Made 4 Film, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1152 (N.L.R.B. 2002)

1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Made 4 Film, Inc., and International Alliance of The­
atrical Stage Employees, AFL–CIO, Local 477,
Petitioner. Case 12–CA–21148
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND COWEN
On January 31, 2002, Administrative Law Judge Mar­
garet G. Brakebusch issued the attached decision. The
General Counsel filed an exception and a supporting
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 exception and brief and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order as
modified and set forth in full below.
The judge found that, after March 19, 2000, the Re­
spondent, a film and video set design and construction
company, failed to make benefit fund contributions as
required in its collective-bargaining agreement with the
Union. In her remedial Order, the judge ordered the Re­
spondent to make the benefit fund contributions owed
under the contract up to April 14, 2001, the contract ex­
piration date. The Ge neral Counsel excepted to the
judge’s remedial Order, arguing that the Respondent’s
obligation to pay benefit fund contributions continues
beyond the expiration date of the contract until a succes­
sor agreement or lawful impasse is reached. We agree
and modify the judge’s Order accordingly. See R.E.C.
Corp., 296 NLRB 1293 (1989) (“Generally, an employer
has a statutory obligation to continue to follow the terms
and conditions of employment governing the employer-
employee relationship in an expired contract until a new
agreement is concluded or good-faith bargaining leads to
impasse.”).1
The judge found a unilateral modification of the con-
tract and ordered Respondent to adhere to the contract for
its term. However, the Ge neral Counsel’s complaint
alleged, and the evidence established, that the Respon­
dent’s action was also a unilateral change in terms and
conditions of employment. Accordingly, the remedy
should also include a provision that, after exp iration of
1 We shall modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001).
Further, we shall delete from the Order and notice the provision that
information be furnished to the Union “on request,” in accordance with
our decision in I & F Corp., 322 NLRB 1037 fn. 1 (1997).
the contract, Respondent must continue the status quo
unless and until an impasse or agreement is reached.2
ORDER
The National Labor Relations Board adpopts the rec­
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Made 4 Film, Inc., North Miami, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union by
unilaterally failing to make the contributions to the Un­
ion Health and Welfare and Annuity Funds since April
14, 2000.
(b) Refusing to bargain collectively with the Union as
the exclusive representative of all the employees in the
unit described below, by refusing to furnish or by delay­
ing in furnishing the Union with information showing the
names, addresses, and telephone numbers of all employ­
ees who have performed bargaining unit work after April
14, 2000, as well as all payroll records, including time
sheets, showing the hours worked by bargaining unit
employees after April 14, 2000.
All employees classified as Coordinator, Foreman,
Gang Boss, Model Makers, Prop-Maker-Set Construc­
tion, Construction Drivers, Utility Maintenance Tech­
nicians, Buyer, Welder, Riggers, Paint Foreman, Plas­
terers, Set Painters, Lead Scenic, Scenic Artist, Sign
Painters/Writers, Standby Painters, Sculptors, Fork-
Lift/Crane/Hi-Lift and Operators.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2 Member Cowen raises an issue not raised by the Respondent. He
argues that the Respondent cannot be required to make payments be­
yond the expiration of the contract because such payments would be
prohibited by Sec. 302(c)(5), which requires that employer payments
into union trust funds be detailed in a “written agreement.” In Hinson
v. NLRB, 428 F.2d 133, 138–139 (8th Cir. 1970), however, the court
held that the terms of an expired contract, together with the underlying
trust agreements, are sufficient to satisfy the requirements of Sec.
302(c)(5). See also Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736
(9th Cir. 1981). Here, addendum A of the parties’ 2000–2001 collec­
tive-bargaining agreement specifies that Respondent must make a $20-
per-day-per-employee contribution to the Union Health and Welfare
and Annuity Funds, and that Respondent agrees “to be bound by the
Trust Agreement establishing such Funds and the respective benefit
plans.” Although the actual Trust Agreement is not included in the
record, it is clear from the terms laid out in addendum A that such a
document exists. The judge discredited Wills’ testimony that he was
unaware of the terms of addendum A at the time he signed the agree­
ment, and Wills does not deny the existence of the trust agreement
referred to in the addendum. Although we do not need to reach the
issue, we conclude, contrary to our dissenting colleague, that the “writ-
ten agreement” requirement of Sec. 302(c)(5) is met.
337 NLRB No. 179
MADE 4 FILM, INC. 1153
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay to the Union Health and Welfare and Annuity
Funds the payments that are due since April 14, 2000,
and continue to make the required contribution until such
time as the Respondent bargains with the Union in good
faith to an impasse or to an agreement.
(b) 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, social
security payment records, timecards, personnel records,
and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze
and determine the amounts owed to the Union Health and
Welfare and Annuity Funds since April 14, 2000.
(c) Reimburse any employee for losses or extra ex­
penses the employee incurred due to the Company’s fail­
ure to make these payments to the Union Health and
Welfare and Annuity Funds.
(d) Furnish to the Union in a timely manner the in-
formation requested by the Union on July 24, 2000.
(e) Within 14 days after service by the Region, post at
its North Miami, Florida facility copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent immediately
upon receipt 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 altered, 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
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em­
ployed by the Respondent at any time since April 14,
2000.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi­
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
MEMBER COWEN, concurring in part and dissenting in part.
3 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.”
