Tom Carpentry Construction Co.

National Labor Relations Board - Board Decisions

May 22, 1969

176 N.L.R.B. 124 (N.L.R.B. 1969)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tormod Langemyr d/b/a Tom Carpentry
Construction Co. and Tom Carpentry Construction
Company, Inc. and Local 964, United Brotherhood
of Carpenters and Joiners of America , AFL-CIO.
Case 2-CA-11355
May 22, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 23, 1968, Trial Examiner James T.
Barker , issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of
the General Counsel, and the entire record in this
case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with
the following modification.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondents,
Tormod Langemyr d/b/a Tom Carpentry
Construction Co. and Tom Carpentry Construction
Company, Inc., its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
.We adopt the Trial Examiner 's findings and recommendations as to the
violations of Sec . 8(a)(l) and (5) of the Act with one exception . The Trial
Examiner declined to recommend that Respondents make payment to the
Charging Party 's welfare , pension , vacation, and supplementary
unemployment benefit funds beyond the expiration date of the agreement.
Unlike the Trial Examiner , we find that the complaint encompasses the
postexpiration period and that the issues underlying the imposition of such
a reimbursement remedy were litigated . Moreover , we agree with the
General Counsel that Respondents are obligated to continue in effect
beyond the expiration date of the agreement certain conditions relating to
employees working conditions and to pay into the Charging Party's
welfare , pension , vacation , and supplemtary unemployment benefit funds
such sums as would have been paid into said funds from January 18, 1967,
until the parties either sign a new collective -bargaining agreement or reach
an impasse in their negotiations . Harold W. Hinson , d/b/a Hen House
Market No. 3, 175 NLRB No. 100.
Examiner's Recommended Order, as so modified.
1. Delete paragraph 2(b) and substitute the
following:
(b) Make contributions to the Union's welfare,
pension, vacation, and supplementary unemployment
benefit funds of such sums as would have been paid
into said funds from January 18, 1967, until the
parties either sign a new collective-bargaining
agreement or reach an impasse in their negotiations.
2. Delete the next to last indented paragraph of
the notice and substitute the following:
WE WILL. pay into the pension , welfare,
vacation, and supplementary wage benefit funds
of Local 964, such sums as would have been paid
into said funds from January 18, 1967, until we
either sign a new collective - bargaining agreement
or reach an impasse in our negotiations with
Local 964
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner: This matter was
heard in New York, New York, on June 10 and July 31,
1968. The complaint was issued on April 17, 1968,
pursuant to a charge filed on July 17, 1967, and a first
amended charge filed on March 19, 1968, by Local 964,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. The complaint alleges violations of
Section 8(a)(5) and (1) of the National Labor Relations
Act, hereinafter called the Act. The counsel for the
General Counsel and the Charging Party timely filed
briefs with me.
Upon consideration of the briefs of the parties, and the
record in this case,' and upon my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tom Carpentry Construction Company, Inc., was
formed as a New York corporation in 1966 for the
purpose of engaging in the building , contracting and
construction trade. On January 1, 1966, Tormod
Langemyr executed a certificate of incorporation, in the
capacity of incorporator, for the aforesaid corporation.
Prior to the formation of the corporation, and
commencing in the calendar year 1964, Tormod
Langemyr engaged in the building and construction trade.
The principal place of business of the individual
proprietorship and of the subsequently formed corporation
was at 58 N. William Street, Pearl River, New York.
'Counsel for Respondent filed an answer in this proceeding which, in
effect, denied all of the allegations of the complaint . At the hearing,
Respondent offered no defense and Tormod Langemyr , called as a witness
by the General Counsel, declined on constitutional grounds to answer
questions posed to him by counsel for the General Counsel. Respondent
declined to enter a defense to the instant proceedings and Tormod
Langemyr refused to testify because a criminal indictment had been
entered against Tormod Langemyr in the county court of Rockland
County, New York, assertedly involving the same facts as alleged in the
complaint.
176 NLRB No. 11
TOM CARPENTRY CONSTRUCTION CO.
In the calendar year 1965 a corporate enterprise in
which one Joseph Adler held a pecuniary interest engaged
Tormod Langemyr to perform carpentry subcontracting
work in the construction of residential homes. In the
calendar year 1965 dispersements in the amount of
$55,406, were made by the aforesaid corporation to an
entity known as Tom Carpentry.
