Garland-Sherman Masonry

National Labor Relations Board - Board Decisions

Oct 31, 1991

305 N.L.R.B. 511 (N.L.R.B. 1991)

511
305 NLRB No. 55
GARLAND-SHERMAN MASONRY
1 The judge found that the International Union of Allied Crafts-
men, Local #6, Retirement Fund was not an agent of either Re-
spondent. The General Counsel argues, inter alia, that agency was
established because the Fund’s November 22, 1989 letter to retirees
impermissibly refers to the Union’s geographical jurisdiction as lim-
iting the scope of the new benefits suspension policy. This argument
lacks merit. We initially observe that the official minutes of the
Fund trustees’ meeting held on November 8, 1989, state that ‘‘the
Trustees adopted a Plan amendment suspending the benefits of any
retired participant entering into employment in the same industry, the
same trade or craft and the same geographical area covered by the
Plan [emphasis added] . . . .’’ Thus, it appears that either the No-
vember 8 letter is in error or the geographical jurisdictions of the
Fund and the Union are coextensive. The record contains no evi-
dence to the contrary. In any event, regardless of whether the scope
of the new policy is permissible under ERISA, we adopt the judge’s
findings that the Fund was not an agent because the record shows
that the trustees acted to protect the Fund’s interests pursuant to the
recommendations of an independent consultant who advised it that
ERISA permitted adoption of this plan amendment and who drafted
the letter to the retirees. See generally Commercial Property Serv-
ices, 304 NLRB 134 (1991).
1 A joint brief was filed on behalf of the Company, Union, and
Retirement Fund.
Garland-Sherman Masonry and Manuel McCaslin
International Union of Bricklayers and Allied
Craftsmen, Local No. 6 and Manuel McCaslin.
Cases 10–CA–24740 and 10–CB–5569
October 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 28, 1991, Administrative Law Judge
William N. Cates issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondents and International Union of Al-
lied Craftmen, Local #6, Retirement Fund, a party in
interest named in the complaint, filed a joint answering
brief.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Richard P. Prowell, Esq., for the General Counsel.
Gerald M. Feder, Esq. (Feder & Associates), of Washington,
D.C., for the Company, Union, and Retirement Fund.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. The hear-
ing in this matter was held in Chattanooga, Tennessee, on
October 19, 1990. On June 11, 1990, the Regional Director
for Region 10 of the National Labor Relation Board (the
Board) issued an order consolidating cases, consolidated
complaint and notice of hearing, based on unfair labor prac-
tice charges filed by Manuel McCaslin, an individual, on
May 2, 1990, in Case 10–CA–24740 alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act) against Garland-Sherman Masonry (the Company),
and in Case 10–CB–5569 alleging violations of Section
8(b)(1)(A), and (2) of the Act against International Union of
Bricklayers and Allied Craftsmen, Local No. 6 (the Union).
International Union of Allied Craftsmen, Local #6, Retire-
ment Fund (the Retirement Fund) was named a party in in-
terest in the complaint and is alleged to have been at all
times material an agent of the Company and Union operating
pursuant to directives of trustees appointed by the Company
and Union.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs.
Based on the entire record, on briefs filed by counsel for
the General Counsel and counsel for the Company, Union,
and Retirement Fund,1 and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated, that at times material the Company
has been, and is, a Tennessee corporation with an office and
place of business located in Chattanooga, Tennessee, from
which it operates as a masonry contractor in the construction
industry. During the calendar year preceding issuance of the
complaint, which is a period representative of all times mate-
rial, the Company purchased and received at its Tennessee
jobsites goods valued in excess of $50,000 directly from sup-
pliers located outside the State of Tennessee. I find the Com-
pany is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The parties stipulated, and I find, the Union is and at all
times material has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR PRACTICES
The facts set forth herein were stipulated to, admitted, or
not disputed.
The Retirement Fund is a trust established by agreement
entered into on December 12, 1967, by and between the
Union and employers represented by the Masonry Contrac-
tors Association of Chattanooga, Tennessee (the Masonry
Contractors). In each of the past 2 years, the Company has
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Southern Benefit Administrators, Inc. of Nashville, Tennessee
(SBA), serves as the contract administrator for the Retirement Fund.
SBA Founder and Consultant Jere Brassell serves as actuarial con-
sultant to the Retirement Fund.