The Respondent filed no exceptions to the judge’s
finding that it violated Section 8(a)(5) of the Act in vari­
ous respects.1 The General Counsel excepts, however, to
the remedy the judge entered for one of those 8(a)(5)
violations. Noting that the Respondent had a contract
with the Union, the judge found that the Respondent
unlawfully failed to pay to the Health and Welfare and
Annuity Funds the amounts due them. As a remedy for
this violation, she ordered that the Respondent make
whole the funds for moneys due until the exp iration date
of the parties’ contract. My colleagues, granting the
General Counsel’s exception, extend that remedy and
find the Respondent’s liability to pay into the funds con­
tinues until either a successor agreement or a lawful im­
passe in negotiations is reached. The rub in this ex-
tended remedy is Section 302(c)(5) of the Act which
prohibits all payments to an employee representative
unless there is a specific written agreement covering the
payments, and the money is for the sole and exclusive
benefit of the employees. It is true that the courts have
indicated that “[t]he reference in Sec. 302(c)(5)(B) to
‘written agreement with the employer’ does not compre­
hend solely a collective-bargaining agreement to the ex­
clusion of any other possible written agreement,” and
they have added that “a trust fund agreement separate
and apart from the collective bargaining agreement
would surely satisfy the statutory prerequisite.”2 None­
theless, no trust agreement was made a part of this re-
cord. In the absence of such, the latitude allowed by
Section 302(c)(5)(B) cannot come into play, and I would
not grant the remedy that the Ge neral Counsel seeks
based on the state of the present record.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
1 Therefore, I adopt these findings in the absence of exceptions.
2 Henson v. NLRB, 428 F.2d 133, 138 (8th Cir. 1970).
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
Union as your exclusive collective-bargaining repre­
sentative in an appropriate unit, by delaying in furnishing
or by failing to furnish information it requested concern­
ing the identity of employees who have worked after
April 14, 2000 and information concerning the hours
worked by employees after April 14, 2000. The unit is:
All employees classified as Coordinator, Foreman,
Gang Boss, Model Makers, Prop-Maker-Set Construc­
tion, Construction Drivers, Utility Maintenance Tech­
nicians, Buyer, Welder, Riggers, Paint Foreman, Plas­
terers, Set Painters, Lead Scenic, Scenic Artist, Sign
Painters/Writers, Standby Painters, Sculptors, Fork-
Lift/Crane/Hi-Lift and Operators.
WE WILL NOT fail and/or refuse to make contributions
to the Union Health and Welfare and Annuity Funds of
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish the Union the requested information
concerning the names, addresses, and telephone numbers
of all employees who performed bargaining unit work
after April 14, 2000, and the payroll records, including
time sheets, showing the hours worked by the bargaining
unit employees after April 14, 2000.
WE WILL make all unpaid contributions to the Union
Health and Welfare and Annuity Funds that are due and
owing since April 14, 2000, and will continue to make
the required contribution until such time as we bargain
with the Union in good faith to an impasse or to an
agreement.
WE WILL reimburse you for any expenses resulting
from our failure to make the required contributions to the
Union’s funds.
MADE 4 FILM, INC.
John King and Jennifer Burgess-Solomon, Esqs., for the Gen­
eral Counsel.
Homer Wills, Pro Se, for the Respondent .
Robert S. Giolito, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
M ARGARET G. BRAKEBUSCH, Administrative Law Judge. The
original charge was filed on October 20, 2000,1 and amended on
June 29, 2001, by International Alliance of Theatrical Stage Em-
1 All dates are in 2000 unless otherwise stated.
ployees, AFL–CIO, Local 477 (the Union). A complaint issued
on July 31, 2001, alleging that Made 4 Film, Inc. (the Company)
violated Section 8(a)(1) and (5) of the Act by failing and refusing
to make benefit fund contributions2 and failing and refusing to
provide the Union with necessary and relevant information. A
hearing on these matters was conducted before me in Miami,
Florida, on November 29, 2001, at which all parties had the op­
portunity to present testimony and documentary evidence, to
examine and cross-examine witnesses and to argue orally. Its
owner and president, Homer Wills, represented the Company.
Although advised of his right to legal counsel, Wills declined,
and chose to appear and proceed pro se.
Both the General Counsel and the Charging Party have filed
timely briefs in this matter.3 Based upon all of the evidence of
record, including my observation of the demeanor of the wit­
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation with an office and place of
business in North Miami, Florida, where it is engaged in the
business of designing sets for film and video productions. The
July 31, 2001 complaint includes the Board’s jurisdictional
allegations in paragraphs 2(a) through (f). In its undated an­
swer, received by the Regional Director on October 12, 2001,
the Company does not deny meeting the Board’s jurisdictional
standards as alleged in paragraphs 2(a) through (f). The Com­
pany was given the opportunity to supplement or amend its
answer at hearing and declined to do so. Based upon the Com­
pany’s answer and Section 102.20 of the Board’s Rules and
Regulations,4 I find that it is an employer engaged in commerce
within the meaning of Section 2(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.
2 General Counsel’s motion to amend the complaint to change the
date of par. 8(a) to reflect April 14, 2000, and to include annuity fund
contributions, was granted at the hearing.
3 The Company’s posttrial brief was untimely. The due date for fil­
ing was December 31, 2001. As shown by the United States Postal
Service record, the document was sent by Express Mail on January 2,
2002. The Atlanta office of the Judges Division received the brief on
January 4, 2002. The filing of briefs is governed by 29 CFR
§102.11(b). Under that rule, for the mailing to be timely it must be
postmarked, or tendered to the delivery service on or before “the day
before the due date.” The envelope for the brief contains a handwritten
note stating “Tried to mail or Fed Ex 12/29/01 But no holiday pick-
ups!!! Please accept!!” There is no indication that a copy of the Com­
pany’s brief has been served on any other party. In light of my decision
in this case, no prejudice is apparent from the Company’s failure to
submit a timely brief or its failure to serve the other parties. I have
taken into consideration the fact that this respondent appears pro se and
I have considered the text of the Company’s brief.
