Twin City Garage Door Co.

National Labor Relations Board - Board Decisions

Oct 20, 1989

297 N.L.R.B. 119 (N.L.R.B. 1989)

• -TWIN CITY GARAGE DOOR CO

119
Nordpal Corporation d/b/a Twin City Garage Door
Co. and Twin City Carpenters District Council,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 18-CA-10237
October 20, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On May 11 1988, Admministrative Law Judge
Burton Litvack issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions, 2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nordpal
Corporation d/b/a Twin City Garage Door Co,
Minneapolis, Minnesota, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order
'The Respondent has excepted to some the judge's credibility findings
The Board's established policy is not to overrule an administrative law
judge,s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent argues, Inter aim, that It lawfully repudiated its 8(f)
bargaining relationship with the Union The judge rejected this defense,
finding that the Respondent was obligated 'to adhere to the terms and
conditions of employment set forth in the successive commercial con-
struction agreements, Including the existing 1986 through April 30, 1989
contract" We agree with the judge Where, as here, the Respondent
signed the 1978 independent agreement, as modified, binding Itself to the
Union-Associated General Contractors of Minnesota contract, covering
commercial work, as well as to successor agreements between these par-
ties, It could not repudiate its 8(f) relationship with the Union until It pro-
vided timely nonce of termination As the Respondent did not notify the
Union until November 2, 1987, in the middle of the 1986-1989 contract
term, that it was repudiating any agreement it had with the Union, the
Respondent was bound to the Union Associated General Contractors of
Minnesota contract until its April 30, 1989, expnation See San Antonio
Control Systems, 290 NLRB 786 (1988)
Robert V Johnson, Esq , for the General Counsel
Kevin C Berens, Esq and Joseph Dreesen, Esq (Berens
and Tate, P C ), of Omaha, Nebraska, for the Respond-
ent
Roger A Jensen, Esq (Peterson, Bell, Converse & Jensen),
of St Paul, Minnesota, for the Charging Party
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative LaW Judge Based
on ongmal and first amended unfair labor practice
charges filed, respectively, on September 28 and Novem-
ber 9, 1987, by the Twin City District Carpenters Dis-
trict Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (the District Council),
the Regional Director of Region 18 of the National
Labor Relations Board (the Board), issued a complaint in
the above-captioned matter on November 9, 1987, alleg-
ing that Nordpal Corporation d/b/a Twin City Garage
Door Co (Respondent) engaged in acts and conduct vio-
lative of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act) Respondent timely filed
an answer, denying the "commission of any unfair labor
practices The proceeding was scheduled for trial and
heard by me on January 19 and 20, 1988, in Minneapolis,
Minnesota At trial, all parties were afforded the oppor-
tunity to examine and cross-examine witnesses, offer evi-
dence, argue their respective legal positions, and file
postheanng briefs Said documents were filed by counsel
for the General Counsel and by counsel for Respondent
Accordingly, based on the entire record herein, includ-
ing careful consideration of the opposing briefs and my
observation of the testimonial demeanor of the several
witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Minnesota corporation, has an office
and place of business in Minneapolis, Minnesota, and is
engaged in the retail and nonretail sale, installation, and
servicing of overhead garage doors During the calendar
year ending December 31, 1986, in the normal course
and conduct of its aforementioned business operations,
Respondent derived gross revenues in excess of $1 mil-
lion and purchased and received goods and products
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of Minnesota Respondent admitted
that, at all times material herein, it has been an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
II LABOR ORGANIZATION
Respondent admitted that the District Council has
been, at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act
III THE ISSUES
.
The complaint alleges that Respondent engaged in
conduct violative of Section 8(a)(1) and (3) of the Act by
failing and refusing to pay contractual wages and fringe
benefits to those of its bargaining unit employees who
were not members of affiliated local unions of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (the Carpenters Union), and violative of Sec-
tion 8(a)(1) and (5) of the Act by failing to pay wages
297 NLRB No 13
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and benefits specified in collective bargaining agreements
to those of its bargaining unit employees who were not
members of the Carpenters Union by failing and refusing
to comply with the District Council s request that bar
gaining unit employees who refused to join the Carpen
ters Union after their grace period expired be discharged
as required by collective bargaining agreements and by
repudiating collective bargaining agreements with the
District Council In defense Respondent contends that
no collective bargaining agreement was ever formed be
tween itself and the Distnct Council that if any collec
tive bargaining agreement was formed said contract
covers only those employees who are engaged in the in
stallation of garage doors on commercial jobsites that
the District Council has waived all rights under any col
lective bargaining agreement and that Respondent has
properly repudiated an 8(f) collective bargaining rela
tionship with the District Council
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
The record establishes that Nordpal Corporation was
formed in 1968 by Ralph Nordick and Robert J Pa
lumbo with each a 50 percent shareholder that the cor
poration commenced doing business under the trade
name Overhead Door Company of the Twin Cities Com
mercial that the business consisted of selling and install
ing garage doors pursuant to a franchise agreement with
the Overhead Door Company and that the Company s
garage door installation work primarily involved new
commercial construction projects Nordick was the presi
dent of the corporation and operated the business on a
day to day basis while Palumbo was the secretary treas
urer and his job function was that of the Company s
commercial estimator By 1974 the Company had ex
panded its business to include new residential construc
tion projects however in that year according to Nor
dick Overhead Door Company cancelled our fran
chise to distribute that product As a result the corpo
ration changed its trade name to Twin City Overhead
Door Co while the Company obtained a new supplier
for its garage doors the nature of its business operations
remained basically the same—the sale of and mstalla
tion of overhead garage doors on new construction
projects In 1978 the corporation was again required to
change its trade name In October of that year Nordick
testified as a result of the settlement of a lawsuit mvolv
ing use of the word overhead Nordpal Corporation
commenced doing business as Twin City Garage Door
Co Respondent herein As previously although the cor
poration gradually began entirely assembling its own
product the nature of its business continued—and re
mains to date—to be the sale of and installation of over
head garage doors on commercial and residential con
struction projects Also in 1978, Palumbo retired and
Nordick purchased his share of the business Further in
1982 Nordick hired Stephen Donohue to be Respond
ent s general manager and in charge of its daily oper
ations
Since its inception in 1968 and continuing through at
least November 1987 Nordpal Corporation employed in
stallation employees to install its garage doors on new
commercial and residential construction projects in the
Minneapolis St Paul area with the complement of said
individuals ranging from approximately 10 to 18 While
admitting that some of the corporation s installers were
members of the Carpenters Union Nordick did not be
heve that the Company was an organized shop during
the period 1968 through 1978 However General Coun
sel s Exhibit 12 is an Agreement with the District
Council executed by Nordick ' on behalf of Overhead
Door Co Commercial on October 2 1968 which docu
ment bound the latter to abide by and employ installers
in accordance with the existing collective bargaining
agreements between the District Council and the Assoc'
ated General Contractors of Minnesota Minneapolis and
St Paul Builders Division (covering commercial con
struction) and between the District Council and the Min
neapolis Home Builders Association (covering residential
construction) 2 Carl Pierret, who worked for Nordpal
Corporation under its three different names from 1969
until July 1987 as an installer testified that at the time of
his hire not only was it common knowledge that the
company was a union shop but also that Ralph Nordick
informed him that everyone was required to join the
Carpenters Union Contradicting Pierret Nordick denied
ever requiring anyone join the union No one has
ever been required to join the union at our company 3
In any event Pierret joined the Carpenters Union (Local
1644) soon after being hired received wages at the Car
penters Union contractual scale and had fringe benefits
paid on his behalf by the Company to vanous trust
funds established pursuant to the applicable Carpenters
contract According to Pierret, while most of the install
ers were Carpenters members when he began working
for Nordpal Corporation as the years passed the
number of union members fluctuated as the company
didn t always require them to be members of the Car
penters 4 He testified further that by 1978 there were
approximately 12 to 14 installers employed by the Com
pany and that probably about half' were members
There is no record evidence that Nordpal Corporation
doing business as either Overhead Door Company of the
Twin Cities Commercial or Twin City Overhead Door
Co ever terminated the aforementioned Agreement
with the District Council Nevertheless in early 1978 in
the midst of a general organizing campaign targeted
against nonunion garage door installers and apparently of
the belief that Twin City Overhead Door Co was just
such a nonunion company a District Council business
I While not recalling that he had executed the document Nordick did
not disavow his signature thereon
2 Said document further binds the signatory to any renewal additions
modifications and extension thereof as to wages fringe benefits and
working conditions and all other provisions specified in said contracts