3 SBA Founder and Consultant Brassell testified that when he be-
came consultant to the Retirement Fund in 1981 the plan maintained
no ‘‘suspension rules’’ even though regulations authorizing such had
issued prior to that time. Brassell testified there are approximately
10 to 11 different types of suspension of benefits rules among the
16 or so plans that he personally works with. He testified he thought
it was ‘‘odd’’ that the Retirement Fund’s board of trustees had never
seriously considered implementing suspension of benefits rules prior
to 1988. He testified the board of trustees began to question him in
1988 about such rules. As a result of the questions, Brassell ‘‘drafted
a proposed amendment for consideration by the trustees’’ which was
‘‘reviewed in various forms over a period of at least a year and fi-
nally adopted in November 1989.’’
4 Brassell testified the burden of proof as to whether a retiree is
actually working for a nonsignatory employer rests with the retiree.
He stated that under Federal guidelines governing multiemployer
plans, the Retirement Fund ‘‘can assume’’ that information provided
it by the board of trustees related to retirees working for nonsigna-
tory employers is correct. Brassell stated the retiree has ‘‘an imme-
diate right of appeal’’ if the retiree questions the actions taken by
the Retirement Fund or if the retiree questions the accuracy of the
information upon which the action was taken.
5 Parks is a business manager for the Union.
6 McCaslin and Smith are named in the complaint as having had
their pension payments allegedly unlawfully suspended by the Re-
tirement Fund.
been a member of the Masonry Contractors and as such is
bound by the above-mentioned agreement. The Retirement
Fund is a multiemployer plan within the meaning of the Em-
ployee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. § 1001 et. seq. (1974).
The Retirement Fund was established and is maintained in
accordance with Section 302(c) of the Labor Management
Relations Act of 1947 (LMRA) 29 U.S.C. § 151 et. seq.
1947. The Retirement Fund is administered by a board of
trustees with employees and employers equally represented
in the administration of the Retirement Fund as required by
LMRA, Section 302(c)(5)(b).
On November 8, 1989, the Retirement Fund’s board of
trustees met at a regularly scheduled meeting. At that meet-
ing the board of trustees on recommendation of their profes-
sional administrator2 adopted a suspension of benefits pol-
icy.3 As of November 8, 1989, the Retirement Fund had an
unfunded actuarial liability for a portion of the accrued bene-
fits. As of the hearing, it still had an unfunded actuarial li-
ability. The Retirement Fund’s professional administrator has
no relationship to the Company or Union and has never had
any such relationship.
Under the Retirement Fund’s suspension of benefits pol-
icy, if a retiree returns to work for a signatory employer, i.e.,
an employer who is obligated by agreement to make con-
tributions to the retirement fund for all work performed by
participants in the fund, the retiree continues to receive re-
tirement benefits and the employer continues to make con-
tributions necessary to fund the retirement plan. If a retiree
returns to work for a nonsignatory employer, no contribu-
tions are made to fund retirement benefits and the partici-
pant’s benefits are suspended. Under the Retirement Fund’s
rules, the retiree’s status as a member or nonmember of the
Union is not taken into account in determining whether to
suspend benefits. The Retirement Fund maintains no records
of union membership. SBA Founder and Consultant Brassell
testified that as contract administrator, he received informa-
tion concerning whether a retiree was working for a
nonsignatory employer from one of the members of the
board of trustees.4 board of trustees’ member George F.
Parks Jr.,5 testified he learned of employees/retirees working
for nonsignatory employers at union meetings and from other
sources.
On or about November 22, 1989, the Retirement Fund
issued the following letter to all fund participants, including
Manuel McCaslin and Bobby G. Smith6 to whom it had been
paying nonforfeitable retirement benefits:
November 22, 1989
To: All Retired Participants
Re: Suspension of Retirement Benefits
Dear Retired Participant:
Please be advised that the Board of Trustees of the
International Union of Bricklayers and Allied Crafts-
men Local No. 6 and Participating Employers Retire-
ment Fund recently met and at that time reviewed the
Plan’s policy regarding employment by retired partici-
pants.
