Local 964, Carpenters

National Labor Relations Board - Board Decisions

Jul 24, 1970

184 N.L.R.B. 625 (N.L.R.B. 1970)

LOCAL 964, CARPENTERS 625
Local 964 , United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Contractors &
Suppliers Association of Rockland County, New
York, Inc. Case 2-CB-4666
July 24, 1970
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On April 7, 1970, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, adopting, with certain modifi-
cations, the Decision issued by Trial Examiner Sid-
ney Sherman on September 17, 1969. Thus, the
Board agreed with the Trial Examiner's findings,
inter alia , that Respondent violated Section 8(b)(3)
of the Act by insisting as a condition to reaching
any agreement upon two nonmandatory subjects of
bargaining, and by engaging in other tactics
designed to frustrate and avoid agreement with the
Charging Party; violated Section 8(b)(I)(B) and
8(b)(3) of the Act by coercing and restraining em-
ployer-members of the Charging Party to abandon
multiemployer bargaining through the Charging
Party and to execute individual contracts with
Respondent, which contracts provide for employer
contributions to an industry advancement fund and
to various other trust funds jointly administered by
Respondent and Rockland County Carpenter Con-
tractors Association, Inc. (herein Carpenters As-
sociation). Accordingly, the Board adopted the
Trial Examiner's recommended remedy and or-
dered that Respondent, inter alia , cease giving ef-
fect to the individual contracts it had executed with
members of the Charging Party, and take the fol-
lowing affirmative action: (1) offer to the Charging
Party, as the duly designated bargaining representa-
tive of its employer-members, a contract containing
the same terms and conditions which it had granted
to the Charging Party's members individually, but
omitting all provisions relating to jointly ad-
ministered trust funds and industry advancement
fund, and (2) if the parties fail voluntarily to
resolve their differences over the trust funds within
60 days of the Board's Order, Respondent shall (a)
refund to the members of the Charging Party all
contributions which they were required to make,
since July 19, 1968, under their individual con-
tracts with Respondent, to the various trust funds
jointly administered by Respondent and Carpenters
Association and (b) offer to the Charging Party the
same joint trust fund provisions as are contained in
those individual contracts, except that the trust
funds which were established by previous agree-
ments between the Charging Party and Respondent,
shall be substituted for those designated in the in-
dividual contracts.
In addition to adopting the foregoing recom-
mended order of the Trial Examiner, the Board also
ordered that Respondent refund to members of the
Charging Party all moneys which they were
required, under their individual contracts with
Respondent, to contribute to the industry advance-
ment fund provided therein. The Board's Order
also required that all moneys ordered to be
refunded shall be paid with interest as provided in
Isis Plumbing & Heating Co., 138 NLRB 716.
Thereafter, on April 30, 1970, Respondent filed
a motion to reopen hearing, with supporting af-
fidavit, on the grounds that the Decision encom-
passes materials neither alleged in the complaint
nor litigated at the hearing, and that it affects
necessary parties, including the Carpenters As-
sociation and various trust funds, which were not
joined in this proceeding and therefore are not
bound by the Board's Decision and Order. In addi-
tion, Respondent proposes to show, by newly
discovered evidence, that the Charging Party was
unwilling to accept any contract with Respondent
without an industry advancement fund provision,
and "that it was the sole intent of the charging
party to control the non-member employers in the
Rockland area by control of the Union Trust Funds
and the protection given to their members in not
being audited by the trustees." Accordingly,
Respondent requests that the hearing herein be
reopened to permit the joining of all necessary
parties for the purpose of fully litigating matters
which allegedly affect their legal or contractual
obligations. In sum, Respondent proposes "to show
that the remedy as ordered by the Board is not in
the best interest of justice on the facts to be
presented."
The General Counsel and the Charging Party
filed memoranda in opposition to Respondent's mo-
tion and, thereafter, Respondent filed a memoran-
dum in reply.
The Board, having duly considered the matter,
finds that the matters asserted in Respondent's mo-
tion either were previously fully considered by the
Board or are lacking in merit. Thus, we find no
merit in Respondent's contention that it was denied
due process of law because the Board's Order,
requiring it to abrogate contracts and to refund
moneys, was neither alleged nor litigated. Respon-
dent concedes, however, that neither the Board's
' 181 NLRB No 154.
184 NLRB No. 67
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rules and Regulations, Series 8, as amended, Sec-
tion 102.15, nor its well-established practice and
procedure, requires that the proposed remedy be
alleged in the complaint. It is for the Board to
fashion the remedy which it deems appropriate to
undo the effects of the unfair labor practices found
to have been committed. We also find no merit in
Respondent's contention that the Carpenters As-
sociation and/or the trust funds are necessary
parties to this proceeding. The complaint alleged
and, on the basis of the entire record, the Board
found, that Respondent violated Section
8(b)(1)(B) and 8(b)(3) of the Act by refusing to
bargain with the Charging Party while at the same
time coercing the Charging Party's members to ex-
ecute individual agreements with it, pursuant to
which individual agreements the Charging Party's
members were forced and required to pay moneys
into trust funds administered jointly by Respondent
and Carpenters Association. Our remedy is, ad-
dressed solely to Respondent and is tailored to
undo the unfair labor practices committed by it, but
does not extend to any agreements or relationships
between Respondent and Carpenters Association.
Thus, Respondent is ordered to cease giving effect
to the separate contracts which it unlawfully im-
posed upon Charging Party's members and to reim-
burse these employers for moneys they were
required by Respondent's unfair labor practices to
pay thereunder into trust funds. Contrary to
Respondent's contention, our Order does not
require any action by the Carpenters Association or
the trustees of the trust funds.2 However, to the ex-
tent that our Order might appear ambiguous in this
regard and imply that the trustees of the funds shall
refund moneys, we shall amend it for purposes of
clarification.
As to the "newly discovered evidence" which
Respondent seeks to adduce at a reopened hearing,
we find that such evidence is either not new or is ir-
relevant. Thus, Respondent's contention that the
Charging Party was unwilling to accept a contract
without an industry advancement fund was raised
by it as a defense at the hearing and in its excep-
tions to the Trial Examiner's Decision and has been
fully considered and rejected by the Board. Finally,
we find irrelevant and immaterial Respondent's
further contention that it was the Charging Party's
"sole intent ... to control the non-member em-
ployers in the Rockland area by control of the
Union Trust Funds and the protection given to their
members in not being audited by the trustees." Ac-
cordingly,
It is hereby ordered that the motion to reopen
hearing be, and it hereby is, denied as the matters
asserted either were previously fully considered by
the Board or are lacking in merit.
It is hereby further ordered that the Board's
Order herein be, and it hereby is, amended as fol-
lows:
1. At paragraphs 2(b) and (c) of the Order, in-
sert the phrase "a sum of money equal to" between
the words "aforenamed Association" and "all con-
tributions" so that these paragraphs, in pertinent
part, will read, "... refund to the members of the
aforenamed Association a sum of money equal to
all contributions made by them...."
2. At numbered paragraphs 2 and 3 at the end of
the text of the "Appendix," insert the phrase "a
sum of money equal to" between the words "of that
Association" and "all contributions" so that these
paragraphs, in pertinent part, will read, "Refund to
the members of that Association a sum of money
equal to all contributions paid by them...."
' Respondent 's argument that compliance with the Board 's Order, absent
a joining of other parties, will subject it to various breach of contract suits is
specious and totally irrelevant , since Respondent placed itself in this dilem-
ma by engaging in the unfair labor practices found herein.