During the calendar year 1966 Holland House and
Moncie Homes, corporations of which Joseph Adler was
president, made dispersements of $11,500 and $8,500,
respectively, to Tom Carpentry. Additionally, during
1966, an enterprise known as Patricia Ann Homes made
dispersements to Tom Carpentry for carpentry services in
the amount of between $35,000 and $40,000.
The gross annual revenue of the Adler owned
corporations during 1966 exceeded $500,000 and that of
Patricia Ann Homes approximated $750,000. The Adler
owned corporations during 1966 made purchases of stoves
for installation in newly constructed homes totalling
approximately $5,800. During the same period of time the
out-of-state purchases of stoves by Patricia Ann Homes
totaled approximately $3,500.
During the calendar year 1967 Guterl Construction
Corporation, a builder of residential homes whose gross
revenue in 1967 approximated $1,000,000, employed
Tormod Langemyr as a carpentry subcontractor and made
payments for these services of approximately $25,000,
some of which were made to Tom Carpentry Construction
Company and some to Tom Carpentry. During 1967,
Guterl Construction purchased stoves from Caloric, Inc.,
a Pennsylvania enterprise, totalling $4,615 and made
purchases of other supplies from an enterprise in the State
of New Jersey totalling approximately $1,000.
As the evidence reveals that in each of the three
calendar years preceding the issuance of the complaint
herein, the monetary value of the Respondent's services to
retail enterprises satisfying the Board's discretionary
jurisdictional standards' was substantial and de minimus, I
find that Respondent's operations affect commerce within
the meaning of the Act.'
Moreover, I find that it will effectuate the purposes of
the Act to assert jurisdiction in this proceeding by reason
of the evidence establishing that at the time of the alleged
violation of the Act on January 18, 1967, the Respondent
met the Board's jurisdictional standards.' This finding is
based on the concept that the Board, in the exercise of its
discretion, is free to assert jurisdiction when commerce
figures for the most recent annual or fiscal period are not
deemed to fully reflect current or actual impact of a
respondent's operation upon commerce.' In this respect it
is to be noted that the General Counsel was inhibited in
its investigation and prosecution of this case by the
constitutional plea of the individual and corporate
respondents, and by their consequent refusal to disclose
'Carolina Supplies and Cement Co.. 122 NLRB 88.
'See N.L.R.B. v. Reliance Fuel Oil Corp.. 371 U.S. 224, wherein the
Court recited its previous declarations that, "[[In passing the National
Labor Relations Act , Congress intended to and did vest in the Board the
fullest jurisdictional breadth constitutionally permissible under the
commerce clause."
'See Skmons Mailing Service 122 NLRB 81; Montex Drilling
Company. 122 NLRB 139; Acme Equipment Company. 102 NLRB 153,
161-162; The District Court of the Tenth Judicial District of the State of
Idaho, in and for the county of Nez Perce. 164 NLRB No. 16; see also
N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758 (C.A. 6).
'See The District Court of the Tenth Judicial District of the State of
Idaho, in and for the county of Nez Perce, supra,; Plant City Welding and
Tank Company, 123 NLRB 1146; Montex Drilling Company, supra.
125
business records and commerce figures, or to offer
testimony pertaining hereto. On the same ground,
Respondent undertook no rebuttal of the General
Counsel's commerce data which included General
Counsel's showing, despite attendent impedements, that in
1967 Respondent received $25,000 from one employer
alone for carpentry services rendered. Without derogating
from the right of Tormod Langemyr, as an individual, to
claim constitutional privileges, and although the evidence
does not warrant the application of the Tropicana
doctrine,' the evidence is such as to warrant the inference
that the single 1967 commerce figure adduced by the
General Counsel was not representative of the total
monetary value of the services performed by Respondent
in 1967. In the foregoing circumstances, and for the
reasons stated, I find that at all material times herein
Respondent was engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The credited testimony of William Sopko, considered
together with documents in evidence, reveals and
establishes that Local 964, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, hereinafter
called the Union, through its agents, negotiates
collective-bargaining contracts with employers containing
provisions relating to terms and conditions of employment
of employees in the carpentry and construction industry
represented by the Union. Moreover, the evidence
establishes that the Union exists, in part, for the purposes
specified in Section 2(5) of the Act and is, accordingly, a
labor organization within the meaning of the Act.