and states that this agreement shall remain in full force and effect until
such time as it is terminated in writing by your organization or the un
dersigned
3 No dick stated that he did not care if Installers joined the Carpenters
Union
4 Echoing Nordick Plerret testified that new employees who were
members of the Carpenters were permitted to retain their membership
and that the Company paid to them union scale wages and made fringe
benefit contnbutions on their behalf
TWIN CITY GARAGE DOOR CO

121
representative, Richard Prior, was instructed by the Dis-
trict Council to obtain a collective-bargaining agreement
from the above company 5 The record evidence is not
entirely clear as to the events of 10 years ago Thus,
Ralph Nordick testified that, shortly after a picketing in-
cident at a residential construction project on which
Twin City Overhead Door Co installers were working,
Harry Blue, the current executive business representa-
tive 6 for the District Council and a business representa-
tive in 1978, and another Carpenters official came to the
company office and spoke to Palumbo and him Denying
that what was discussed was in the nature of contract ne-
gotiations, Nordick stated that Blue did inquire as to
whether Nordick would execute a contract, and "we
told them we wouldn't I was quite strong about
that" Nordick argued that there was not a garage door
installation company in the Twin Cities which was en-
tirely union and that, if a company employed only Car-
penters Union members, it would not be competitive
doing residential construction work Nordick mentioned
that there were many nonunion companies without "any
overhead" doing those jobs and told Blue "don't bug us"
until the Union obtained contracts from them Also, Nor-
dick voiced a concern that the Union had no apprentice
program, causing companies to train employees on the
job While apparently unable to recall any 1978 discus-
sions, Harry Blue recalled a meeting with Nordick and
Palumbo sometime between 1970 and 1975 concerning
the fact that "an agreement was in effect, but they
were operating under another name" He added that the
specific cause of the meeting was that "we had run on a
nonunion person on the job" According to Blue, Nor-
dick and Palumbo responded that "they'd take care of
it
Nordick testified that, a short while after Blue met
with Palumbo and him, members of the Carpenters
began picketing at the Twin City Overhead Door Co
office and Richard Prior demanded that Palumbo, on
behalf of the company, execute an independent agree-
ment, recognizing the District Council as the exclusive
bargaining representative of the Company's installation
employees Prior recalled meeting with Palumbo on at
least two occasions and leaving a collective-bargaining
agreement at the company office According to Prior, he
and Palumbo discussed the scope of the contract, with
Prior saying it would cover both commercial and resi-
dential work However, "[Palumbo] refused to sign one
for both residential and commercial and there was a
lot of discussion going on back and forth between myself
and the secretary of the Council and the officials of
Twin City" Prior continued, testifying that Palumbo ul-
timately agreed to having employees performing com-
mercial installation work covered by a Carpenters Union
contract but that the "big hang-up" concerned employ-
ees performing residential installation work—Palumbo
"didn't want to have them union" Nordick, who lives in
6 According to Prior, who worked as a business agent for the District
Council, from 1972 until 1982, I have to presume when they send me
out there to sign a contract that [the company wasn't] organized I
didn't know at the time, if they had signed a contract previous
6 As such, Blue is directly responsible for the activities of all business
agents working for the District Council
Fargo, North Dakota, testified further that Palumbo tele-
phoned him, explained the nature of his conversations
with Prior, and said, "we could get them off our butt by
signing [the contract] " Nordick told Palumbo not to do
anything until they met and discussed the situation
According to Nordick, he met with Palumbo the next
week at the Twin City Overhead Door Co office and
discussed the contract with the latter, including to what
they could agree As a result, Palumbo executed General
Counsel's Exhibit 2, 7 the aforementioned "Independent
Agreement," and Nordick drafted a letter, dated May 2,
1978, which was to accompany the signed contract Said
letter, Respondent's Exhibit 2, reads as follows
Mr Dick Prior
Twin City Carpenters Council
842 Raymond Ave
St Paul, Minn 55114
Dear Mr Prior,
Enclosed is the agreement you people insist we
sign You explained to us that you have to have it
7 Dated May 2, 1978, the document reads, in part, as follows
INDEPENDENT AGREEMENT
The undersigned employer hereby recognizes the Twin City Car-
penters District Council as the exclusive bargaining representative of
all carpenters, millwrights and piledrivers employed by the employ-
er
Consideration for this agreement are the mutual promises of the
parties and their mutual purpose of establishing, maintaining and pro-
moting sound and harmonious relations
For all residential construction work, the employer hereby agrees
to be bound by all of the terms and provisions of the collective bar-
gaining agreement in effect between the Twin City Carpenters Dis-
trict Council and the Minneapolis Builders and St Paul Area Build-
ers Associations For all commercial construction work, the employ-
er hereby agrees to be bound by all of the terms and provisions of
the collective bargaining agreement in effect between the Twin City
Carpenters District Council and the Associated General Contractors
of Minnesota
The employer further agrees to be bound by any renewals, addi-
tions, modifications, extensions and subsequent agreements between
the Twin City Carpenters District Council and the Minneapolis
Builders and St Paul Area Builders Associations and the Associated
General Contractors of Minnesota entered into after expiration of the
agreements currently in effect, concerning all matters and provisions
specified in said contracts
The employer further agrees to be bound by all of the provisions
of said contracts with reference to fringe benefits including pension,
health and welfare, vacation, housing promotion and apprenticeship
training
The employer hereby acknowledges that he has received a copy
of this agreement and copies of the above mentioned agreements be-
tween the Twin City Carpenters District Council and the Minneapo-
lis Builders and St Paul Area Builders Associations and the Associ-
ated General Contractors of Minnesota
This agreement shall remain in full force and effect until such time
as It is terminated in writing by the Union or the undersigned em-
ployer pursuant to the termination provisions of the agreements be-
tween the Twin City Carpenters District Council and the Minneapo-
lis Builders and St Paul Area Builders Associations and the Associ-
ated General Contractors of Minnesota, then in effect
If this agreement is signed for and on behalf of a corporation, then
the person signing this agreement not only binds the corporation but
also binds himself individually to the full and faithful performance of
all of the terms and provisions of this agreement
while the described bargaining unit is not specific to Respondent,
there is no dispute that the only employees in the bargaining unit
herein are Respondent s installation employees
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on file or we can't employ union people Our un-
derstanding of our arrangement with you is
#1 We will continue to use union installers on
new commercial work
#2 Our service department does not work
new construction and do not have to be union
people Service department personnel can hang
new commercial doors with or without union
personel if it is a replacement job gotten thru
service department
#3 Our residential department will continue as
it is until you get a garage door installer training
put in place in your apprentice program We will
then plug our installers into the program at the
level they are on
We understand with this agreement you will not
picket our shop or bother our installers on the job
Nordick testified that the letter was drafted for Palum-
bo's signature, that he watched Palumbo sign it, and that
after Palumbo did so, Nordick placed the contract and
the letter in an envelope and put it on the secretary's
desk for mailing to the District Council During direct
examination, Respondent's current sole owner conceded
that the signed contract and the accompanying letter was
an offer—"our deal" for an agreement with the District
Council
While Nordick was unable to testify whether the Twin
City Overhead Door Co secretary in fact deposited the
envelope, containing the signed contract and the Pa-
lumbo letter, in the mail, the record reveals that at least,
General Counsel's Exhibit 2 was received by the District
Council Thus, business representative Prior identified his
signature on the bottom of the document, stating that he
executed the document "a couple of weeks" after the
date on which Palumbo did so and that he (Prior) signed
it at the office of the District Council "probably
before it was okayed by the Council" With regard to
the accompanying letter, Respondent's Exhibit 2, Prior
was unable to recall seeing it, 8 and Clayton Grimes, the
current executive secretary of the District Counci1, 9 tes-
tified that such a document does not exist in the District
Council's files However, there is record evidence that it,
indeed, was received by the latter Thus, Prior believed
that Palumbo's letter arrived at the District Council's
office "in the interim" during the "discussion going on
back and forth between myself and the secretary of the
Council at the time and the officials of Twin City" and
recalled discussion on the substance of the letter inas-
much as "if you can get a contract, you can get a con-
tract and later you can work on another end of it, in
other words, the commercial, or later you'll go after the
residential
Assuming that General Counsel's Exhibit 2 and Re-
spondent's Exhibit 2 were together received by the as-
8 Prior did state, however, that the contents of R Exh 2 correspond
to the content of the discussions he had with Palumbo
9 Grimes has held his position since 1982 and is responsible for main-
taining the District Council's records and files Prior to assuming his cur-
rent duties, Grimes was the District Council's executive business repre-
sentative from 1977 until 1982
tnct Council, what effect was given to the latter by the
District Council9 Initially, I note there is no record evi-
dence as to what action, if any, the District Council took
on the letter and that there is no reference to either the