4 Sec. 102.20 of the Board’s Rules and Regulations provides: “All
allegations in the complaint, if no answer is filed, or any allegation in
the complaint not specifically denied or explained in an answer filed,
unless the respondent shall state in the answer that he is without knowl­
edge, shall be deemed to be admitted to be true and shall be so found by
the Board, unless good cause to the contrary is shown.”
MADE 4 FILM, INC. 1155
II. ALLEGED UNFAIR LABOR PRACTICES
A. Issues Involved in this Case
Counsel for the General Counsel alleges the Company en­
tered into a collective-bargaining agreement (CBA) with the
Union on April 14, 2000, and thereafter unlawfully failed to
make contributions on behalf of its employees to health and
welfare and annuity funds. General Counsel also alleges the
Company has failed to provide the Union with requested infor­
mation regarding payroll records, which would reflect the em­
ployees working for the Company on any given day. General
Counsel contends these records were relevant and necessary to
establish the amount of fund contributions owed by the Com­
pany for its employees.
B. The Agreement
1. Background
Homer Wills has been owner and president of the Company
for the past 6 years and has been in the business of building
scenery and props for the entertainment industry for a period of
12 to 13 years. Wills testified that he had wanted a union con-
tract because there were movies and other work that would only
be available to him if he were a union shop. Although he had
initially anticipated having a union contract by September
1999, he was unable to do so. Wills contends that although an
agreement was not signed with the Union until April, he began
operating as a union shop and advertising as a union shop in
January 2000.5
2. The Union’s evidence
a. Reaching the agreement
Michael McCarthy has been business manager and business
agent for the Union since May 25, 1999. As a business agent,
McCarthy is responsible for policing the International Union’s
agreements and negotiating local agreements with employers.
McCarthy went to Wills’ office in January 2000 because em­
ployees told him that Wills was interested in getting a contract.
McCarthy met with Wills and his secretary, Janine Presley, and
explained the obligations that attached with having a contract.
These obligations included overtime, recognition of certain
holidays, wage requirements, and contributions to the health
and welfare and annuity funds. McCarthy testified that while
commercials require health and welfare6 contributions of $52 a
day per employee, he knew that Wills would never be able to
afford this amount. McCarthy tried to work out an amount that
Wills could afford. McCarthy suggested that Wills might be
able to pay $10 for health and welfare and $10 for annuity con­
tributions. McCarthy explained to Wills that he (McCarthy)
would have to check with the Union’s executive board because
the amount was so much less than normally required.
McCarthy testified that he told Wills that health and welfare
5 McCarthy recalled the Company’s ad in the January 2000 issue of
the Miami Production Guide, advertising, as South Florida’s only union
scenery shop.
6 For the remainder of this decision, any generalized reference to
health and welfare includes annuity as well.
would be included in a side letter to the agreement, as would
the negotiated wage scale.7 The International union agreements
would also be attached to the local agreement because the
Company would automatically go under the terms of the Inter-
national agreement if the work involved a feature or movie.
McCarthy submitted a draft of the proposed agreement to the
International’s president and secured the approval of the Inter-
national to set the health and welfare contribution at $20 per
employee per day. McCarthy met again with Wills and his
secretary approximately a week later. McCarthy brought with
him the redraft of the contract and went over the terms with
Wills. On April 14, 2000, McCarthy met again with Wills and
Presley and the final contract was signed.
The agreement, introduced as General Counsel’s Exhibit 2,
includes the signatures of Wills and McCarthy and Janine
Presley as a witness to both signatures.8 McCarthy testified
that when the agreement was signed on April 14, the agreement
included addenda A and B. McCarthy did not have copies of
addenda C and D, as they were copies of the contracts with the
International and Local 829 that are referenced in the agree­
ment. Addendum A sets out the requirement for the Company
to pay $10 per day per employee to the IASTE National Health
and Welfare Fund and $10 per day per employee to the Annuity
Plan of the IASTE Annuity Fund. The one-page addendum
also provides for the Company to withhold 3 percent of the
gross wages for each employee for union-dues assessment.
Addendum B provides that a minimum of $20 per hour must be
paid to all employees who are listed under the employee classi­
fication section on page 1 of the agreement. Employees in the
classifications of coordinator, foreman, gang boss, lead scenic,
and paint foreman may negotiate their wage scale above the
minimum of $20 per hour.
b. After the signing of the agreement
After April 14, 2000, McCarthy met again with Janine
Presley to give her the health and welfare forms that were to be
completed and submitted to the Union. The Union later re­
ceived completed health and welfare forms from the Company
covering the payroll period ending March 19, 2000. The forms
were accompanied by the requisite checks for the contributions
and the checks were dated April 25, 2000. The forms show that
the contributions were calculated at a rate of $20 per employee
per day. McCarthy testified that during the contract negotia­
tions, Wills also agreed to pay health and welfare contributions
for the period prior to the effective date of the contract. While
this was not a part of the contract, Wills agreed to do so in a
verbal agreement. McCarthy explained that for Wills and the
employees to have health insurance benefits coverage for the
second quarter of the year, coverage had to be established in the
first quarter with contributions covering back to January. The
7 McCarthy explained the wage scale is set at a minimum and any-
thing above that amount may be negotiated between the Company and
the employees. McCarthy confirmed that Wills usually paid wages
over scale.