III. UNFAIR LABOR PRACTICES
A. The Issues
The substantive issues raised by the complaint and
answer are (1) whether Respondent became a party to a
collective-bargaining contract with the Union for a term
ending June 30, 1968, and (2) whether, in violation of
Section 8(a)(5) and (1) of the Act, Respondent failed and
refused to give effect to the union security and wage
provisions of the agreement, to appoint a job steward as
required by the agreement, and to make certain
contributions to the Union's welfare and related funds.
These questions raise issues relating to (1) the
application of the 6-month limitation provision of Section
10(b) of the Act, both procedurally and remedially; (2) the
effect, if any, of the Union's refusal to furnish Respondent
with a signed copy of the alleged collective-bargain ing
agreement and (3) the legal impact of the failure of
Respondent to post a performance bond demanded by the
Union, which Respondent contends, was a condition
precedent to the contract's validity.
B. Pertinent Facts
1. Background facts
a. The agreement as executed
On January 9, 1964, at which time Sidney Zenovic
served in the capacity of business representative of the
'Tropicana Products , Inc.. 122 NLRB 121.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Zenovic met with Tormod Langemyr and
presented Langemyr with unsigned copies of an agreement
between Contractors and Suppliers Association of
Rockland County, New York, and Local Union No. 964,
effective from July 1, 1963, to June 30, 1968.' He
discussed the agreements with Langemyr and presented
him with three unsigned form-contracts which he
requested Langemyr to study. He further requested
Langemyr to sign two of the contracts , retain one in his
possession and to return the two executed agreements to
the Union. In due course, Zenovic received through the
mails two copies of the agreement bearing a signature
purporting to be that of Tormod Langemyr. Zenovic
thereafter affixed his signature to the agreement. Zenovic
informed Langemyr that, an executed copy of the
agreement , containing Zenovic' s signature would not be
forwarded to Langemyr until he had secured a
performance bond. Neither Zenovic nor anyone under his
direction forwarded a signed copy of the agreement to
Langemyr.'
b. The terms of the agreement
The collective- bargaining agreement , which Tormod
Langemyr executed soon after commencing business in
1964,' by its terms was effective through June 30, 1968. It
contained a 7-day union security provision and a
maintenance of membership requirement ; a schedule of
wage rates ; provisions requiring employer contributions to
welfare, pension, vacation and supplementary
unemployment benefit funds ; and a clause insuring the
Union 's right to appoint a job steward to jobs being
performed under the terms of the agreement. Additionally,
'Consideration of events transpiring before January 18, 1967 , is for the
purpose of shedding light upon events transpiring within the 6-month
limitation period which may constitute unfair labor practices; and for the
further purpose of fashioning a remedy . N L.R.B. v. Lundy Manufacturing
Corp., 316 F.2d 921 (C.A. 2).
'At the in.. ant hearing the transcript of testimony of Sidney R. Zenovic,
former business representative of the Union , was offered in evidence by the
General Counsel and received by the Trial Examiner over the objection of
the Respondent . The transcript was properly authenticated and the General
Counsel represented on the record that Zenovic no longer resided in the
State of New York and was not at the time of the hearing present within
the State . This representation was not supported by current affidavit.
Although the Trial Examiner urged as the best course Zenovic 's personal
appearance as a witness , the General Counsel elected to rely upon the
transcript in support of his burden in the case . A careful analysis of the
transcript of the Zenovic testimony in the arbitration proceeding reveals
that at that hearing Zenovic was asked by counsel for the Union to
identify his signature on the agreement subsequently received in evidence in
this case . Thereafter, Mr. Molony , counsel for Tormod Langemyr in the
arbitration hearing , as well as in the instant proceeding , cross-examined
Zenovic with respect to his purported signature and that of Langemyr
contained on the document. Malony also, on cross-examination of Zenovic,
probed the circumstances relating to the January 9 meeting between
Zenovic and Langemyr . As I am convinced that the signature issue was
raised at the arbitration hearing and Langemyr 's attorney had full
opportunity to cross-examine Zenovie on the issue , and availed himself of
the right to cross-examine on this issue , the testimony of Zenovic as
memorialized in the transcript of the arbitration proceeding received in
evidence in the instant case may be relied upon in support of findings
herein made . See Rule 4517 New York Civil Practice Law and Rules;
Rule 43(a) Federal Rules of Civil Procedure ; 5 Wigmore. Evidence
Sections 1414, 1404 (3d ed . 1940). The representation of the counsel for
the General Counsel in open hearing as to the unavailability of Zenovic is
considered a sufficient showing of unavailability to meet the requirements
of Rule 4517 . Contrary to the Respondent , no affidavit of unavailability is
required under this rule, although , manifestly an affidavit would be a high
order of proof There is no suggestion that the unavailability of Zenovic
was procured by the General Counsel.