Palumbo letter itself or the contents thereof on the face
of the "Independent Agreement," or to any other modifi-
cation of said document's terms Nevertheless, according
to Prior, "I'm sure there was a modification in this case"
In this regard, he testified, "If [an employer sends] some
kind of a letter or something like a cover letter you
know, saying that they will be bound by this, this and
this And if the District Council agreed to it or some-
thing, they'd talk about it and then they would say,
okay, we'll agree to this" Disputing Prior, executive sec-
retary Gnmes" was ailamant that there was, in fact, no
modification" with regard to the contract with Twin
City Overhead Door Co He testified that, in 1978, busi-
ness representatives and the executive secretary were au-
thorized to approve independent agreements, that, "as a
rule," these were not discussed by the District Council's
members, and that employers would have been told "no"
had any requested modifications from the exact terms of
an independent agreement On the latter point, he added
that "the only change I have ever seen on one of these
contracts is the deletion of [the] last paragraph" and that
other modifications are impossible due to the existence of
a "favorite nations" clause in the Associated General
Contractors' contract During cross-examination, Grimes
further insisted that his predecessor, Donald Jackman,
who was the executive secretary of the District Council
for a time period including 1978, also never permitted
modifications of the terms of Independent agreements
Thereupon, he was confronted with Respondent's Exhib-
it 5, a 1975 independent agreement between the District
Council and Industrial Door Co, Inc , on the face of
which Donald Jackson initialed acceptance of a modifi-
cation of the initial paragraph While not conceding that
Jackman likewise approved modifications to many agree-
ments, Grimes did concede not knowing what Jackman
may have approved with regard to each new contracting
employer Whatever action was taken by Jackman
and/or the District Council members regarding the con-
tract with Twin City Overhead Door Co, Nordick's tes-
timony was uncontroverted that, subsequently mailing
the envelope, allegedly containing both General Coun-
sel's Exhibit 2 and Respondent's Exhibit 2, to the District
Council, he heard nothing from the former regarding ac-
ceptance or rejection of the proposed agreement '2
10 Gratuitously commenting on the testimony and credibility of Prior,
Grimes averred that he • has many times been incorrect"
" With regard to that portion of the proposed modification of the
agreement removing service department employees from coverage under
the agreement, I note that service department work is nowhere defined in
either the Carpenters Union commercial or residential agreements Clay-
ton Grimes testified that it doesn t include It or exclude It But, I
would say the policy is to enforce our contract
12 association collective-bargaining agreements to which
Twin City Overhead Door Co would have become bound, if any, there
is no record evidence that the District Council gave copies of said con-
tract or contracts to Nordick, Palumbo, or any representative of the
Company Indeed, although there have been successor collective bargain-
ing agreements covering commercial and residential construction work
Continued
'TWIN CITY GARAGE DOOR CO 123
The record clearly establishes that, while possibly be-
coming bound to another collective-bargaining agree-
ment with the District Council, other than continuing its
past practice of paying contractual wages to and fnnge
benefits on behalf of its installers who were Carpenters
Union membefs, Nordpal Corporation, doing business as
Twin City Overhead Door Co and, since October 1978,
as Respondent, had no intention to comply—and has not
complied—with the terms of any association collective-
bargaining agreement to which it may have been bound
pursuant to the terms of the "Independent Agreement"
Thus, shown copies of the existing Associated General
Contractors and Twin Cities Residential Builders Labor
Association' 3 contracts, Stephen Donohue testified that,
other than paying the established wages and fringe bene-
fits, as set forth above, Respondent adhered to none of
the enumerated terms and conditions of employment and
has never done so while he has been employed as gener-
al manager With regard to contractual wages and fringe
benefits and union security," Nordick testified that, as
Nordpal Corporation under its two trade names had
done dunng the penod 1968 through May 1978, subse-
quent to May 2, 1978, Twin City Overhead Door Co
and, after October 1978, Respondent continued the prac-
tices of not requiring its installers to become members of
the Carpenters (Carl Pierret testified that, by said year,
"probably about half' were members and that, by 1987,
only two of Respondent's 12 to 14 installers were Car-
penters members' s), of paying its installers who were or
became members the existing contractual wages and
fringe benefits," and of paying neither the contractual
wages nor the fnnge benefits to its installers who were
not Carpenters members Corroboration for the testimo-
ny of Donohue and Nordick is found in General Coun-
sel's Exhibits 4 through 9, which are fringe benefit trust
fund report forms" submitted by Respondent from July
(the most recent commercial and residential agreements are effective
from 1986 until April 30, 1989), there is no evidence that Nordpal Corpo-
ration, doing business as Twin City Overhead Door Co or, subsequent to
October 1978, doing business as Respondent, has ever been given copies
by the District Council According to Stephen Donohue, what Respond-
ent has periodically received from the District Council are letters, similar
to General Counsel's Exhibit 3(b), detailing the effective contractual
wage and fringe benefit rates Other than said economic terms, there is
no record evidence, establishing that Respondent has ever been aware of
the contractual terms to which It allegedly is bound
13 Said Association is the successor to the Minneapolis Builders and St
Paul Builders Association for collective bargaining over residential con-
struction work
14 Both of the current commercial and residential construction Carpen-
ters Union collective-bargaining agreements contain construction Indus-
try-type union-security clauses, requiring membership in the Carpenters
Union on the eighth day of employment and a signatory contractor to
terminate any employee who fails to comply Such clauses have appar-
ently been in the Carpenters Minneapolis and St Paul contracts since, at
least, 1968
15 Pierret could recall no installer ever being terminated because he
had not become a member
16 R Exh 5 is a fringe benefits report form submitted by Twin City
Overhead Door Co on behalf of seven installers in January 1978 to the
contractual fringe benefit trust funds
Clayton Grimes testified that, to his knowledge, the trust funds do not
accept contributions from a nonsignatory contractor
', On a monthly basis, the trust funds administrative office sends to
each contracting employer a report form which is to be returned by the
employer The administrative office prints the employee names on the
form, based uopn the previous month's report form, and the employer is
1982 until October 1987 The number of installers for
whom reports were filed during this period decreased
from 6 to 2, while Respondent's complement, at all
times, was in excess of 10 installers Furthermore, the
record is replete with the testimony of Respondent's
nonunion installers, stating that they earned wages below
the contractual wage rate during 1987 and before
The events which precipitated the filing of the instant
unfair practice charges occurred during the spring and
summer of 1987, are not in serious dispute, and involve a
series of approximately six confrontations during which
business representatives of the District Council' s discov-
ered several of Respondent's non-Carpenters member-in-
stallers working on new commercial construction
projects in the Minneapolis-St Paul metropolitan
areas Is In this regard, Carl Pierret testified that,
throughout his tenure of employment by Nordpal Corpo-
ration under its three business names, the nonmember-in-
stallers performed the same garage door installation
work as done by those installers who were Carpenters
Union members According to four nonunion installers"
who worked for Respondent during the above time
period, on each occasion when approached, while work-
ing, by business representative Gerald Beedle, the latter
asked for the installer's name and to see his union card
When informed by the installer that he was not a
member, Beedle asked if the employee wanted to join If
given a negative response, Beedle's practice was to re-
quest that the installer leave the jobsite Thereupon, the
installer telephoned Respondent's office and either Dono-
hue or another official instructed him to leave the job-
site Further, notwithstanding that the installation work
may not have been completed by that employee, he
would be assigned, by Respondent, to work at another
jobsite the next day
Beedle testified that the District Council considered
the use of nonunion personnel by union-represented
garage door installation companies to have been a senous
problem in early 1987 Confirming the testimony of
Robin Bakken and Carl Pierret, Beedle recalled encoun-
tering them on a jobsite that spring Recognizing Pierret
as a union member, Beedle asked Bakken to identify him-
self and for his union membership After ascertaining
supposed to write in the names of any additional bargaining unit employ-
ees who have performed Carpenters' work during the month and for
whom fringe benefit payments should be made According to Clayton
Grimes, "the employer will pay contributions for every carpenter hours
worked,' regardless if the employee is or is not a member of the Carpen-
ters
While the trust fund report forms bear the name Twin City Overhead
Door Co, there is no dispute that Respondent continued making contri-
butions and submitting the forms after October 1978 Asked why the
trust funds administrative office never was notified of the name change,
Donohue said, "It really didn't make any difference to me, the name of
the company on the form I was paying on the benefits because of my
arrangement with those employees"
19 All but one of the incidents involve business representative Gerald
Beedle
19 Stephen Donohue testified that Respondent's usual practice was to
have only its member-installers work on jobsites on which only union
personnel were supposed to work and that he believed the projects, on
which the incidents occurred, were not of that type
29 Those who testified were Robin Bakken, James Udell ., Brian Rother,
