NLRB 855 (1975), where the
Board stated, in discussing an alleged contract: “sufficient am­
biguity exists as to the scope of the unit covered to justify resort
to parol evidence.” The terms of the Master Agreement leaves
no doubt that it applies to commercial jobs, while the
corresponding terms of the Residential Agreement clearly refer
to small residential jobs. Although the facts herein do not pre-
sent a “classic” parol evidence situation, I find that the lack of
ambiguity in the 1987 and 1990 contracts dictates against
accepting any evidence to vary the contract, or the terms of the
contract that Madsen was to receive.
The Respondent’s principal defense herein is that the com­
plaint should be dismissed pursuant to Section 10(b) of the Act
because the Union knew, or should have known that the Re­
spondent was not complying with the terms of the Master
Agreement more than 6 months prior to the filing of the unfair
labor practice charge. However, because the Respondent did
DUTCHESS OVERHEAD DOORS 167
not plead this defense in its answer, nor did it litigate it at the
hearing, this defense must be rejected. The law is clear that
Section 10(b) is an affirmative defense, and if it is not timely
raised, it is waived. McKesson Drug Co., 257 NLRB 468 fn. 1
(1981); DTR Industries, 311 NLRB 833 fn. 1 (1993).
In the alternative, and if the Respondent had properly plead
Section 10(b), I would still find that this was not a valid defense
herein. The burden of showing that the Charging Party knew,
or should have known that the Respondent was not complying
with the contract rests on the party raising the 10(b) affirmative
defense. Leach Corp., 312 NLRB 990, 991 (1993). In these
situations:
[The] Respondent would have to show, at the very least, ei­
ther that the Union knew, more than six months before filing
its charge, that Respondent was dishonoring the bargaining
agreements, or that in the exercise of reasonable diligence the
Union should have known this more than 6 months before fil­
ing the charge.
SAS Electrical Services, Inc., 323 NLRB 1239, 1253 (1997).
Stated another way, Section 10(b) does not start to run until the
aggrieved party has received actual or constructive notice of the
conduct constituting the alleged unfair labor practice. P & C
Lighting Center, 301 NLRB 828 (1991). I have found Vealey
to be an extremely credible witness and I credit his testimony
that the Union was unaware that the Respondent was not pay­
ing employees who performed commercial work at the com­
mercial rate, and was not purchasing commercial stamps for
these employees. I also find that the Respondent has not satis­
fied its burden of establishing that the Union should have been
aware of this. The Union has approximately 1000 members
and 200 employers under contract; two to four of these mem­
bers were employed by the Respondent. In addition, it was
only the wages and benefit portions of the contract that the
Respondent was not honoring. The Union would have no way
of knowing that the Respondent was not paying its employees
the commercial rate for commercial work unless the employees
notified the Union of the discrepancy, which, apparently, they
did not do. Further, absent a request by the employees, I would
not expect Vealey, or the Union’s three agents, to examine the
benefit office records to ascertain whether the proper stamps
were purchased. I therefore find that even if Section 10(b) had
been properly plead, I would have dismissed this defense.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com­
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Hudson Valley District Council of Carpenters and the Un­
ion have each been labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) of the Act by not
complying with the terms of its contract with the Union.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(5) of the Act, I shall recommend that it cease and desist
from failing to apply the terms of the latest Master Agreement
regarding the wages and fringe benefits of its employees.
recommend that it be ordered to comply with the terms of the
Master Agreement including, inter alia, the provisions relating
to rates of pay and fringe benefits. I shall also recommend that
the Respondent be ordered to make whole its employees for
any loss of earnings or other benefits that resulted from the
Respondent’s failure to comply with these provisions of the
M aster Agreement from October 19, 1998, to the present time.
If any employee suffered any expenses that it would not have
suffered but for the Respondent’s failure to comply with the
provisions of the Master Agreement (for example if the Union
canceled employees’ medical coverage as a result of the Re­
spondent’s actions and the employee had unreimbursed medical
expenses) the Respondent shall reimburse the employees for
such expenses. In addition, if the Respondent’s actions resulted
in the Union and/or HVDC losing initiation fees or dues, the
Respondent shall make them whole for that loss.
[Recommended Order omitted from publication.]
I