Haas Garage Door Co.

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1186 (N.L.R.B. 1992)

1186
308 NLRB No. 174
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party, joined by the General Counsel, filed a mo-
tion to strike the affidavits attached to the Respondent’s brief in sup-
port of exceptions, as well as those portions of the Respondent’s
brief in support of exceptions which quote from and/or refer to the
affidavits. The Respondent filed a reply to the Charging Party’s mo-
tion to strike. The affidavits which the Charging Party seeks to strike
cannot now be relied on because they were not introduced into evi-
dence during the hearing before the administrative law judge and
thus were not made part of the record. Therefore, we grant the mo-
tion to strike. Consolidated Casinos Corp., 266 NLRB 988 fn. 3
(1983); Natural Heating Systems, 252 NLRB 1082 fn. 1 (1980).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the 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.
3 The information requested by the Union included the location
and starting and termination dates of each jobsite worked by the Re-
spondent from January 1, 1990, to the present; the specific work to
be performed at each jobsite; the name, address, and social security
number of each employee performing work at each of the jobsites;
and the number of hours worked, hourly wage, and fringe benefits
paid to each of the employees.
4 Sec. XIX of the 1990–1993 collective-bargaining agreement pro-
vides that work covered by the contract may be done by subcontrac-
tors who have signed agreements with the Union.
5 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 109 S.Ct. 222
(1988).
6 In concluding that Pauwels and Otte were independent contrac-
tors, the judge noted that Pauwels and Otte are paid by the job, the
Respondent does not withhold taxes for them, they use their own
equipment, they do work for other contractors, and they sometimes
refuse work offered by the Respondent. Further, both Pauwels and
Otte are signatories as contractors to the 1990–1993 contract be-
tween the Association and the Union.
7 We note that the unit set forth in the complaint is limited to the
Respondent’s employees.
Haas Garage Door Co. and Northwest Ohio District
Council of Carpenters. Case 8–CA–23257
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 8, 1991, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent was a member
of the Associated Door Contractors of Toledo (Asso-
ciation), a multiemployer association. Beginning in
1974 and continuously thereafter, various agreements
were in effect between the Association and the Union.
The most recent collective-bargaining agreement be-
tween the Association and the Union, which was
signed by them in November 1989, was effective from
January 1, 1990, through December 31, 1993.
On October 10, 1990, the Respondent attempted to
withdraw from the Association. Prior to that date,
however, the Respondent had failed and refused to
execute the 1990–1993 collective-bargaining agree-
ment, which the Union had requested it to do in a let-
ter dated July 25, 1990. Further, the Respondent re-
fused to furnish information requested by the Union in
a separate letter dated July 25, 1990.3
The Respondent admits that it did not execute the
collective-bargaining agreement as requested by the
Union or respond to the Union’s information request.
Its defense is that it is not bound to the 1990–1993
agreement because it has no employees doing unit
work, but rather uses independent contractors to do
such work.4
The judge found that the Respondent’s attempted
withdrawal from the Association was untimely because
it occurred after the 1990–1993 contract had been
agreed to, and thus that the Respondent was bound to
the 1990–1993 contract. The judge concluded that the
Respondent violated Section 8(a)(5) and (1) of the Act
by repudiating the contract, and by refusing to execute
the 1990–1993 contract as requested by the Union.
Further, having found that the information requested
by the Union in its July 25, 1990 letter was necessary
and relevant to the Union’s performance of its duties
as the exclusive bargaining representative, the judge
also concluded that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to furnish this in-
formation to the Union.
The judge rejected the Respondent’s defense that it
is not bound to the 1990–1993 contract because it has
no employees performing unit work. The judge found
that because the Respondent is engaged in the con-
struction industry, the principles covering 8(f) agree-
ments, as elucidated in John Deklewa & Sons,5 apply
here. The judge stated that an 8(f) agreement covers
terms and conditions of employment for workers not
yet hired, and that even if the Respondent has no em-
ployees doing unit work it cannot repudiate the con-
tract during its term. He noted that Pauwels and Otte
do virtually all the Respondent’s garage door install-
ing, and that they appear to be independent contractors
rather than employees.6 The judge then found that the
work of employee Van Dorn, an electric garage door
opener repairman, appeared to be unit work.