8 McCarthy testified that while the agreement signed on April 14
contains a line designated for the International, the International’s
signature is not required on a local agreement.
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union contends, and the Company admits, that the Company
made no further contributions to health and welfare.
c. The Union’s request for information
On July 24, 2000, Union Attorney Robert S. Giolito sent the
Company a letter concerning the Company’s failure to make
the required health and welfare contributions. In its letter, the
Union asserts that the Company failed to pay negotiated wages
and to make benefit contributions. The Union also referenced
the Company’s failure to remit union dues since January 1,
2000. The Union demanded immediate payment of all wages
that were due under the contract as well as immediate payment
of all health and welfare and annuity benefit contributions due
since April 1, 2000.9 The Union requested the Company pro-
vide a list showing the name, address, and telephone number of
all employees who had performed bargaining unit work since
April 14, 2000. Additionally, the Union requested all payroll
records, including timesheets, showing the hours worked by
bargaining unit employees since April 14, 2000. McCarthy
testified that after the Union’s letter of July 24, 2000, he con­
tinued to make verbal requests for the information to both Wills
and his secretary.
The Company did not respond to the Union’s July 24, 2000
request for information until Wills sent a letter to McCarthy
dated June 22, 2001.10 In the letter, Wills stated that he had
enclosed reports showing each employee’s number of shifts
from April 17 to September 24, 2000. Wills went on to explain
that after September 24, 2000, all labor was performed by sub-
contractors and paid by invoice. Wills maintained in his letter
that because individuals were paid by the job, there were no
timesheets or information on days (shifts) worked. Wills in­
cluded a report showing subcontractor payments through April
14, 2001, for anyone who was a member of Local 477.
McCarthy testified that while Wills had provided some of the
information requested, the information was not complete.11
McCarthy also explained that the information provided by
Wills was not responsive to the Union’s request because Wills
did not identify the gross wages for each individual nor did he
identify the number of days worked by each individual.
McCarthy explained that the number of days worked is neces-
9 In its July 24, 200l letter, the Union also requests immediate pay­
ment of union dues deducted and withheld from employee paychecks
since on or about January 1, 2000. The letter states, “The Union’s
records show that, for the period January 1 through March 19 (the last
date for which the Union has records), Made 4 Film owes the Union
$2,126.32 in deducted dues.” The letter does not specify whether the
period referenced for dues is 2000 or 2001.
10 Wills’ letter of June 22, 2001, and the accompanying data were
provided after the Union’s charge of October 20, 2000.
11 The attachments to the Company’s letter contain completed health
and welfare contribution forms for the payroll periods ending August
25, 2000, September 10, and 24, 2000. No forms are provided for any
period prior to August 25. No checks or proof of contribution accom­
pany the forms. The remainder of the attachments includes pages enti­
tled “Transactions by Vendor” for the period October 10, 2000, to April
17, 2001. Each page identifies the individual subcontractor with spe­
cific dates and the amount of payment for each date and invoice num­
ber.
sary to determine the appropriate contribution amount based
upon the $20-per-day rate.
McCarthy also received payroll sheets from March 19
through September 24, 2000. This information was hand-
delivered to McCarthy’s office by Homer Wills on June 8,
2001. The information provided by Wills documented that he
had deducted the requisite union dues for the wages paid during
those pay periods. McCarthy testified that this was the only
time period for which dues were deducted and forwarded to the
Union. McCarthy estimated that the Union received these dues
sometime around October 2000.
d. The Company’s treatment of other contract provisions
McCarthy testified that until the time of the expiration of the
contract in April 2001, the Company continued to use employ­
ees referred by the Union.12 The individuals listed in Wills’
letter of June 22, 2001, were all employees covered by the col­
lective-bargaining agreement. McCarthy testified that while
these employees were not receiving any benefit contributions
working for the Company as subcontractors, he told the em­
ployees that the decision to work was up to them individually.
McCarthy also stated that he did not tell the employees not to
work for the Company as subcontractors because the union
employees were working on some big shows for the Company.
If he had pulled the union crew from the jobs, the Company
would have been unable to continue the shows. McCarthy
testified, “I wouldn’t do that.”
3. The Company’s evidence
a. The failure to make health and welfare contributions
Homer Wills presented no witnesses other than himself to
testify in this proceeding. Wills does not deny that he entered
into a collective-bargaining agreement with the Union on April
14, 2000, nor does he deny that he made no health and welfare
contributions for employees for any period of time after the
signing of the contract. Wills testified that while health and
welfare contributions were discussed with McCarthy prior to
signing the agreement, he was not aware that he would be re­
quired to make health and welfare contributions once he signed
the contract. He admits page five of the agreement directs the
reader to addendum A for health, welfare and annuity benefits.
Wills takes the position that while the contract referenced ad­
dendum A and B; the contract did not mandate that he had to
pay any benefits. Wills further argues that although he signed
the agreement on April 14, 2000, the rates for addendum A and
B were left for further negotiation. Additionally, Wills argues
that when he signed the contract in April, addenda A and B
were not even attached to the agreement. Wills maintains that
the Union created these documents and simply added them to
the back of the contract without his knowledge. At the hearing,
Wills asserted, “If the Board accepts that this addendum is a
true, original part of this contract, then there’s no question
whatsoever that I’m in violation of the contract, and owe all
this money.”