The purpose of this letter is to notify you of a change
to the Plan we have adopted effective immediately
which will affect the monthly benefit payable to you
should you elect to accept employment under such cir-
cumstances. Specifically, should you accept employ-
ment as a bricklayer in the construction industry within
the geographical jurisdiction of Bricklayers Local
Union No. 6 for an employer who is not signatory to
an agreement with Bricklayers Local Union No. 6
which requires contributions to the Retirement Fund,
your monthly benefit will be suspended. Such suspen-
sion will occur only for those months during which you
are employed for 40 or more hours.
However, you should be aware that the Trustees will
automatically suspend the benefits of any retired partic-
ipant who is determined to be working for a non-signa-
tory contractor unless you produce evidence in advance
that you are working for fewer than 40 hours per
month. If no such notice is received by the Fund office,
it will be assumed that you are working 40 or more
hours and your benefit will be automatically suspended.
In order to insure that your benefit is not suspended
when it should not be, you should notify the Fund of-
fice in writing when you accept such employment and
indicate whether you expect to be working 40 or more
hours per month. If you fail to notify the Fund office
of such employment and it is learned that you are so
employed, not only will your future benefit be sus-
pended until you can prove that you are no longer en-
gaged in such employment, but any overpayments will
be deducted from future monthly payments which may
be due you.
513GARLAND-SHERMAN MASONRY
7 Counsel for the General Counsel relies on Iron Workers Local
15, 298 NLRB 445 fn. 2 (1990), to support his above-referenced
contention. I note, however, that in that case which dealt with liabil-
ity for backpay in a hiring hall situation, the Board, citing Wolf Trap
Foundation, 287 NLRB 1040 (1988), rejected the notion of strict li-
ability through the doctrine of respondeat superior in agency type
cases holding instead that account must be taken of the ‘‘specific
circumstances of the agency relationship.’’ To accept Counsel for the
General Counsel’s contention, one would have to apply a doctrine
of strict liability which the Board and Courts have rejected. I have
addressed in the body of this Decision the impact of officials of the
Company, Masonry Contractors, and Union serving as trustees of the
Retirement Fund.
8 This is the popular term for a trust established in accordance with
Sec. 302(c)(5) of the Act. See Teamsters Local 449 (Universal Liq-
uor Corp.), 265 NLRB 1539 fn. 4 (1982).
9 The precise question at issue in Amax Coal Co. was ‘‘whether
the employer-selected trustees of a trust fund created under Sec.
302(c)(5) are ‘representatives’ of the employer ‘for the purposes of
collective bargaining or the adjustment of grievances’ within the
meaning of Sec. 8(b)(1)(B).’’
10 See NLRB v. Teamsters Local 449, 728 F.2d 80, 86–87 (2d Cir.
1984).
We would therefore encourage you to always let the
Fund office know if you are considering such employ-
ment. The Fund office staff will be pleased to answer
any questions you may have concerning the Plan’s new
suspension rules. You may contact the Fund office at
899–2593.
Best regards,
Your Board of Trustees
At certain times since November 22, 1989, retirees
McCaslin and Smith returned to work and were employed in
excess of 40 hours per month by one or more nonsignatory
employers that were not contributing to the Retirement Fund.
On or about February 1 and August 1, 1990, the Retire-
ment Fund suspended pension payments to McCaslin and
Smith, respectively, pursuant to the suspension rules outlined
by the board of trustees in the above-set forth November 22,
1989 letter.
The Retirement Fund has continued to enforce the terms
and policies expressed by the board of trustees in the above-
set forth November 22, 1989 letter.
IV. DISCUSSION, ANALYSIS, AND CONCLUSION
The key issue to be addressed is whether the Retirement
Fund is, and acted as, an agent of the Company and Union
at the time it implemented and thereafter carried out its sus-
pension of benefits policy. A resolution of this fundamental
issue is necessary in that the unfair labor practice provisions
of the Act only applies to employers, unions, or their agents.
Counsel for the General Counsel contends the operation of
the Retirement Fund was, and is, completely controlled by its
trustees. Counsel for the General Counsel further contends
the trustees in turn are officials of the Company and Union
involved. From these two contentions, he asserts:
It is therefore clear that officials of Respondent Em-
ployer and Respondent Union collectively controlled
the activities of the Fund, and under the common law
of agency, this control establishes that the Fund acts as
an agent of Respondent Employer and Respondent
Union.