and Mark Nordick Also, Carl Therret testified on this subject
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bakken s identity and his lack of membership Beedle
went through the procedures soliciting Bakken to
join The latter was hesitant and insisted upon telephon
mg Respondent s office He did so and was instructed to
leave the jobsite Later that day in view of the afore
mentioned industrywide problem and of a feeling there
was a probability that Bakken would merely be trans
ferred to another job, Beedle telephoned Respondent s
office and spoke to Donohue stating that we re having
problems with nonunion people on the jobs and not get
ting signed up and we wanted to get some kind of re
solve on it to get together on it And that when we
come on the job they pack their stuff and leave and we
know they are not leaving the company but we
can t find them at all times We know it s a hide and seek
game Donohue replied that they are not with us
they are shop people They are not working in the
field Despite Donohue s assurances Beedle remained
unconvinced his belief became tangible in July at
which time he confronted several of Respondent s install
ers, including Bakken on another jobsite One Terry
Ash was a Carpenters member but the remainder
(Bakken, Jim Udell Brian Rother and Ken LaVasseur)
were not members On this occasion the exchange be
tween Beedle and the installers became heated and
Beedle may have threatened" the employees to induce
them to leave the jobsite Upset Beedle telephoned Don
ohue telling him that he (Beedle) wanted to resolve the
problem of Respondent scheduling nonunion personnel
to perform work that comes under our contract
Beedle added that other District Council business repre
sentatives had also encountered nonunion personnel
working for Respondent at Twin Cities area jobsites and
that when propositioned to join, they would call
their dispatcher and were told to leave the job Repeat
mg his reply of their earlier conversation Donohue said
that the installers on this job were service people they
were only temporary and they were shop help Accord
mg to Beedle he thereupon warned Donohue that if
we couldn t get the situation straightened out he would
tell general contractors not to subcontract work to Re
spondent Donohue responded that Respondent would
go nonunion and that in any event, there was no con
tract between the parties 22 Beedle ended the conversa
tion stating that the District Council believed that a col
lective bargaining agreement existed as Respondent em
ployed union personnel and paid fringe benefits on
them 23 Thereupon Beedle reported the entire problem
to his supervisor Harry Blue
21 Beedle denies threatening to physically remove Respondent s em
ployees or saying anything about carpenters or union members but admits
saying he had heard from people who were unhappy about their pres
ence on the jobsite In contrast Brian Rother stated that Beedle had
threatened to have some people come over and remove us he reported
the incident to Donohue
22 In 1984 an attorney had advised Nordick and Donohue that no con
tract between Respondent and the District Council then existed Re
spondent failed to advise the Carpenters of its attorney s opinion
23 Donohue testified that he had two conversations with Beedle in July
with regard to discovering five nonunion Installers on a job Beedle said
that they had a problem and Donohue replied that he did not like
Beedle threatening his employees Beedle asked what he would do and
Donohue replied that he wasn t going to do anything at that time Two
days later Beedle again called him asked what Respondent would do
Blue, who at that time was attempting to resolve a
grievance against Respondent filed by Carl Pierret 24
consulted with Clayton Grimes and together, they
drafted and executed a letter dated August 26 1987 to
Respondent Said letter General Counsel s Exhibit 10
reads as follows
Steve Donahue
Twin City Garage Door Co
4609 85th Avenue N
Minneapolis Minnesota 55443
Mr Donahue
As per your labor agreement with the Twin City
Carpenters District Council you are in violation of
Article 5 Union Security
We hereby demand that Mark Nordick contact
Business Representative Bruce Scharmer at Carpen
ters Local #7 312 Central Avenue Minneapolis
Minnesota telephone 379 9505 to join the Carpen
ters Union or you must discharge him from your
employ
We further demand that Ron LaVasseur Brian
Rother James Udell and Gary Helber contact
Business Representative Jerry Beedle at Carpenters
Local #87 411 Main Street St Paul, Minnesota
telephone 224 5661 to join the Carpenters Union or
you must discharge him from your employ
These men are being referred to these specific
Locals because they were contacted by the above
mentioned Business Representatives at different job
sites
If you do not comply within three (3) working
days, we shall proceed to arbitration
Grimes testified that he spoke by telephone with Dono
hue subsequent to sending the letter and that during the
conversation they spoke about the status of the employ
ees named in the letter Steve explained to me [that]
these people work in the shop or in the office and that
this job was an emergency and they were sent out to
help complete the installation And I believe I mentioned
to him that we were requesting that they join the Car
penters Union and fringe funds be paid on them He
explained to me why they were there that he felt the job
was an emergency and that they were sent out there for
a short period of time Grimes added that he mentioned
that Respondent was in violation of their contract but
that Donohue did not respond There is no dispute that
in fact Respondent did not comply with the demands set
forth in the August 26 letter and Donohue later told
Gnmes that we are not doing anything different than
we have done before
and threatened to shut them down Upset Donohue telephoned Clayton
Grimes regarding Beedle s threats Gnmes replied that he would speak to
Beedle but that he also was aware of Respondent s utilization of non
union personnel Donohue replied that we were in a real bind on [that]
job we had gotten the matenal late and we threw a bunch of people at
the job He added that one person was an office worker and one was a
warehoube worker During cross examination Donohue admitted that
Bakken and Udell were regular full time Installers
24 Pierret had been terminated by Respondent allegedly for refusing to
work with a nonunion Installer on a jobsite
TWIN CITY GARAGE DOOR CO 125
The original unfair labor practice charge herein was
filed by the District Council on September 28, 1987 Ap-
proximately a month later, on or about October 20,
Grimes met with Nordick and Donohue at a restaurant
in St Paul The subject matter of their conversation was
settlement of the unfair labor practice litigation, with
Nordick speaking at length that the company had always
been a union employer and that it wished to remain a
union employer Nordick offered two possible resolu-
tions that Respondent would execute a new contract
with the Distnct Council or that Respondent would no
longer install its garage doors, instead subcontracting all
such work to union subcontractors 25 No agreements
were reached, and, on or about November 4, 1987, the
District Council received the following letter, executed
by Nordick and dated November 2
Twin City Carpenters District Council
842 Raymond Ave
St Paul, MN 55114
ATTN Mr Clayton Grimes
Dear Mr Grimes,
We understand you claim to have a labor agree-
ment with this company As you know, we do not
agree However, in the interest of certainty, this is
notice to you that this company hereby repudiates
any agreement between it and your union
According to Nordick, the letter was sent "because they
claimed we had an agreement and I think that's what this
all came out of"
As one aspect of its defenses to the unfair labor prac-
tice allegations, Respondent asserts that the District
Council, by its conduct herein, has waived its right to
file the instant unfair labor practice charges Initially as
to the allged failure to pay contractual fringe benefits on
behalf of non-Carpenters Union member-installers, Ste-
phen Donohue testified that, on two occasions, in 1984
and in 1986, an auditor employed by the Carpenters
fringe benefit trust funds conducted audits of Respond-
ent's payroll records in order to ascertain if the latter
had correctly reported the hours of work for the install-
ers on behalf of whom Respondent made payments to
the fringe benefit trust funds—the Carpenters Union
member-installers According to Donohue, the individual
who conducted the audits only asked for the payroll
records for those individuals and examined the records
of none of the nonunion installers During cross-examina-
tion, Donohue admitted never informing the auditor that
Respondent had other employees who performed the
identical work and whose names did not appear on the
report forms With regard to Respondent's failure to en-
force the union-security clauses of the prior and existing
association collective-bargaining agreements, Respondent
contends that, since 1978, business representatives of the
District Council have, on numerous occasions, found Re-
25 Respondent seems to have adopted the latter course of conduct
Thus, the Installers, who testified, all stated that they have severed their
employment relationship with Respondent, have joined the Carpenters,
and, since October or November 1987, have been performing installation
work for Respondent on a subcontract basis
spondent's nonunion installers working on new commer-
cial construction jobsites and that, other than demanding
that said individuals leave the jobsite, the business repre-
sentatives have never requested that Respondent adhere
to the terms of any applicable union-security clause as to
said employees 26 Thus, Nordick testified that business
representatives of the District Council have inquired
whether Respondent's nonunion installers have union
cards on jobsites "off and on every year back to
1978" and that "they usually just send the guy home and
we probably send a union guy back to finish the job "27
The only specific evidence of such card checks on job-
sites during the penod 1978 through January 1987 was
from Carl Pierret Asked how often Carpenters business
representatives visited jobsites on which he was working
during those years, he replied that "it would vary, but I
suppose twice a month" Asked if, on those occasions
Respondent's nonunion installers were approached, Pier-
ret said, "It didn't happen often then, but it did" He
added that, as a result of these confrontations, the non-
union personnel ..left the jobsites With regard to the time
period 1983 through January 1987, Pierret recalled busi-
ness representatives visited projects on which he worked
approximately twice a month, but he normally worked