12 One of the individuals who worked for the Company after Wills
stopped paying health and welfare contributions, and after he converted
the employees to subcontractors, was McCarthy’s son, Mark McCarthy.
MADE 4 FILM, INC. 1157
As proof that the contract did not include addenda A and B,
Wills submitted a copy of a fax that he received from the Inter-
national in October 2000. Wills recalled that he contacted the
President of the Union and asked for a copy of the contract.
The contract was faxed to him, but did not include any attached
addenda.13 Wills also submitted a copy of a letter that he re­
ceived from the Union’s benefit fund in August 2000. In the
letter, the fund administrator explained the law requires the
fund to have complete copies of all contracts that mandate con­
tributions to any of the Union’s benefit funds. The administra­
tor requested that he submit a copy of the contract to the fund’s
new contract administrator. Wills interpreted the letter as evi­
dence that the fund had received contributions without a con-
tract. Wills explained that this letter was consistent with his
having submitted contributions for the period prior to April 14,
2000, when there was no contract. At hearing, Wills argued
that this letter is the Union’s admission that contributions made
in April were made without a contract in effect.
Wills acknowledged that he made the health and welfare
contributions for a period beginning in January and continuing
until the payroll period ending March 19, 2000. Wills was
asked on cross-examination why he made the contributions at a
rate of $20 a day for each employee. Wills explained that the
$20 rate was the one discussed with McCarthy in preparation
for signing the contract. Wills testified that he and McCarthy
came to an agreement for him to pay $20 and “they” would see
if Wills would be profitable at paying the wages that he was
paying and the $20 per shift for health and welfare contribu­
tions. Wills testified that he made the health and welfare pay­
ments as a voluntary gesture to see if he could do so and remain
profitable. Wills testified that he stopped making the health
and welfare contributions because he lost $80,000 on a job and
there was no way that he could continue to stay in business if
he paid the contributions. Wills further confirmed that if he
had received sufficient income to show a reasonable profit, he
would have continued to make the contributions. Wills admit­
ted the Company stopped making health and welfare contribu­
tions after April 2000 because it was not profitable for the
Company. Wills also maintained that his arrangement with
McCarthy had been a very amiable one and the Union had
wanted to do whatever possible to keep him working. Wills
described his arrangement with McCarthy by stating, “He told
me whatever rate that they could work out, for me to tell him
what rate I would be able to pay, wage and benefits.” Wills
further asserted that after the signing of the contract, McCarthy
13 In its brief, the Company attaches a two-page document dated Au-
gust 17, 2000, asserting that it was faxed with the April 14, 2000
Memorandum of Agreement. The document dated August 17, 2000,
contains a proposed amendment to the agreement because of the Com­
pany’s default in paying the negotiated wages, benefits, and dues de­
ductions. The proposed amendment provides for the Company’s pay­
ing all required wages and tendering all required benefit contributions
no later than three calendar days after the Friday of each workweek in
which employees perform any worked covered by the agreement. The
proposed amendment also provides for the Company’s obtaining an
acceptable security bond to cover the amount of any anticipated wages
or benefit contributions prior to the Company’s employing any bargain­
ing unit employees on any work covered by the agreement.
had even suggested that Wills lower what he was paying in
wages as a way to be able to pay the health and welfare pay-
ments.14 Wills recalled McCarthy’s suggesting that he might
be able to pay a lower wage scale because he paid very high
wages.15 Wills recalled McCarthy’s volunteering the fact that
the Union had negotiated contracts for a lot less wages than
what he was paying. McCarthy suggested that if Wills paid the
employees $2 less an hour, he would be able to cover the annui­
ties.
Following McCarthy’s suggestion, Wills went to his em­
ployees and asked them their choice on his paying wages or
paying the annuity. Wills recalled, “They all said we don’t care
about the annuities, we want our money now. It was their deci­
sion.” When Wills met with the employees, they told him that
they would rather have the wage scale remain the same and not
have the annuities if he were unable to pay both. Wills testified
that he had no work in June, July, and August and he had to
layoff all the employees. He added, “Basically, we became
really close at going bankrupt at that point.”
b. The failure to provided requested information
Wills admits that he never replied to the union counsel’s let­
ter of July 24, 2000. He testified that he had declined to re­
spond to the Union’s letter because “in reality I never signed an
agreement saying that I would pay those.”
c. Failure to pay remit dues deductions
On cross-examination, Counsel for the Union asked Wills if
he had also discussed deduction of union dues with the em­
ployees. Wills responded:
A. The dues deduction was never a question. That
was part of the contract,16 and that’s something that they
had no choice over. That was a Union rule, and that, hon­
estly, I deducted those from their, they didn’t have any
questions to not deduct them.
Q. What did you do with the dues deductions?
A. Actually, I paid their wages with them. I didn’t
have the money to pay the Union.
Wills confirmed that while dues were deducted, they were
never remitted to the Union and instead, remained in his check­
ing account. He used that checking account to pay the ex­
penses of the business, including the wages of the employees.
Wills admitted that he never told the employees that he was
doing so.
14 On rebuttal, McCarthy denied having any discussions with Wills
about his reducing the amount of the benefit contributions during the
term of the contract. He was not specifically asked about whether he
had any discussions about lowering the wage rate for the employees.
McCarthy testified that any discussions about changes in rates were
geared to the end of the contract and renegotiations for a new contract
period.