the agreement contained a provision requiring employers
who were parties to the agreement to post a surety bond
in the amount of $5,000 with the Union prior to the
commencement of any work.
c. Operations under the agreement
The evidence of record reveals that in 1964, subsequent
to executing the collective-bargaining agreement with the
Union, Langemyr employed carpenter employees who
were members of the Union. The evidence further reveals
that for the first 8 months of 1964 Langemyr made
contributions to the Union' s welfare , pension and vacation
funds. He thereafter ceased making contributions and
made none during the period January 18, 1967, to the
date of the hearing herein.10
d. Langemyr refuses to honor agreement
William Sopko credibly testified that in August 1964,
at which time he was serving in the dual capacity of
business representative of the Union and vice president of
the local, he was appointed by the president of the Union
and union trustees to make a survey of the home building
industry to confirm whether the home building contractors
were making required contributions to the welfare and
pension funds. Sopko further credibly testified that
incident to this assignment he spoke with Tormod
Langemyr in August 1964, and urged Langemyr to pay
the fringe benefits which he was obliged to pay and to
comply with the union security provisions . Langemyr
responded that he was having trouble with the Union at
the time and that after the trouble had been resolved he
was no longer going to "bother" with the Union."
2. The alleged unlawful conduct
Sopko further credibly testified that on June 20, 1967,
he again spoke with Langemyr and requested that
Langemyr place a union shop steward on the job pursuant
to the terms of the collective- bargain ng agreement.
Langemyr refused to do so observing that he did not have
any union men on the job. Additionally, during this
conversation Sopko requested Langemyr to employ union
carpenters and to make payments required of him
pursuant to the terms of the contract.
William Sopko further credibly testified that in April
1968, he again met with Langemyr at a work project and
requested Langemyr to give effect to the
collective-bargaining agreement until it had expired on
July 1, 1968 . In this connection , Sopko observed that if
Langemyr did not desire after July 1, to enter into a new
collective-bargaining agreement this was his prerogative.
Sopko insisted however, that until July 1, Langemyr was
bound by the agreement with the Union. Sopko further
requested that Langemyr place a shop steward on the job.
'This execution is established by a statement contained in the pretrial
affidavit of Tormod Langemyr, received in evidence, and by the
authenticated signature of Langemyr on a collective- bargaining agreement
between Contractors and Suppliers Association of Rockland County, New
York and Local Union No. 964 effective from July 1, 1963, to June 30,
1968.
"The credited testimony of William Sopko so indicates. January 18,
1967, commences the period cognizable under Sec. 10(b) of the Act.
"The testimony of William Sopko and an affidavit of Tormod
Langemyr, in evidence, revealed that at this point in time the Union had
placed a picket line on a job at which Langemyr's employees were
performing work.
TOM CARPENTRY CONSTRUCTION CO.
Langemyr was reticent and observed that he had no
contract with the Union.
William Sopko testified that Tormod Langemyr has
made no payments to the union welfare, pension and
vacation funds since September 1964, and has not honored
the Union's demand that he place a union steward on the
jobs on which Langemyr has performed services.