alone during this time period He added that he could
not recall any nonunion installer having been terminated
by Respondent after being confronted by a Carpenters
business agent on a construction project Finally, Pierret
testified that the Carpenters fined him in 1984 "because I
was working with a nonunion person" and that, at
his tnal, he commented to Gerald Beedle "that
would be nice if the guy I was caught with would join
the union" Pierret believed that the employee eventually
quit without having joined
26 In this regard, while unaware of what the District Council's business
representatives have done, Grimes admitted that 'I have never sent such
a letter like [G C Exh 101 before" As to the practice of the District
Council business representatives after having discovered a signatory con-
tractor utilizing nonunion personnel, Grimes was somewhat contradicto-
ry Thus, asked if the business representative would send a letter demand-
ing compliance with the contractual union-security clause, Grimes replied
"In the normal course of business, one of the business agents probably
would have" Later, he explained that in Instances involving business
agents finding Respondent's nonunion personnel on jobsites, 'the business
agent calls the company and requests that the man join, the company
usually tells the man to leave the job and that is usually the end of it"
Gerald Beedle corroborated Grimes on this point He testified that, in
regard to a 1984 incident during which he discovered Carl Pierret work-
ing with a nonunion installer on a new commercial construction jobsite
and which eventually resulted in the levying of an internal union fine
against Pierret, he solicited the nonunion worker to join the Carpenters
Thereupon, the individual telephoned Respondent s office and reported
back to Beedle that he had been Instructed to leave the project Beedle
then telephoned to Respondent, spoke to the "dispatcher" and was told
that the worker was "only temporary" Inasmuch as the employee
t seem to be an experienced person,' Beedle felt It unnecessary to
invoke the union-security clause
27 Nordick insisted that rather than Respondent, it is the District
Council business representative who "chases" the employee off a project
or orders Respondent to do so Donohue contradicted Nordick on this
point, testifying that whenever a Carpenters business agent finds a non-
union installer on a jobsite, Donohue's practice is to talk to the employee,
"determine the situation that the job was in and normally tell him to
leave the premises Donohue added that such jobsite confrontations
have occurred on a regular basis from 1983 through 1987
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B Analysts
At the outset, the record is manifestly certain as to
three points First, no matter under which trade name it
has operated during the 20 years of its existence, there
has been—and continues to be—one employer herein
Thus, whether doing business as Overhead Door Compa-
ny of the Twin Cities Commercial, as Twin City Over-
head Door Co, or as Twin City Garage Door Co,
Nordpal Corporation has always been the sole corporate
entity involved Further, Ralph Nordick has been either
the 50 percent or only shareholder in the corporation
and was in I968—and remains—its president and in over-
all charge of the corporation's business operations More-
over, while the corporation's trade name has been twice
changed, such has resulted from legal difficulties and the
essential character of the business has remained un-
changed since 1968—the sale of and installation of over-
head garage doors on new commercial and residential
construction projects in the Minneapolis and St Paul
metropolitan areas Accordingly, I find that Respondent,
at all times material herein, has been—and is—the em-
ployer herein Next, there exists no dispute that, since at
least 1978 and continuing through October 1987, without
offering the District Council an opportunity to bargain,
Respondent has failed to comply with the union-security
provisions of the successive collective-bargaining agree-
ments between the District Council and the Associated
General Contractors and between the District Council
and the Twin Cities Residential Builders Labor Associa-
tion, that, during said time period, without affording the
District Council an opportunity to bargain, Respondent
has failed to pay to those of its installer-employees who
are not members of the Carpenters the wages and fringe
benefits established by the aforementioned collective-bar-
gaining agreements, and that, on or about November 2,
1987, Respondent repudiated "any" collective-bargaining
agreement between itself and the District Council Based
on Respondent's admissions in these regards, I conclude
that it, in fact, engaged in the above-described acts and
conduct The final indisputable point involves the atti-
tude of the respective parties and is quite disturbing
given the importance of collective bargaining That is,
not only did Respondent fail to comply with its agree-
ments with the District Council in the above manner but
also it admittedly had no intent of ever complying with
any term and conditions of employment of said agree-
ments—seemingly entering into these solely for the sake
of countenance and to permit it to work on those jobsites
in the Minneapolis-St Paul municipal areas on which
only union-affiliated employees could work On the
other hand, despite Respondent's blatant—and hardly
concealed—noncompliance, the District Council man-
aged, for approximately 20 years, to act in virtual igno-
rance of the former's perfidy, failing to follow up obvi-
ous evidence of contractual breach, and not adhering to
its own standard procedures 28
28 As to this, I note that not until 1987 did agents of the District Coun-
cil bother to follow their usual practice of sending a letter to Respondent,
demanding compliance with the contractual union security provision
This is especially bothersome, given Carl Pierret's defense at his 1984 fine
The complaint alleges that, by engaging in the above
conduct since March 1987, Respondent violated Section
8(a)(1), (3), and (5) of the Act As its initial defense to
these allegations, Respondent contends that no contract
was consummated 29 between it and the District Council
in 1978 and that, therefore, its 1987 conduct was not un-
lawful inasmuch as no bargaining relationship existed be-
tween the parties Further, counsel argues, if any agree-
ment existed between the District Council and Respond-
ent, it pertained only to new commercial construction
work As a second defense, Respondent's counsel points
to the District Council's inaction in enforcing its agree-
ment since 1978, asserting that such constitutes a waiver
of whatever contractual rights the District Council pos-
sessed since 1978 Finally, Respondent argues that if a
collective-bargaining relationship existed at any time ma-
terial herein, such was governed by the principles of
Section 8(f) of the Act and was lawfully repudiated by
Respondent With regard to the matter of the formation
of a contract between the District Council and Respond-
ent in 1978, I note initially that, despite Ralph Nordick's
asserted lack of recall, a collective-bargaining relation-
ship between the parties actually commenced 10 years
earlier, in 1968, when Nordick executed, on Respond-
ent's behalf, a document, pursuant to which it agreed to
employ carpenters (installers) in accordance with existing
multiemployer contracts to which the District Council
was a party and became bound to any renewals, exten-
sions, or modifications of said agreements, and that there
exists no record evidence that either party has given the
required written notice to the other of its intent to termi-
nate the 1968 agreement Nevertheless, acting as if there
existed no ongoing contractual relationship, 30 the Dis-
trict Council, as part of a campaign to organize the non-
union garage door installation companies in the area, as-
signed business representative Richard Prior to the task
of obtaining an executed independent agreement from
Respondent Thereupon, after picketing outside the lat-
ter's office facility, Prior presented such an agreement to
Respondent's secretary-treasurer, Robert Palumbo
As to what thereafter transpired, we have, on one
hand, only the testimony of the District Council's
present executive secretary, Clayton Grimes, who, I be-
lieve, exhibited scant, if any, knowledge as to what oc-
curred between the parties in 1978 and whose testimony
as to the District Council's past practice regarding con-
tractual modifications, as set forth above, seemed wholly
uninformed Accordingly, I shall not rely on his testimo-
ny concerning the formation of any contract by the par-
proceeding that the District Council was making no effort to have Re-
spondent's nonmember-Installers join the Carpenters
28 There are two aspects to this defense—that the District Council
never accepted Ralph Norchck s counteroffer and that the parties never
reached a meeting of the minds on the contract s terms
38 The only conceivable source of confusion discernible from the
record, which may have caused the District Council to act as It did, was
Respondent s 1974 name change However, based on the testimony of
Harry Blue that he was aware of the name change in 1975 and the sub-
mission of a January 1978 trust fund statement, naming as the contracting
party, Twin City Overhead Door Co, the District Council seemingly
considered Respondent, under this new name, as a signatory contractor
Therefore, the necessity for Prior to seek a new contract from Respond
ent remains unexplained
TWIN CITY GARAGE DOOR CO 127
ties in 1978 On the other hand, Respondent proffered
two witnesses, Ralph Nordick and Richard Prior, who
were involved in whatever was transacted between the
parties in 1978 Prior impressed me as being a candid and
straightforward witness, one who holds no pecuniary in-
terest in the result of this proceeding I credit and rely
on his testimony as to the circumstances surrounding Re-
spondent's contract negotiations that year In contrast,
Ralph Nordick's testimonial demeanor, for the most part,
was that of a disingenuous witness However, his testi-
mony regarding the execution of General Counsel's Ex-
hibit 2 and the submission of Respondent's Exhibit 2 to
the District Council is corroborated, in significant part,
by Prior, therefore I credit and rely on those corroborat-
ed aspects of Nordick's testimony Based upon the fore-
going credibility resolutions, I find that, in the spring of
1978, nonunion garage door installation companies were
a pnmary source of competition for Respondent, particu-
larly with regard to residential construction work, and
that, when Prior presented an independent agreement to