15 Wills did not deny that he usually paid wage rates above scale.
16 In later testimony, Wills explained that he considered dues deduc­
tion to be a part of the contract because it was not solely included in an
addendum.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. FACTUAL AND LEGAL CO NCLUSIONS
A. The Company’s Failure to Remit Health and
Welfare Contributions
General Counsel asserts that by admitting that it has failed to
remit contributions to the health and welfare and annuity funds
for its employees for the entire 1-year contract period, the Com­
pany is therefore in violation of Section 8(a)(1) and (5) of the
Act. Wills even agrees that if his testimony is not credited,
there is no question that he is in violation of the contract and he
owes all the money due.
Undeniably, Wills wanted to have an affiliation with the Un­
ion and to hold himself out as a union shop. He does not dis­
pute that he advertised himself as a union shop in the trade
publications and he testifies that as early as January 2000, he
operated as a union shop. At the hearing, he explained his frus­
tration in not getting a union contract as early as September
1999. Based upon the testimony of both Wills and McCarthy,
the Union approached Wills only after Wills’ outspoken inter­
est in the Union. Clearly, Wills wanted the Union contract as it
provided the opportunity to work on movies and features,
which were otherwise unavailable to him.
Wills’ relationship with the Union is a very unique one. He
sought out the Union, intent upon getting a union contract.
Even before he signed the contract, he represented himself as a
union shop in the trade publications. Based upon his testimony,
he discussed the terms of the contract, including a health and
welfare contribution rate within a range that he could pay.
Admittedly, in order to get the coverage and personal benefits
of the contract, he voluntarily paid the health and welfare con­
tributions for a portion of the first quarter of 2000. After sign­
ing the contract, he determined that his business was not mak­
ing sufficient profit for him to make any additional contribu­
tions for health and welfare and he stopped making contribu­
tions. Admittedly, if he had received the income to show a
reasonable profit, he would have continued to make health and
welfare contributions. He deducted union dues from wages
paid to employees because “that was a part of the contract.”
Some of the dues were remitted to the Union and other dues
were simply retained by the Company and used to pay em­
ployee wages and other business expenses. Despite the fact
that Wills was not making health and welfare contributions and
was “pocketing” part of the dues that he had deducted from
employee wages, he continued to hold himself out as a union
shop. He continued to employ individuals referred from the
Union, even including McCarthy’s son. He abandoned paying
any hourly wage rates and converted all the employees to sub-
contractors, paid by invoice for specific work performed.
Wills defends all of the above-described unilateral changes
by arguing that he signed the April 14, 2000 CBA without any
agreement on wages and health and welfare contributions. He
contends that he signed the contract without having any at­
tached addenda. Wills contends that the Union simply made up
the addenda and added them to the contract without his knowl­
edge. Even assuming that the addenda were not physically
attached to the contract on April 14, the language of the con-
tract clearly notes that wages as well as health and welfare are
covered in addenda to the contract. Wills admits that as presi­
dent of the company, he has entered into many different types
of agreements with various entities. It is incomprehensible that
even the most novice businessman would sign a contract com­
mitting payment for an unknown amount for a full calendar
year. Yet, this is what Wills is asking the Board to believe.
Wills argues that the health and welfare contribution rate was
left for further negotiations when he signed the contract on
April 14. He nevertheless makes voluntary contributions in the
amount of $20 per employee per day for the period of time
prior to the contract. Admittedly, he made the contributions at
this rate because this is the rate discussed with McCarthy prior
to signing the contract. McCarthy testified without contradic­
tion, that the $20 rate was a much lower rate than what is nor­
mally required in these kinds of contracts. Wills maintains that
wage and contribution rates were left for further negotiation
after the signing of the contract, however he does not explain
what remained for negotiation. The Union had already agreed
to a rate at less than half of $52 rate normally required for
commercial work. While Wills makes this assertion of antici­
pated further negotiation, he does not explain what was to have
happened if he couldn’t afford to pay the $20 rate. Wills de-
scribes the Union as flexible and willing to work with him on
the contract amounts.17 Was the Union so flexible that
McCarthy signed a contract with the expectation that Wills
could hold himself out as a union shop and pay whatever rate
he felt that he could afford? It is beyond belief that either Wills
or McCarthy as experienced businessmen would sign a contract
with virtually no agreement on these major points.
The Company argues that the Union’s October 20, 2000 fax
is evidence that the addenda were not a part of the April 14,
2000 agreement. In its untimely brief, the Company submits a
further attachment to the Union’s fax. While I do not consider
this document as additional evidence, I must point out that such
document does not enhance the Company’s position. On its
face, the August 17 document reiterates the Union’s position
that the Company has failed to abide by the terms of the April
14 agreement and proposes a means of curing the Company’s
default. The Company submitted nothing at hearing or in the
official record to reflect that the Company and the Union en­
tered into any bargaining to modify the agreement in relation to
this document or any other document.
It is without question that the Board has authority to interpret
collective-bargaining agreements in order to determine whether
unfair labor practices have been committed. NLRB v. C & C
Plywood Corp., 385 U.S. 421, 428–430 (1967). However,
Board precedent clearly prohibits the use of parol evidence to
vary the terms of unambiguous terms of collective-bargaining
agreements. See American Piles, Inc., 333 NLRB 1118 (2001),
NDK Corp., 278 NLRB 1035 (1986). As stated by the Ninth
Circuit, “Where contractual provisions are unambiguous, the
17 Wills asserted that McCarthy talked with him after the signing of
the contract about his paying less in wages as a means of covering the
health and welfare contributions. I do not find that this constitutes any
midcontract bargaining. McCarthy denies additional negotiation on
contract rates after the signing of the contract. Because it is undisputed
that Wills usually paid wages above scale, it is likely that McCarthy
may have suggested lowering the excess wages to cover the contractu­
ally obligated contribution amounts.