Conclusions
Initially, I find that, as principal owner of Tom
Carpentry Construction Company, Inc., and through his
authority - which the record reveals he possessed - to
engage the corporation in carpentry construction work
and to receive payments for these services on the part of
the corporation, Tormod Langemyr is the alter ego of the
corporation and is a proper party to this proceeding.'2
Additionally, I find that Tormod Langemyr gave his
assent to be bound by the terms of the
collective-bargaining agreement with the Union by signing
the agreement and by transmitting the signed instrument
in the mail to the Union. It was not specified as a
condition precedent to the agreement's effectiveness that
both parties execute the agreement . After Langemyr
signed the agreement he indicated his assent to be bound
by the agreement by giving effect to its terms." Thus, the
agreement was a valid one and Respondents incurred legal
liabilities as a result of its validity even though the Union
failed and refused, for a reason quite separate from the
question of the existence of a binding agreement, to
forward signed copies of the agreement to Respondent."
It is clear that the Union refused to furnish Langemyr
with a signed copy of the agreement because Langemyr
failed and refused to post a performance bond as provided
by the thirteenth article of the agreement . Quite clearly,
the performance bond requirement was a term of the
agreement , but it was not a condition precedent to the
effectiveness of the agreement. The Respondent may not
breach a contractual term and rely upon its own breach to
excuse it from the legal obligations of the agreement.
There is much in the tone and tenor of the proceeding
to suggest that in entering into the collective- bargaining
agreement with the Union, Langemyr did not fully
perceive the extent of his commitment. But the evidence is
persuasive that he freely executed and entered into an
agreement which obligated him to give effect to a union
security arrangement, pay a prescribed wage scale, make
certain welfare and fringe benefit contributions and to
permit the Union to designate a union steward on all jobs.
After the agreement became effective, Respondent abided
by its paramount terms for a time , but relations between
Respondent and the Union deteriorated and Langemyr
resolutely and with finality ceased giving effect to the
agreement.
The evidence establishes that on June 20, 1967, and
again in April 1968, within the 10(b) period, Langemyr
rejected a union request to abide by the terms of the
contract by employing union carpenters, permitting the
selection of a union steward and making welfare and
benefit payments as required by the contract. In rejecting
these requests, Langemyr left no room for doubt that he
"Ogle Protection Service . Inc., and James L. Ogle , 149 NLRB 545, 546
at fn. I.
"See Williston on Contracts , 3d ed., 90 A.
"Tow v . Miners Memorial Hospital Association . Inc.. 305 F .2d 73, 75;
Newburger v. American Surety Co.. 242 N.Y. 134 151 N.E. 155, 157; see
also John Wiley & Sons v . Livingston 376 U.S. 543. 550.
127
intended not to be bound by the agreement. He pointedly
remonstrated that he no longer had union carpenters on
the job.
This failure and refusal to give effect to and abide by
the terms of the collective-bargaining agreement during
the term of the agreement constitutes an unlawful
withdrawal of recognition of the exclusive
collective-bargaining representative and results in
unilateral modification of the agreement violative of
Section 8(aX5) of the Act."
No absolution from the Act's strictures is derived by
reason of any personal assessment Langemyr had of his
legal obligation, the binding nature of the agreement or its
ethical foundations; or by his personal notions of equity.
There exists statutory procedures for petitioning the Board
for relief if doubt arises as to the legal propriety of or
obligation to continue recognition of a bargaining agent.
However, self-help through unilateral abrogation of an
agreement is not justified. 16 "An employer's duty to
bargain under Section 8(a)(5) would be empty, indeed, if
after reaching agreement the employer could treat the
contract as a scrap of paper."" Nor is abrogation, in the
circumstances of this case, to be equated to a contract
breach susceptible of remedy solely through civil
litigation."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
"Hexton Furniture Company. III NLRB 342; Durdite Co., Inc.. 132
NLRB 425, 427; The Cresent Bed Company. Inc., 157 NLRB 296.
Jurisdiction for making this determination exists under Sec. 10 (b) of the
Act when nothing more is undertaken remedialy than an enforcement of
statutory rights arising from the unambiguous terms of the
collective-bargaining agreement . See N.L.R.B v. C & C Plywood Inc.. 385
U.S. 421 (1967).