Counsel for the Company, Union, and Retirement Fund,
on the other hand, asserts the Retirement Fund is neither an
employer nor a union under the NLRA and ‘‘under applica-
ble legal principles and precedent involving ERISA trust
funds, the Fund is not an ‘agent’ of the Respondent Em-
ployer or the Respondent Union.’’ Counsel further contends
that because the acts complained of by counsel for the Gen-
eral Counsel were performed by the Retirement Fund, a
nonparty which is not liable under the NLRA’s unfair labor
practice provisions, no unfair labor practices have been com-
mitted.
There is no question but that the board of trustees through
their own actions and the actions of a contract administrator
control the Retirement Fund. There is likewise no question
but that certain members of the board of trustees are either
officials of the Company, Masonry Contractors, or the
Union; however, it does not, as contended by counsel for the
General Counsel, follow that this ‘‘control’’ establishes an
agency relationship between the Retirement Fund and the
Company and Union.7 Looking closer at the situation, I note
the general makeup of trustees of a ‘‘Taft-Hartley Trust,’’8
to the extent outlined below, is dictated by statute. Section
302(c)(5) of the Act requires that ‘‘employees and employers
[be] equally represented in the administration of such fund,
together with such neutral persons as the representatives of
the employers and the representatives of the employees may
agree upon.’’ The Retirement Fund is composed of an equal
number of employer and employee representatives appointed
by the employers and employees representatives. The mere
fact that a trustee is appointed by one side or the other does
not, in and of itself, make the trustee an agent of the party
appointing him or her nor does it make the Fund itself an
agent of the employers and/or the union. In NLRB v. Amax
Coal Co., 453 U.S. 322 (1981), the Supreme Court held9 em-
ployer appointed trustees of a jointly administered trust fund,
such as the jointly administered one involved in the instant
case, are not agents of the employer but fiduciaries ‘‘whose
duty to the trust beneficiaries must overcome any loyalty to
the interest of the party that appointed him.’’ The Court
made it clear ERISA’s fiduciary standards ensure that any
dual loyalties will be overcome. Simply stated, the Retire-
ment Fund is not, as a matter of law, the agent of either the
Company or the Union merely because the board of trustees
were appointed by the Company and Union when the Retire-
ment Fund was established. The Court, at least implicitedly,
left open in its Amax Coal Co.—decision the question of
whether pension fund trustees can ever act as union or em-
ployer agents and thus be subject to the Board’s jurisdic-
tion.10 Counsel for the General Counsel urges the trustees
can act as agents of either or both the Company and Union
and in support thereof relies on the exceptions he contends
the Board made to the Court’s holding in Amax Coal Co.
which exceptions were outlined in Service Employees Local
1-J (Shor Co.), 273 NLRB 929, 931 (1984). In that case, the
Board held:
In determining whether fund actions can be attrib-
uted to a union, the courts have identified at least three
factual situations: [Footnotes omitted.]
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 It is undisputed that retirees do not have their benefits sus-
pended if they obtain employment within the jurisdiction of the Fund
in industries not involving bricklaying or outside the geographic ju-
risdiction of the Union whether they are engaged in bricklaying or
some other industry.
1. Where provisions of a collective-bargaining agree-
ment remove the discretion to administer the funds
solely for the benefit of the employees.
2. Where the trustees’ actions were in fact directed
by union officials.
3. Where the trustees’ acts were undertaken in their
capacities as union officials rather than as trustees.
In this regard, counsel for the General Counsel makes three
assertions, namely: (1) the actions taken by the trustees
‘‘were in fact taken by officials of both Respondent Em-
ployer and Respondent Union’’; (2) the actions of some of
the trustees ‘‘were undertaken in their capacity as officials of
Respondent Union for otherwise the Fund would not have
been aware that breaches of its [suspension of benefits] pol-
icy [had] occurred’’; and (3) that by its suspension of bene-
fits policy, the Retirement Fund sought ‘‘to extend the
Union’s collective bargaining relationship to other employers
in the industry within its geographic jurisdiction.’’
On this aspect of the case, counsel for the Company,
Union, and Retirement Fund argue that in order to establish
the existence of an agency relationship between the Retire-
ment Fund and the Company and Union, counsel for the
General Counsel would have had to have but failed to dem-
onstrate by substantial evidence that the Retirement Fund did
not act independently of the Company and Union when it
implemented its suspension of benefits policy.