MADE 4 FILM, INC. 1159
NLRB need not consider extrinsic evidence. Parol evidence is
therefore not only unnecessary but irrelevant.” NLRB v. Elec­
tric Workers Local 11, 772 F.2d 571, 575 (9th Cir. 1985). In
this case, I find no basis to consider parol evidence to vary the
clear terms of the collective-bargaining agreement. Assuming
that Wills chose to sign a collective-bargaining agreement with
portions unattached, such an action does not render a document
ambiguous, requiring interpretation. The only thing that this is
ambiguous is why Wills would commit himself to an agreement
under the circumstances that he describes.
Although Wills asks that I consider parol evidence outside
the four corners of the agreement, he does not even submit the
best evidence that the circumstances were as he alleged. It is
undisputed that Wills’ secretary, Jannie Presley, attended each
of the bargaining meetings with McCarthy and Wills. She was
present on April 14, 2000, and signed as a witness to each of
their signatures. If Wills signed the agreement without any
addenda or if the agreement was signed with the parties’ inten­
tion to further negotiate the wages and health and welfare con­
tributions, Presley would have known. The fact that she was
not presented to corroborate the testimony of Wills leads me to
conclude that she would not have done so. In determining
whether an adverse inference may be drawn from a party’s
failure to call a potential witness, the Board looks to “whether
the witness may reasonably be assumed to be favorably dis­
posed to that party.” International Automated Machines, 285
NLRB 1122, 1123 (1987). I can only assume that as secretary
to Wills, Presley is more favorably disposed to the Company’s
interests than to the Union’s. The absence of corroboration of
Wills’ testimony significantly impacts upon his credibility. I
must conclude that Presley’s testimony regarding the negotia­
tions for, and signing of the collective-bargaining agreement,
would be adverse to the interests of the Company. Desert
Pines Golf Club, 334 NLRB 263 (2001).
Having found that the Company entered into a contract re­
quiring contributions to the health and welfare and annuity
funds, and based upon the undisputed facts that it has failed to
do so, I find the Company in violation of Section 8(a)(1) and
(5) of the Act. It is well established that Section 8(a)(5) and (1)
and 8(d) of the Act prohibit an employer that is a party to an
existing collective-bargaining agreement from modifying the
terms and conditions of employment established by that agree­
ment without obtaining the consent of the union. Kane Systems
Corp., 315 NLRB 355 (1994). Wills testified that he would
have continued to make the health and welfare contributions if
the Company’s profits would have allowed him to do so. I
have no doubt the Company’s financial status was a pivotal
factor in Wills’ decision to cease health and welfare contribu­
tions. “An employer’s claim that it is financially unable to pay
for contractually required benefits is not an adequate defense to
an allegation that an employer has unlawfully failed to abide by
provisions of a collective bargaining agreement.” Navigator
Communications Systems, 331 NLRB 1056 (2000); Zimmerman
Painting & Decoration, 302 NLRB 856, 857 (1991). Thus, the
Company’s rationale for ceasing any further health and welfare
contributions provides no defense to its unilateral modification
of the collective-bargaining agreement. Based upon the record
before me, I find the Company has violated Section 8(a)(1) and
(5) of the Act by its unilateral modification of the terms of the
collective-bargaining agreement and its failure to make health
and welfare contributions as provided by the April 14, 2000
agreement. See Eldorado, Inc., 335 NLRB 952 (2001); Isratex,
Inc., 316 NLRB 135 (1995).
B. The Company’s Failure to Provide Information
It is well settled that an employer has a statutory obligation
to provide, on request, relevant information the union needs for
the proper performance of its duties as a collective-bargaining
representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152
(1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
The standard for determining the relevance of the requested
information is a liberal one, and it is necessary only to show
that it would be of use to the union in carrying out its statutory
duties and responsibilities. Acme Industrial Co., supra at 437.
Admittedly, Wills did not respond to union counsel’s July
24, 2000 written request for information. Almost a year later,
Wills sent the Union a letter dated June 22, 2001, providing
some of the requested information. In his letter, Wills ex­
plained that after September 24, 2000, all labor was performed
by subcontractors and paid by invoice. He further explained
there were no timesheets or information on days (shifts)
worked, as the individuals were paid by the job. Pursuant to
subpoena issued by the General Counsel, just prior to the No­
vember 29, 2001 hearing, Wills produced a check register and
benefit contributions forms for pay periods ending April 2, 16,
30, and May 14, 2000. (GC Exhs. 12 and 13.) The contribu­
tion forms showed contributions due in the amount of $4430.
Wills admitted these documents were never provided to the
Union. Thus, it appears that while some of the information was
provided to the Union, it was not provided in a timely manner.
The Board has held that the delayed and untimely submission
of information does not fulfill the duty to bargain under the Act
or obviate the need for a remedy. Association of D.C. Liquor
Wholesalers, 300 NLRB 224, 229 (1990). In this case, the
Company does not deny that it unduly delayed in providing
information or that it failed to provide the full information as
requested. Accordingly, I find the Company’s response to the
Union’s request for relevant information is violative of Section
8(a)(1) and (5) of the Act. With respect to any information that
has now been provided to the Union, the remedy would be
limited to a cease-and-desist order. U. S. Postal Service, 332
NLRB 635 (2000).