Contrary to the judge, we find merit in the Respond-
ent’s defense that it is not bound to the contract be-
cause it has no employees doing unit work.7 Initially,
1187HAAS GARAGE DOOR CO.
8 Wilson & Sons Heating & Plumbing, 302 NLRB 802 (1991), enf.
denied on other grounds 140 LRRM 3042 (1992); Searls Refrigera-
tion Co., 297 NLRB 133 (1989); Stack Electric, 290 NLRB 575
(1988); and Garman Construction Co., 287 NLRB 88 (1987).
1 This case, i.e., Case 8–CA–23257, was part of a consolidated
complaint with Case 8–CA–23258 in which the Respondent was
Nofziger Door Sale, Inc. The case against Nofziger settled prior to
the hearing in the instant case.
2 I found all the witnesses to be honest and credible. Some wit-
nesses had better recollections however, and their testimony received
greater weight.
we disagree with the judge’s finding that even if an
employer has no employees doing unit work it cannot
repudiate an 8(f) contract. Rather, the Board has held
that the one-man unit rule applies in an 8(f) context.
That rule provides that when a unit consists of no
more than a single permanent employee at all material
times, an employer has no statutory duty to bargain
and thus, will not be found in violation of the Act for
disavowing a bargaining agreement and refusing to
bargain.8
Here, we find that there is no evidence that the Re-
spondent has had more than one employee performing
unit work at all material times, and thus we find the
one-man unit rule applies in this case. We adopt the
judge’s finding that Pauwels and Otte are independent
contractors and not employees. Further, the judge also
found that Pauwels and Otte—who have performed
work for the Respondent for approximately 30 years
and 18 to 20 years, respectively—have done virtually
all the Respondent’s garage door installing, which is
undisputed unit work. The Respondent has no other
employees who perform installation work. Regarding
Van Dorn, who has worked for the Respondent in the
same capacity since 1979, the judge found that his
work, repairing garage door openers, appeared to be
unit work. The Respondent contends, however, that
Van Dorn does not do unit work because the unit in-
cludes only employees doing commercial work related
to the installation or repair of garage doors, and that
Van Dorn does primarily residential work. We find it
unclear from the record whether Van Dorn performs
primarily residential or commercial work. In light of
our application of the one-man unit rule to this case,
however, we find it unnecessary to determine whether
Van Dorn is included in the unit because, even assum-
ing that he is a unit member, we find that the Re-
spondent would have at most one employee perform-
ing unit work at all material times.
Accordingly, we find that the Respondent did not
violate Section 8(a)(5) and (1) by repudiating the con-
tract, by refusing to execute the contract, or by refus-
ing to furnish information to the Union. We therefore
shall dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
Mark F. Neubecker, Esq., for the General Counsel.
Donal Hummer, Esq., of Toledo, Ohio, for the Respondent.
John M. Roca, Esq., of Toledo, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On No-
vember 30, 1990, the charge in Case 8–CA–23257 was filed
by the Northwest Ohio District Council of Carpenters (the
Union) against Respondent Haas Garage Door Co.
Thereafter, on January 31, 1991, the National Labor Rela-
tions Board, by the Regional Director for Region 8, issued
a complaint in Case 8–CA–232571 alleging that Respondent
violated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act) when it failed and refused to sign a col-
lective-bargaining agreement with the Union, when it failed
and refused to furnish information requested by the Union,
and when it refused to abide by and repudiated its collective-
bargaining agreement with the Union.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me in Toledo, Ohio, on May
21, 1991.
I find that the General Counsel has proved its case and
will recommend an appropriate remedy.
Based on the entire record in this case, to include
posthearing briefs filed by the General Counsel, Respondent,
and the Charging Party, and based on my observation of the
witnesses and their deameanor,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Haas Garage Door Co. an Ohio corporation,
with an office and place of business in Perrysburg, Ohio, has
been engaged in the sale and installation and service of over-
head garage doors for residential and commercial customers.