Counsel for the General Counsel has made no showing of
any contractual provisions that would remove from the Re-
tirement Fund’s board of trustees their discretion to admin-
ister the Funds solely for the benefit of the employees. Ac-
cordingly, counsel for the General Counsel has failed to fac-
tually establish the first exception to Amax Coal Co., supra,
as outlined in Service Employees Local 1-J (Shor Co.), supra.
I shall next consider whether the action taken by the Board
of Trustees with respect to the implementation of a suspen-
sion of benefits policy was undertaken at the direction of the
Company or Union and/or whether any actions taken were
undertaken by the Trustees in their capacity as Company or
Union officials rather than as Retirement Fund trustees. In
that regard, I am in agreement with counsel for the Com-
pany, Union, and Retirement Fund that the suspension of
benefits policy implemented by the trustees was in compli-
ance with ERISA requirements. First, the statute vests the
Board of Trustees with ‘‘exclusive authority and discretion to
manage and control the assets of the plan.’’ 29 U.S.C.
§ 1103(a). Secondly, ERISA requires that trustees carry out
their duties ‘‘in accordance with the documents and instru-
ments governing the plan insofar as such documents and in-
struments are consistent with the provisions of this Title.’’ 29
U.S.C. § 1104(a)(1)(D). The trust agreement applicable au-
thorizes the Board of trustees to implement benefits policies
including, but not limited to: the nature, amount and duration
of benefits; eligibility requirements for benefits; methods of
providing benefits; written plans on which benefits payments
are to be made; and, the appeal procedure to be followed
when benefits are denied. See Joint Exhibit 1, appendix 3,
article 9, sections 9.1–9.6 (inclusive). Thus, when the Retire-
ment Fund’s board of trustees decided, on advice of their
outside consultant/contract administrator, to establish a sus-
pension of benefits policy with respect to retirees working
for nonsignatory employers, they did so within the overall
framework of their discretionary authority.
It also appears the board of trustees had statutory authority
to implement a suspension of benefits policy. On this point,
ERISA at 29 U.S.C. § 1053(a)(3)(B)(ii) provides:
(B) A right to an accrued benefit derived from em-
ployer contributions shall not be treated as forfeitable
solely because the plan provides that the payment of
benefits is suspended for such period as the employee
is employed, subsequent to the commencement of pay-
ment of such benefits.
. . . .
(ii) in the case of a multiemployer plan, in the same
industry, in the same trade or craft, and the same geo-
graphic area covered by the plan, as when such benefits
commenced.
The Retirement Fund’s suspension of benefits policy is
just that, a ‘‘suspension’’ of benefits, not a ‘‘forfeiture’’ of
benefits for retirees who return to full time work with a non-
signatory employer. The suspension only lasts as long as the
retiree elects to work for a nonsignatory, noncontributing em-
ployer. As can be seen from the portion of the statute set
forth above, the Retirement Fund’s actions are consistent
with that authorized by ERISA in that in the case of multi-
employer plans benefits payments may be ‘‘suspended’’
when a retiree returns to work ‘‘in the same industry, in the
same trade or craft, and the same geographic area covered
by the plan.’’ Counsel for the General Counsel states he
‘‘has no quarrel with this provision’’ of ERISA but rather ar-
gues the Retirement Fund ‘‘seeks to expand this provision’’
and apply its suspensions of benefits policies only against
those retirees who are reemployed in the industry with a non-
signatory employer. In this regard, counsel for the General
Counsel asserts:
While ERISA may permit the Fund to cease pay-
ments to employees who obtain work in the bricklaying
industry, ERISA does not sanction a denial of benefits
to employees based upon whether or not they are em-
ployed by employers who are signatory to an agreement
with Respondent Union. Clearly, the Fund and Re-
spondent Union (and Respondent Employer as an ancil-
lary beneficiary to the scheme), seek to withhold pay-
ments to employees as a club forcing them to force
their employer’s to execute collective bargaining agree-
ments with Respondent’s Union, or, in the alternative,
forcing retired employees to limit their employment and
support to employer’s who have an agreement with Re-
spondent Union.11
Counsel for the General Counsel’s contention regarding
ERISA might well be valid if the Retirement Fund involved
was other than a multiemployer type plan. ERISA, 29 U.S.C.