Palumbo, the latter argued that Respondent would not
agree to sign unless contractual coverage was limited to
new commercial construction work and was subsequent-
ly advised by Nordick to do nothing until they discussed
the matter
f •
Placing what I believe next occurred in a legal con-
text, under the well-settled tenets of contract law, an ex-
pression of acceptance of an offer which vanes its terms
is a counteroffer Such does not constitute an acceptance
of a contract and must, in turn, be accepted uncondition-
ally and according to its precise terms by the offer or for
a contract to be consummated A Corbin, Corbin On
Contracts, § 82 at 130-131 (1952), Steelworkers v O'Neal
Steel, 321 F Supp 235 (S Dist Alabama 1969), Oregon
Independent Grocers Assn v Meat Cutters Local 324, 236
F Supp 825 (D Oregon 1964), Philadelphia Transporta-
tion Co v Transport Workers Union, 31 LRRM 2504
(1953) Of course, while the Board traditionally observes
that the "technical rules of contract law do not necessar-
ily control the making of collective-bargaining agree-
ments," it will, on occasion, utilize said principles if nec-
essary to the resolution of a particular case Ben Franklin
National Bank, 278 NLRB 986 fn 3 (1986), Big John
Food King, 171 NLRB 1491 (1968) Assuming arguendo
the applicability of the rules of offer and acceptance to
the instant matter, given the reservations of Palumbo and
Nordick, I do not believe Respondent's intent was ever
to accept the District Council's offer and merely execute
the proffered short-form contract Rather,' I find that, in-
asmuch as Prior testified that the contents of the letter
constituted the subject matter of the back-and-forth dis-
cussions between the District Council and Respondent
and that he believed such a letter was received and con-
sidered by the District Council, Nordick should be cred-
ited that Respondent's Exhibit 2 was drafted by him and,
along with the executed "Independent Agreement,"
placed, by him, in an envelope which was addressed to
the District Counci1 3 ' and that, together, the two docu-
31 While there is no evidence that the envelope, which contained both
documents, was deposited in the mail, given the fact that the "Independ-
ent Agreement" was received by the District Council, I am convinced—
ments were intended as—and constituted—Respondent's
counteroffer—"our deal"—to the former Further, con-
trary to Respondent's primary contention that such was
never accepted by the District Counci1 32 given Prior's
recollection, on which I rely, that "there was a modifica-
tion in this case," I find that the District Council accept-
ed33 Respondent's counteroffer and that, as the source
for said modification could only have been the contents
of Respondent's Exhibit 2, said acceptance must have
conformed to the terms of the counteroffer, the only sig-
nificant one of which was that Respondent's installers
would not be covered by the terms of the existing multi-
employer residential construction agreement 34 Counsel
for the General Counsel argues that I should not have
received the Palumbo letter as evidence and that, as
there is no reference to it on the face of General Coun-
sel's Exhibit 2, I should not construe it as limiting Re-
spondent's obligations under the "Independent Agree-
ment" Contrary to counsel, based upon my credibility
resolutions and the record as a whole, I find—and am
convinced—that the Palumbo letter, Respondent's Exhib-
it 2, rather than modifying another agreement, was in-
tended to be "an integral and essential part of the labor
and find—that the Palumbo letter arrived at the same time in the same
envelope
32 In so arguing, counsel for Respondent correctly cites the testimony
of Clayton Grimes that employers who desire modifications in the Inde-
pendent agreement would be told no, and that it was not the policy of
the Distnct Council to give modifications However, Grimes was not in-
volved in any decisions reached with regard to Respondent's contract in
1978, was unaware that his predecessor Jackman had approved modifica-
tions such as in R Exh 5, and conceded being unaware of other such
modifications Essentially, then, reiterating my finding above, Grimes
testimony regarding the District Council's policy on contract modifica-
tions in 1978 is of no value
33 While I note that Respondent heard nothing from the District Coun-
cil regarding acceptance or rejection of what I perceive to have been its
counteroffer, a labor organization's acceptance can be Inferred from its
conduct following the making of an offer or counteroffer Capitol-Husting
Co v NLRB, 671 F 2d 237 (7th Cif 1982) Herein, I note that the con-
tractual fringe benefit trust funds continued to accept payments from Re-
spondent Absent a collective-bargaining agreement, an employer is not
obligated to make such payments (Operating Engineers Pension Trust v
Gilliam, 737 F 2d 1501, 1503 (9th Cm 1984), Carpenters Southern Califor-
nia Administrative Corp v Russell, 726 F 2d 1410 (9th Cm 1984)), and,
according to Grimes, only signatory contractors are required to do so
Further, to the limited extent such was done herein, business representa-
tives did contact Respondent with regard to the employment of nonunion
employees when such individuals were discovered on construction
projects Finally, the fact that Prior did not subsequently contact Re-
spondent, in my view, is significant to the point,of contract acceptance,
for he originally solicited a collective-bargaining agreement Clearly, if
the District Council were dissatisfied with Respondent s stated conditions
or did not consider an agreement to have been consummated, Prior
would have contacted Palumbo or Nordick While perhaps a stated ac-
ceptance would have been the proper course or action, the lack of such,
I believe, is not fatal to the existence of an agreement in these circum-
stances
34 Analysis of R Exh 2 discloses that the only actual modification re
quested concerns the applicability of the residential construction multiem
ployer contract While Respondent also sought to exclude its service
people from coverage, M fact, such work is,nowhere defined in either the
commercial or residential agreements
Pertinent to my conclusion that the District Council accepted Re-
spondent s counterproposal is Richard Prior s observation that the Dis-
trict Council would do what was necessary to achieve a contract— 'If
you can get a contract, you can get a contract and later you can work on
another end of it" Prior believed such was the District Council's position
as to Respondent, and I so find
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement between the parties" Philadelphia Transporta-
tion Go, supra at 2505, Oregon Independent Grocers Assn,
supra Further, it was identified by the individual (Pa-
lumbo) who drafted and placed the letter (along with the
signed "Independent Agreement') in an envelope, ad-
dressed to the District Council Accordingly, I find that
a successor agreement, to their 1968 contract," was con-
summated by the District Council and Respondent in
1978, one which bound Respondent only to the terms of
the existing Associated General Contractors' collective-
bargaining agreement covering new commercial con-
struction work and modifications, extensions, and renew-
als thereof 36
Turning to Respondent's second defense to the instant
allegations, that the District Council, by its conduct
herein, has waived its rights under the 1978 agreement, I
reiterate my view that the latter arguably acted irrespon-
sibly as to enforcing its collective-bargaining agreements
with Respondent Indeed, it seems incredible that the
District Council' undertook an effort to fine Carl Pierret
for working with a nonmember installer on a jobsite but
ignored his entreaties that it require the nonmember em-
ployee to join the Carpenters Union Surely such was
hint that Respondent might not be honoring its contrac-
tual commitments Nevertheless, the standard for waiver
in Section 8(a)(1) and (5) of the Act bargaining cases is a
rather stringent one Thus, "national labor policy disfa-
vors waivers of statutory rights by labor organizations
and a labor organization's intention to waive a right
must be clear before a claim of waiver can succeed"
Chesapeake & Potomac Telephone Co v NLRB, 687 F 2d
633, 634 (2d Cir 1982) As also stated by the Board, "the
burden [of proof] is on the party asserting waiver and
such a waiver must be shown to be clear and unmis-
takable" Pertec Computer Corp, 284 NLRB 810 fn 2
(1987) There is no question that an employer may not
unilaterally change employees' terms and conditions of
employment without first affording said employees' bar-
gaining representative the opportunity to bargain over
said changes NLRB v Katz, 369 U S 736 (1961) Coun-
sel for Respondent asserted in his postheanng brief that
the District Council has waived its right to bargain as it
was well aware, since 1978, that the Company had not
been adhering to its supposed obligations under the par-
35 Noting that the 1968 contract was never terminated pursuant to its
terms, I find that, by picketing Respondent and soliciting It to sign an-
other independent agreement in 1978, the District Council effectively
gave notice to Respondent that it desired the 1968 contract be terminat-
ed
36 Respondent argues that no true contract could have been consum-
mated herein as there was no "meeting of the minds" by the parties In
support, counsel cites two decisions—Caporale v Mar Les Inc , 656 F 2d
242 (7th Cm 1981) and Giardono v Jones, Case No 84 C 20026 (N Dist
Illinois 1987) While I agree that said decisions are similar to the instant
matter, both differ in one significant aspect Unlike the contractors in Ca-
porale and Giardono, Respondent did not merely—or unwittingly—exe-
cute a memorandum agreement, not fully cognizant of its terms and un-
aware of the consequences Rather, crediting the testimony of both Nor-
dick and Prior, Respondent engaged in extensive and substantive bargain-
ing with the District Council and made a counteroffer, setting forth ex-
actly what It believed the parties' contracts should cover When the Ds-
met Council accepted the counteroffer—as I believe It did—the parties,
in fact, reached a true "meeting of the minds" Moreover, Respondent
has always been aware of its monetary obligations under the successive
applicable Industry contracts
ties' collective -bargaining agreement and initially pointed
to the "frequent" occasions on which District Council
business representatives caught Respondent's non-
member-installers on jobsites and failed to require Re-
spondent to enforce the contractual union-security clause
against them However, the only direct evidence of such
prior to 1987 came from the testimony of Carl Pierret,
and, while testifying that confrontations did occur during