Moreover , the aforesaid determination is not precluded by the
arbitration award of a sum of money due the union pension , welfare,
vacation and supplemental wage benefit funds by virtue of the Company's
contractual breach . The applicability of the doctrine of Spielberg
Manufacturing Company, 112 NLRB 1080, was not raised at the instant
hearing . While at the arbitration proceeding the Respondent contested the
contractual foundation of the arbitor' s jurisdiction , and while the
arbitrators decision appears to have rendered a determination with respect
to the existence of a binding contract , and to have made the aforesaid
monetary award , the arbitrator's decision did not reach the wage, job
steward and withdrawal of recognition issues of the instant proceeding. In
these circumstances , as the arbitrators decision did not purport to deal
with the unfair labor practices deriving from the latter three issues, the
Board, with respect to those issues , is not bound by the arbitration award.
See Raytheon Company. 140 NLRB 883; Monsanto Chemical Company,
130 NLRB 1097. Moreover, in light of the close interrelationship of those
issues to the Respondents' failure to comply with the contractual
provisions relating to pension, welfare, vacation and supplemental wage
benefit payments, which requires the Board to undertake close scrutiny of
the contractual provisions and the conduct of the Respondent pertaining
thereto , the Board, in the exercise of its discretion, may decline to give
conclusive effect to the arbitration award and may exercise its powers
under Sec. 10(b) of the Act.
"Ray Brooks v. N.L.R.B., 348 U.S. 96; Hexton Furniture Company,
supra
"N.L.R.B. v. M & M Oldsmobile. Inc.. 377 F.2d 712 (C.A. 2), enfg.
156 NLRB 903.
"See N.L.R. B. v. M & M Oldsmobile. Inc, supra. N.L.R.B. v. Gene
Hyde, d/b/a Hyde 's Supermarket , 399 F.2d 568 (C.A. 9), enfg. 149
NLRB 1252; W. P. Ihrie & Sons. Division of Sunshine Biscuits, Inc.. 165
NLRB No. 2.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices violative of Section 8(a)(5) and (1) of the
Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that during the term of their
collective-bargaining agreement with the Union, and
having found more specifically that at all times on and
after January 18, 1967, the Respondents have failed and
refused to give effect to the terms of the aforesaid
collective-bargaining agreement relating to recognition of
the Union as the exclusive collective-bargaining
representative of employees in an appropriate
collective-bargaining unit, the schedule of wage payments,
the designation of a job steward, the union security
provision, and the payments by Respondents of
contributions to the welfare, pension, vacation and
supplementary wage benefit funds, I shall recommend that
the Respondents pay into the Union's welfare, pension,
vacation and supplementary unemployment benefit funds
such sums as would have been paid into said funds from
January 17, 1967, until June 30, 1968." I shall further
recommend, that, upon request, Respondents bargain
collectively with the Union as the exclusive
collective-bargaining representative of Respondent's
employees in an appropriate collective-bargaining unit
and, if an understanding is reached, embody such
understanding in a signed agreement.
As it has herein been found that Tormod Langemyr
was the owner of the Respondent individual proprietorship
and the alter ego of the Respondent corporation, I shall
recommend that he individually, together with Respondent
individual proprietorship and Respondent corporation, be
responsible for compliance with all of the provisions of
this Recommended Order.30
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. On January 18, 1967, and at all material times
thereafter the Union was, and is now, the exclusive
representative of all carpenter construction employees of
Respondents, exclusive of supervisors as defined in the
Act, within the meaning of Section 9(a) and (b) of the
Act.
4. By failing and refusing, on and after January 18,
1967, to give effect to the provisions of a
collective-bargaining agreement between them and the
"See George E. Light Boat Storage . Inc, 153 NLRB 1209, 1210.
Offsets against these sums shall be allowed for payments , if any, made
pursuant to the arbitration award referred to herein . No obligation beyond
the June 30, 1968, expiration date of the agreement is here imposed, as the
complaint is not deemed to encompass the postexp iration period and the
issues underlying the imposition of such a reimbursement remedy were not
litigated . Cf. Industrial Union of Marine and Ship Building Workers of
America . AFL-CIO, v. N.L.R.B.. 320 F.2d 615, 620 (C.A. 3), enfg. in
pertinent part 136 NLRB 1500.
"See Ogle Protection Service. Inc.. and James L. Ogle, 149 NLRB 545.
Union, Respondents engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(6) of
the Act.
5. By withdrawing recognition of the Union, by failing
and refusing to give effect to the union-security provision
of the agreement, by failing and refusing to abide by the
wage scales provided in the agreement, by failing and
refusing to appoint a job steward and by failing and
refusing to make payments to the welfare, pension,
vacation and supplementary wage benefits funds of the
agreement the Respondents engaged in conduct violative
of Section 8(ax5) of the Act.