C. The Company’s Failure to Remit Dues to the Union and
Other Unilateral Modifications of the Contract
The Company does not deny that while dues were deducted
pursuant to the April 14, 2000 collective-bargaining agreement,
only a portion of these dues were actually remitted to the Un­
ion. The remainder of the dues was kept by the Company to
pay employee wages and for other business expenses. The
original complaint includes no allegation involving this failure
to remit deducted dues. At no point in these proceedings has
the General Counsel requested to amend the complaint to in­
clude the Company’s failure to remit the union dues. During
the hearing, Wills also admitted that he met with employees
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and asked them whether they wanted him to pay wages or make
contributions to the benefits fund. While he mentions that the
union steward was present, there is no evidence that he pro­
vided any notice to the Union or gave the Union any opportu­
nity to bargain about the substance of the meeting. The Board
has consistently found that an employer violates Section 8(a)(1)
and (5) of the Act when it bypasses the Union and deals di­
rectly with employees in the unit about their wages and terms
and conditions of employment. See JPH Management, Inc.,
331 NLRB 1032 (2000); Harris-Teeter Super Markets, 310
NLRB 216 (1993). The Company also admits that it unilater­
ally changed the recognized bargaining unit to subcontractors
and changed the method of compensation from an hourly rate
to compensation for specific jobs performed. As the Board has
recently reiterated, “a unilateral change not only violates the
plain requirement that the parties bargain over ‘wages, hours,
and other terms and conditions,’ but also injures the process of
collective bargaining itself.” Priority One Services, 331 NLRB
1527 (2000), See also NLRB v. McClathy Newspapers, 964
F.2d 1153, 1162 (D.C. Cir. 1992).
The Board has previously held that the General Counsel may
add complaint allegations that would otherwise be barred from
litigation by Section 10(b) of the Act if the allegations are
closely related to allegations of a timely filed charge. Redd-I,
Inc., 290 NLRB 1115 (1988). The Board’s test for relatedness
was summarized in Nickles Bakery of Indiana, 296 NLRB 927,
928 (1989):
First the Board will look at whether the otherwise untimely al­
legations involve the same legal theory as the allegations in
the pending timely charge. Second, the Board will look at
whether the otherwise untimely allegations arise from the
same factual circumstances or sequence of events as the pend­
ing timely charge. Finally, the Board may look at whether a
respondent would raise similar defenses to the allegations.
In determining whether a respondent would raise the same or
similar defenses, consideration is given to whether a reasonable
respondent would have preserved similar evidence and pre-
pared a similar case in defending against the otherwise un­
timely allegations as it would in defending against the allega­
tions in the timely pending charge. Columbia Textile Service,
293 NLRB 1034 (1989). The Board has also typically shown
some leniency toward a pro se respondent’s efforts to comply
with the Board’s procedural rules. A.P.S. Production, 326
NLRB 1296, 1297 (1998). Although such leniency is normally
discussed in circumstances involving a respondent’s failure to
file a timely or adequate answer, it is reasonable that such leni­
ency would be extended to situations where the Government
may seek to broaden the scope of the complaint. In the instant
case, it is questionable that this pro se respondent has any ap­
preciation that he may have engaged in unlawful direct dealing
with employees or that his unilateral conversion of employees
to subcontractors falls within the scope of Section 8(a)(1) and
(5) of the Act. I cannot determine that in litigating his case, he
would have raised the same defenses. Accordingly, while the
General Counsel has not previously sought to amend the com­
plaint to include these additional potential violations, such an
amendment does not appear to meet the criteria of Nickles Bak­
ery, supra.
CONCLUSIONS OF LAW
1. The Company, Made 4 Film, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union has been a labor organization within the mean­
ing of Section 2(5) of the Act.
3. Since on or about April 14, 2000, the Union has been the
collective-bargaining representative of the Company’s employ­
ees in the following appropriate unit within the meaning of
Section 9 (a) of the Act:
All employees in the following classifications: Coordinator,
Foreman, Gang Boss, Model makers, Prop Maker-Set Con­
struction, Construction Drivers, utility Maintenance Techni­
cians, Buyer, Welder, Riggers, Paint Foreman, Plasterers,
Set Painters, Lead Scenic, Scenic Artist, Sign Paint­
ers/Writers, Standby Painters, Sculptors, and Fork-
Lift/Crane/Hi-Lift Operators.
4. By failing to pay to the Health and Welfare and Annuity
Funds for the amounts due for the period from April 14, 2000,
to April 14, 2001, the Company has violated Section 8(a)(1)
and (5) of the Act.
5. By delaying the furnishing of certain information, set
forth in the decision herein, and by failing and refusing to fur­
nish other information, requested by the Union, the Company
has violated Section 8 (a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act. In this regard, I shall recommend
that that the Company be ordered to reimburse the Health and
Welfare and Annuity Funds for the amounts that it failed to pay
for the period of time from April 14, 2000, to April 14, 200l.
The interest owing to the funds should be computed as set forth
in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). I shall also recommend that the Company be ordered to
make whole any employees for any losses or expenses they
incurred due to the Company’s unilateral cessation of payments
to the Health and Welfare and Annuity Funds. Stone Boat
Yard, 264 NLRB 981 (1982).
With respect to such information, which was ultimately, but
unlawfully furnished to the Union in an untimely manner, it is
recommended that the Company be ordered to cease and desist
from such conduct. With respect to such information not fur­
nished to the Union, it is recommended that the Company fur­
nish such information, upon request by the Union.
[Recommended Order omitted from publication.]