which he was present, such "didn't happen often" Also,
the record warrants the conclusion that Respondent's
practice was to deliberately mislead the business repre-
sentatives as to the status of the nonmember-installers
Thus, Clayton Grimes and Gerald Beedle testified—and
Stephen Donohue admitted—that the latter told the Dis-
trict Council officials in 1987 that various nonmember-in-
stallers, who had been caught by Beedle working on
commercial construction projects, were merely working
on an emergency basis, were not regular installers, or
were shop employees Donohue so informed Beedle and
Grimes, aware that his information was untrue More-
over, Beedle, who appeared to be an honest witness and
is credited herein, testified to a similar incident in 1984
wherein Respondent's dispatcher advised him that a non-
member-installer on a jobsite was merely temporary
Counsel also pointed to the two audits of Respondent's
payroll records by an auditor for the contractual fringe
benefit trust funds in 1984 and 1986 While these did not
establish that nonmember-installers were employed by
Respondent or that no fringe benefits were being paid on
their behalf, the record is clear that the auditor was
checking only on those employees for whom benefits
had been paid and that Respondent never notified him
that other installers, nonmember employees, were also
performing Carpenters work Accordingly, the foregoing
establishes that, at most, Respondent deliberately con-
cealed its contractual breaches from the District Council,
and, at least, the latter was no more than lax or negligent
in pursuing its contractual rights Certainly, it cannot be
said that the District Council's inaction in enforcing its
rights ever arose to the level of "a clear and unmistak-
able" waiver of its right to bargain, and no official of the
District Council ever gave to Respondent the former's
iriipnmatur to engage in its admitted contractual
breaches Furthermore, assuming arguendo that the Dis-
trict Council's past inaction constituted waivers in the
early 1980s, it is clear that "a right once waived is not
necessarily lost forever" Murphy Diesel Go, 184 NLRB
757, 763 (1970), NLRB v Miller Brewing Co, 408 F 2d
12, 14 (9th Cir 1969) In the circumstances of this case,
Respondent's unilateral failure to adhere to the terms of
its collective-bargaining agreement with the District
Council during the 10(b) statute of limitations period was
serious enough to require bargaining about them Id
Therefore, I find Respondent's above defense to be with-
out merit 37
37 In support for its waiver contention, Respondent's counsel cites to
Greenleaf Motor Express, 285 NLRB 844 (1987), in which the Board con-
cluded that a union had not waived its representational rights Counsel
argues that the factors on which the Board relied to find no waiver
therein are absent in the Instant factual context and that the Board would,
Continued
TWIN CITY GARAGE DOOR CO

129
Respondent's final defense to the complaint allegations
is that it lawfully repudiated an 8(f) bargaining relation-
ship with the District Council Initially, there can be no
doubt that Respondent has been, and is, an employer en-
gaged in the building and construction industry Thus, its
employees are engaged in the installation of overhead
garage doors on new commercial and residential con-
struction projects in the Minneapolis and St Paul munic-
ipal areas In these circumstances and as there is no
record evidence that the Carpenters represented a major-
ity of Respondent's installation employees at the time the
parties entered into their 1978 collective-bargaining
agreement, I conclude—and it is undisputed—that Re-
spondent entered into its collective-bargaining relation-
ship with the District Council pursuant to Section 8(f) of
the Act 38 Recently, in John Dekkwa & Sons, Inc , 282
NLRB 1375 (1987), the Board reversed and clarified sev-
eral principles of the law in this area, stating
(1) a collective-bargaining agreement permitted by
Section 8(1) shall be enforceable through the mecha-
nisms of Section 8(a)(5) and Section 8(b)(3), (2) such
agreements will not bar the processing of valid peti-
tions filed pursuant to Section 9(c) and Section 9(e),
(3) in processing such petitions, the appropriate unit
normally will be the single employer's employees
covered by the agreement, and (4) upon the expira-
tion of such agreements, the signatory union will
enjoy no presumption of majority status, and either
party may repudiate the 8(f) bargaining relationship
Id at 1377-1378 As I understand the argument ad-
vanced by counsel for Respondent, while the Company
may have been obligated to adhere to the Carpenters
therefore, reach an opposite result Initially, I am not as sanguine as
counsel that the District Council's failure to uncover Respondent's perfi-
dy was entirely the fault of the former Rather, Respondent deliberately
sought to conceal the exact status of its non-Carpenters Union members
from the District Council Further, Inasmuch as the Board did not have
before it the instant factual context, It is mere speculation as to how the
Board would have ruled Therefore, I find Respondent's reliance upon
Greenleaf Motor Express, supra, not controlling herein
38 Sec 8(t) of the Act reads as follows
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction Industry to make an agreement covering employees
engaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished, maintained, or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because (1) the majority status of
such labor organization has not been established under the provisions
of section 9 of this Act prior to the making of such agreement, or (2)
such agreement requires as a condition of employment, membership
in such labor organization after the seventh day following the begin-
ning of such employment or the effective date of the agreement,
whichever is later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for employment with
such employer, or gives such labor organization an opportunity to
refer qualified applicants for such employment, or (4) such agree-
ment specifies minimum training or experience qualifications for em-
ployment or provides for priority in opportunities for employment
based upon length of service with such employer, in the industry or
in the particular geographical area Provided, That nothing in this
subsection shall set aside the final proviso to section 8(a)(3) of this
Act Provided further, That any agreement which would be invalid,
but for clause (1) of this subsection, shall not be a bar to a petition
filed pursuant to section 9(c) or 9(e)
commercial construction agreement in effect at the time
of the 1978 contract, Respondent, by dint of the above
principles, was free to—and did—repudiate successor
agreements thereto However, while the Board, as of the
date of this decision, has apparently not yet considered,
in the context of Section 8(1) of the Act, the liability
under successive multiemployer association collectiâ– re-
bargaining agreements of employers who are parties to
short-form agreements, which bind them to such con-
tracts, but who are not members of the signatory multi-
employer associations, the Board has ruled upon the con-
tinuing contractual liability of employer-members of mul-
tiemployer bargaining associations who authorize their
associations to bargain and enter into successive agree-
ments, on their behalf, with labor organizations Thus, in
Kephart Plumbing, 285 NLRB 612 (1987), Reliable Elec-
tric Go, 286 NLRB 834 (1987), and Carthage Sheet Metal
Go, 286 NLRB 1249 (1987), the Board, notwithstanding
the existence of 8(0 bargaining relationships, concluded
that the respective employers were bound by successor
collective-bargaining agreements In Reliable Electric Go,
the Board found that the employer's authorization to the
multiemployer association which, as herein, was in the
nature of a short-form recognition agreement and which
had been obtained by the union, did not terminate at the
end of any existing agreement, that the authorization
bound it to future agreements, and that authorization
continued until the employer undertook some action ef-
fectively withdrawing the association's authority to bar-
gain, and that such was not done Therefore, the Board
concluded that a successor agreement was "binding, en-
forceable, and not subject to unilateral repudiation by the
[employed" as it "had not successfully revoked [the as-
sociation's] bargaining authority" 286 NLRB at 1376 fn
12 Noting that Respondent was not an employer-
member of the Associated General Contractors of Min-
nesota, I nevertheless find the instant factual context,
clearly analogous to those of the above Board decisions
Thus, as in Reliable Electric Go, Respondent's contrac-
tual liability did not cease at the expiration of the com-
mercial construction agreement in effect at the time of
the parties' 1978 contract Rather, Respondent agreed
"to be bound by any renewals, additions, modifications,
extensions and subsequent agreements" between the As-
sociated General Contractors of Minnesota and the Dis-
trict Council Further, and of critical import to this anal-
ysis, as in Reliable Electric Go, the instant "Independent
Agreement," by its explicit terms, "shall remain in full
force and effect until such time as it is terminated in
writing [by either party] " There is no record evidence
that either Respondent or the District Council ever ter-
minated their 1978 agreement according to its terms, and,
inasmuch as Respondent apparently knowingly accepted
the above provisions, I fail to perceive any reason why,
as the employers in the above-cited Board decisions, Re-
spondent should not be held to have been obligated to
adhere to the terms and conditions of employment set
forth in the successive commercial construction agree-
ments, including the existing 1986 through April 30,1989
contract Accordingly, I find that said existing commer-
cial construction contract is "binding, enforceable, and
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not subject to unilateral repudication by the Respondent"
(John Deklewa & Sons, supra at 1389) and that, by failing
and refusing to enforce the union-security provision
thereof and to pay to its installers, who are not members
of the Carpenters Union, the existing contractual wages
and fnnge benefits, and by repudiating the parties' 1978
"Independent Agreement," Respondent engaged in con-
duct violative of Section 8(a)(1), (3), and (5) of the Act
B F C Corp, 285 NLRB 583 (1987)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The District Council is a labor organization within
the meaning of Section 2(5) of the Act
3 All carpenters, millwrights and piledrivers em-
ployed by Nordpal Corporation d/b/a Twin City
Garage Door Co, excluding all other employees, office
clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute an appropri-
ate unit of Respondent's employees 39 for the purpose of
collective bargaining under the Act
4 Since on or about March 28, 1987, by unilaterally
failing and refusing to pay to its installation employees
who are not members of the Carpenters Union the wages
and fringe benefits specified in the existing commercial
construction agreement between the District Council and
the Associated General Contractors of Minnesota, Re-
spondent discriminated against said employees and re-
fused to bargain with the District Council as the repre-
sentative of the employees in the unit described in para-
graph 3 above for purposes of collective bargaining in
violation of Section 8(a)(1), (3), and (5) of the Act
5 Since on or about August 26, 1987, by unilaterally
failing and refusing to comply with the District Council's
request that it adhere to the terms of the union-security
provision of the existing commercial construction agree-
ment between the District Council and the Associated
General Contractors of Minnesota, Respondent has re-
fused to bargain with the District Council as the repre-
sentative of the employees in the unit described in para-
graph 3 above for purposes of collective bargaining in
violation of Section 8(a)(1) and (5) of the Act
6 Since on or about November 2, 1987, by repudiating
its 1978 collective-bargaining agreement with the District
Council at a time when the existing collective-bargaining
agreement between the District Council and the Associ-
ated General Contractors of Minnesota, to which Re-
spondent was bound, remained in effect, Respondent re-
fused to bargain with the District Council in violation of
Section 8(a)(1) and (5) of the Act
REMEDY
Having concluded that Respondent engaged in certain
unfair labor practices violative of Section 8(a)(1), (3), and
(5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act Im-
39 Although stated in terms of the bargaining unit as set forth in the
"Independent Agreement," as specifically applied to Respondent, the bar-
gaining unit encompasses only its installation employees
nally, I shall recommend that Respondent be ordered to
reinstate and adhere to the terms of its "Independent
Agreement" with the District Council, including abiding
by the terms, including the union-security clause, of the
existing commercial construction collective-bargaining
agreement between the District Council and the Associ-
ated General Contractors of Minnesota, and to recognize
and afford the District Council, as the bargaining repre-
sentative of its installation employees, an opportunity to
bargain regarding any changes in said employees' wages,
hours, fringe benefits, or other terms and conditions of
employment Next, I shall recommend that Respondent
be ordered to reimburse any bargaining unit employees,
including those who are not members of the Carpenters,
for any wages they lost as a result of its failure to adhere
to the terms of its "Independent Agreement" with the
District Council since March 28, 1987, with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987) 40 Next, I shall recommend that Respondent
be ordered to reimburse the fringe benefit trust funds, es-
tablished under the 1986 through April 30, 1989 Associ-
ated General Contractors of Minnesota commercial con-
struction collective-bargaining agreement, to which Re-
spondent is bound through its "Independent Agreement"
with the District Council, for any payments, on behalf of
Respondent's bargaining unit employees who worked on
commercial construction projects, withheld since March
28, 1987, with interest 41 Also, in this regard, I shall rec-
ommend that Respondent reimburse bargaining employ-
ees for expenses incurred by them due to the failure to
make such contributions 42 Finally, I shall recommend
that Respondent post a notice to its employees, setting
forth its obligations, and mail a copy of said notice to all
its installation employees, who were employed as of
March 28, 1987
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed43
ORDER
The Respondent, Nordpal Corporation d/b/a Twin
City Garage Door Co, Minneapolis, Minnesota, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
49 In accordance with New Horizons for the Retarded, interest on and
after January 1, 1987, shall be computed at the short-term Federal rate".
for the underpayment of taxes as set out in the 1987 amendment to 26
U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the
effective date of the 1986 amendment to 26 U S C § 6621) shall be com-
puted in accordance with Florida Steel Corp, 231 NLRB 651 (1977)
41 The Board does not provide at the adjuchcatory stage of the pro-
ceeding for the addition of Interest at a fixed rate on unlawfully withheld
fund payments Kephart Plumbing, supra at fn 5 Any additional amount
owed in order to satisfy this "make-whole" remedy shall be determined
at the compliance stage Merryweather Optical Ca, 240 NLRB 1213 at fn
7 (1979)
42 Kraft Plumbing, 252 NLRB 891 (1980)
43 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
TWIN CITY GARAGE DOOR CO 131
(a) Failing and refusing to give effect to its "Independ-
ent Agreement" with the District Council and pursuant
to its terms, to comply with the existing commercial con-
struction collective-bargaining agreement, effective until
April 30, 1989, between the District Council and the As-
sociated General Contractors of Minnesota
(b) Failing and refusing to comply with and unilateral-
ly changing the terms and conditions of employment of
its installation employees, including not complying with
the union-security provision and not paying the contrac-
tual wages and fringe benefits to its installation employ-
ees who are not members of the Carpenters Union,
during the term of a valid collective-bargaining agree-
ment without prior consultation with the District Coun-
cil as the exclusive collective-bargaining representative
of these employees
(c) Discriminating against its installation employees
who are not members of the Carpenters Union by not
paying to them the contractually established wages and
fringe benefits
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) For the term of the existing commercial construc-
tion agreement between the District Council and the As-
sociated General Contractors of Minnesota, effective
until April 30, 1989, restore and place into effect all
terms and conditions of employment as provided in the
agreement which were unilaterally changed and aban-
doned by Respondent, including enforcement of the
union-security clause and payment to all bargaining unit
employees the contractual wages and fringe benefits
(b) Make whole all bargaining unit employees for any
loss of wages or other benefits suffered by reason of Re-
spondent's unlawful conduct, with interest
(c) Make payments to the fringe benefit trust funds, in-
cluding the welfare, pension, vacation, and apprentice
funds, established pursuant to the terms of the existing,
effective until April 30, 1989, collective-bargaining
agreement between the District Council and the Associ-
ated General Contractors of Minnesota, on behalf of
those bargaining unit employees for whom contributions
were not previously made and which payments would
have continued to be made had not Respondent unlaw-
fully refused to comply with and ultimately abandoned
the "Independent Agreement" and reimburse those em-
ployees for expenses incurred by them due to the failure
to make such contributions
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its facility in Minneapolis, Minnesota copies
of the attached notice marked "Appendix "" Copies of
44 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediatley 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 Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material Further, inasmuch as Re-
spondent has, since October 1987, subcontracted out
most, if not all, of its installation work, copies of said
notice should be mailed by Respondent to all installation
employees who have been employed by it since March
28, 1987
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT repudiate or otherwise fail and refuse to
give effect to our "Independent Agreement" with the
Twin City Carpenters District Council, United Brother-
hood of Carpenters and Joiners of America (the District
Council) and, pursuant to the terms of that agreement, to
comply with the existing commercial construction collec-
tive-bargaining agreement, effective until April 30, 1989,
between the District Council and the Associated General
Contractors of Minnesota (AGC) The appropriate unit
of employees covered by our "Independent Agreement"
with the District Council is comprised of our installation
employees and is formally set forth as follows
All carpenters, millwrights and piledrivers, exclud-
ing all other employees, office clerical employees,
professional employees, guards, and supervisors as
defined by the National Labor Relations Act
WE WILL NOT fail and refuse to comply with or unilat-
erally change the terms and conditions of employment of
our installation employees, including not enforcing the
union-security provision and not paying the contractual
wages and fringe benefits to our installers who are not
members of the Carpenters, during the term of the above
commercial construction collective-bargaining agreement
without prior consultation with the District Council as
the exclusive collective-bargaining representative of
these employees
WE WILL NOT discriminate against our installation em-
ployees who are not members of the Carpenters by not
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
paying to them the contractually established wages and
fringe benefits
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act
WE WILL, for the term of the existing commercial con-
struction collective-bargaining agreement between the
District Council and the AGC, effective until April 30,
1989, restore and place into effect all terms and condi-
tions of employment, as provided in the agreement,
which were unilaterally changed and abandoned by us,
including the union-security, wages, and fringe benefits
provisions
WE WILL make whole all our installation employees
for any loss of wages or other benefits suffered by reason
of our unlawful conduct, with interest
WE WILL make payments to the contractual fringe
benefit trust funds on behalf of those installation employ-
ees for whom contributions were not made and which
payments we would have continued to make had we not
unlawfully refused to comply with and, ultimately, aban-
doned our "Independent Agreement" with the District
Council and reimburse any installation employees for ex-
penses incurred by them due to our failure to make such
contributions
NORDPAL CORPORATION D/B/A TWIN
CITY GARAGE DOOR CO