6. By the aforesaid unfair labor practices, the
Respondents have interfered with, restrained and coerced
their employees within the meaning of Section 8(a)(1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, I recommend
that the Respondents, its officers, agents, successors, and
assigns , and Tormod Langemyr, individually, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 964,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representative of
employees in an appropriate collective-bargaining unit, by
withdrawing its recognition of the Union; and by failing
and refusing to comply with the provisions of a
collective-bargaining agreement with the Union containing
a union security provision, and providing for the
placement of a job steward on construction jobs, the
payment by Respondents of a certain wage scale and
other payments in the form of contributions for welfare,
pension , vacation and supplementary wage benefits on
behalf of its employees.
(b) Interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 964,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representative of
employees in the appropriate collective-bargaining unit,
with respect to wages, rates of pay, hours of employment,
and other terms and conditions of employment, and if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Make contributions to the Union's welfare, pension,
vacation and supplementary unemployment benefit funds
of such sums, in the manner and for the period of time
specified in the portion of this Decision entitled the
Remedy.
(c) Post at its Pearl River, Rockland County, New
York, office and place of business and at all jobsites
within the territorial jurisdiction of the Union at which
Respondents are engaged in providing carpentry service,
copies of the notice attached hereto and marked
TOM CARPENTRY CONSTRUCTION CO.
"Appendix ."" Copies of said notice , to be furnished by
the Regional Director for Region 2, shall , after being duly
signed by a representative of Respondents , be posted by it
on receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 2 , copies
of the attached notice marked "Appendix" for posting by
Local 964, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, Local 964, willing, at its offices,
meeting halls and jobsites , and places where notices to
members are customarily posted . Copies of said notice to
be furnished by the Regional Director , shall, after being
duly signed by a representative of Respondents be
forthwith be returned to the Regional Director for said
posting.
(e) Notify the Regional Director for Region 2, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.22
"In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner " in the notice. If the Board 's Order
is enforced by a decree of the United States Court of Appeals , the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order."
"In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify the Regional Director for
Region 2, in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which both sides had the opportunity to
present their evidence , a Trial Examiner of the National
Labor Relations Board has found that we violated the law
by failing and refusing to give effect to and honor the
collective- bargaining agreement we had with Local 964,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, which agreement expired on June 30,
1968. The agreement required us to recognize Local 964
as the exclusive bargaining representative for all our
carpenters and the agreement had a union security
129
provision , allowed the Union to place a job steward on
our construction jobs and required us to make payments
into the union pension , welfare , vacation and
supplementary wage benefit funds. The agreement also
required us to maintain a certain wage scale.
The Trial Examiner ordered us to post this notice and
to agree that:
WE WILL NOT withdraw recognition of Local 964 as
the exclusive collective - bargaining representative of our
carpenters in the following appropriate
collective-bargaining unit.
All carpenter construction employees , exclusive of
supervisors , as defined in Section 2 (11) of the
National Labor Relations Act as amended.
WE WILL recognize Local 964, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, as
the bargaining representative of the carpenters in the
above unit , and upon request of the Local 964, bargain
collectively with it in good faith with respect to the
terms and conditions of employment of the carpenters
in the unit described , and will , if an understanding is
reached , embody such understanding in a signed
agreement.
WE WILL pay into the pension , welfare , vacation and
supplementary wage benefit funds of Local 964, such
sums as would have been paid into said funds from
January 18, 1967 , until June 30 , 1968, absent our
violation of the law.
WE WILL NOT interfere with , restrain , or coerce our
employees in the exercise of rights guaranteed them by
Section 7 of the Act.
All our employees have the right to self-organization to
form , join, or assist labor organizations , and to bargain
collectively through representatives of their own choosing.
TORMOD LANGEMYR
D/B/A TOM CARPENTRY
CONSTRUCTION CO.
(Employer)
Dated By
(Representative ) (Title)
Dated By
TOM CARPENTRY
CONSTRUCTION CO., INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
'Building , 36th Floor, 26 Federal Plaza New York, New
York 10007, Telephone 212-264-0340.