§ 1053(a)(3)(B)(i) provides that ‘‘in the case of a plan other
than a multiemployer plan’’ a retiree’s benefits may be sus-
515GARLAND-SHERMAN MASONRY
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
pended only when the retiree is reemployed by a contributing
employer. No such restriction is placed on the trustees of a
multiemployer plan to distinguish between retirees reemploy-
ment with signatory and nonsignatory employers. In agree-
ment with counsel for the Company, Union, and Retirement
Fund, I am persuaded Congress specifically considered the
signatory/nonsignatory distinction in enacting suspension of
benefits provisions and in doing so included such a restric-
tion in other than multiemployer plans but did not do so in
multiemployer plans leaving such to the discretion of the
trustees of multiemployer funds. Simply stated, I am per-
suaded the Retirement Fund’s suspension of benefits policy,
as enacted, is permissible under ERISA.
Even though the Retirement Fund’s suspension of benefits
policy complied with fund documents and ERISA, such does
not necessarily resolve the matter. Further examination is
necessary to ascertain if the Retirement Fund acted in its
own best interests or if its actions were taken to advance in-
terests of the Union and/or Company independent of, or
without regard for, the Retirement Fund. Clearly, the suspen-
sion of benefits policy enacted by the board of trustees ad-
vances the Fund’s financial health and is consistent with its
fiduciary duty to preserve and advance its assets in a prudent
manner. See 29 U.S.C. § 1104. That the board of trustees had
an obligation to advance the assets of the Retirement Fund
is evidenced by, among other things, the fact the Fund is not
yet fully funded. Under the Retirement Fund’s suspension of
benefits policy, if a retiree returned to work for a signatory
employer, the Retirement Fund continued to collect contribu-
tions thus keeping the Fund financially strong. If however,
a retiree returned to work for a nonsignatory employer in the
industry, the Fund received no contributions for that reem-
ployment, thus depleting fund assets without replenishment.
In agreement with counsel for the Company, Union, and Re-
tirement Fund, I am persuaded a stable or growing contribu-
tion base is essential to a multiemployer plan’s capacity to
meet its benefits commitments. Accordingly, I am persuaded
that the board of trustees statutorily authorized actions re-
garding its suspension of benefits policies where undertaken
in the Fund’s interest to preserve assets. Simply stated, the
evidence is persuasive, the board of trustees actions with re-
gard to suspension of benefits were taken with an eye toward
what was best for the Fund beneficiaries and not specifically,
or solely, for the interests of the Company or the Union that
appointed them. The mere fact the Union may have benefited
from the suspension of benefits policy to the extent it may
have encouraged retirees who returned to work to do so only
for a signatory employer or to work toward having a non-
signatory employer become a signatory employer such does
not establish an agency relationship between the Union and
the board of trustees. Stated differently, the fact that the in-
terest of the board of trustees on behalf of the Retirement
Fund may have paralleled those of the Union does not in
itself give rise to an agency relationship between them. Op-
erating Engineers Local 12 (Griffith Co.), 243 NLRB 1121,
1125 (1979), enfd. 660 F.2d 406, 411 (9th Cir. 1981), cert.
denied 457 U.S. 1105 (1982).
The fact that the employment status of retirees was, in
some instances, made known to the board of trustees by its
own members, which members were appointed by and also
served as officials of the Union, does not establish an agency
relationship between the Union and the Retirement Fund.
Nor does it establish that the board of trustees’ actions were
undertaken in their capacities as union officials. The issue is
not how the Retirement Fund became aware of information
on the employment status of retirees, rather, it is the use it
made of that type information that is critical. The Board of
Trustees utilized such job status information to protect and
enhance the Fund in the interest of the beneficiaries of the
Fund.
In summary, I recommend the complaint be dismissed in
its entirety in that it has not been established that the Retire-
ment Fund was, or acted as, an agent of the Company and
Union. It has also not been shown that the actions of the
board of trustees were undertaken in any manner such that
the Retirement Fund could be deemed to be an agent of the
Company and/or Union.
CONCLUSIONS OF LAW
1. Garland-Sherman Masonry is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The International Union of Bricklayers and Allied
Craftsmen, Local No. 6 is a labor organization within the
meaning of Section 2(5) of the Act.
3. The International Union of Allied Craftsmen, Local #6,
Retirement Fund is not an agent of the Company and Union.
4. Neither the Company nor Union has violated the Act
in any manner alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The complaint is dismissed in its entirety.