Annually, Respondent, in the course and conduct of its
business operations described above, derived gross revenues
in excess of $500,000 and has purchased and received at its
Perrysburg, Ohio facility products, goods, and materials val-
ued in excess of $50,000 directly from points outside the
State of Ohio.
Respondent is now, and has been at all times material, an
empoyer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Northwest Ohio District Council of Carpenters is now, and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Ken ‘‘Duke’’ Haas is the President of Respondent. Re-
spondent is in the business of selling, installing, and servic-
ing garage doors.
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Back in the mid-1970s Ken ‘‘Duke’’ Haas, on behalf of
Respondent, was one of several founders of the Associated
Door Contractors of Toledo (the Association). The Associa-
tion was a multiemployer association set up for the purpose,
inter alia, of representing its employer members in negotiat-
ing wages, hours, working conditions and other terms and
conditions of employment, and administering collective-bar-
gaining agreements with initially the Maumee Valley Car-
penters District Council and later the successor to the
Maumee Valley Carpenters District Council, namely, the
Northwest Ohio District Council of Carpenters, the Union, or
the Charging Party.
Beginning in 1974 and continuously thereafter various
agreements were in effect between the Associated Door Con-
tractors of Toledo and the Union. An agreement which ran
from July 1, 1984, through March 31, 1986, was continued
in effect by mutual agreement of the Association and the
Union.
On January 27, 1989, the Union wrote to Kevin Smith, the
president of the Association, to advise that the Union wished
to negotiate with the Association for a successor collective-
bargaining agreement. Copies of this letter were sent to a
number of contractors who were employer-members of the
Association, to include the Respondent.
On February 10, 1989, the Union sent another letter to
Kevin Smith, the president of the Association. In this letter,
copies of which were sent to the employer-members of the
Association, to include the Respondent, the Union made an
information request of the employer-members of the Associa-
tion.
A copy of this February 10, 1989 letter containing the in-
formation request and stating that the information was being
sought by the Union for its use in the upcoming negotiations
with the Association was received by Respondent. Respond-
ent’s general manager, Tom Haas, the son of President Ken
‘‘Duke’’ Haas, furnished to the Union the information it
sought in the February 10, 1989 letter.
Negotiations began sometime thereafter. A number of ses-
sions were held before agreement was reached on a successor
collective-bargaining agreement. None of the employer-mem-
bers of the Association attended every session. One member
attended none of the sessions.
Respondent’s general manager, Tom Haas, who is also the
son of Respondent’s president, admits he attended three
meetings in connection with the new contract. At least one
of these meetings was a negotiating session with the Union
in attendance.
At this session Union Business Representative Ron
Rothenbuhler remembered Tom Haas joining in a manage-
ment caucus during the negotiating session and expressing an
opinion regarding the union pension demand and the applica-
bility of the contract to residential versus commercial work.
Neither Tom Haas nor Bill Brennan, executive director of the
Association, remember what role, if any, Tom Haas played
in that negotiating session. I credit Ron Rothenbuhler’s testi-
mony.
Suffice it to say the Association and the Union reached
agreement on a contract which was to run from January 1,
1990, through December 31, 1993. The Union and the Asso-
ciated Door Contractors of Toledo signed the contract some-
time in November 1989.
At no time between the mid-1970s when the Associated
Door Contractors of Toledo came into existence with Ken
‘‘Duke’’ Haas as one of several founding members, up to the
time the latest contract went into effect did Respondent ever
attempt to withdraw from the Association or withdraw its
delegation of bargaining authority from the Association. At
no time between the mid-1970s and the effective date of the
latest contract, January 1, 1990, did Respondent ever tell the
Union directly or indirectly, orally or in writing, that it was
withdrawing from the Association or withdrawing its delega-
tion of bargaining authority to the Association.
Indeed, Respondent actively participated in the negotia-
tions for the new contract, e.g., it complied with the union
request for information in February 1989 which information
the Union said in its letter it needed ‘‘in preparing for the
beginning of negotiations with the Associated Door Contrac-
tors of Toledo.’’ Respondent’s general manager attended
three meetings in connection with the new contract to include
at least one negotiating session with the Union.
Both Union Business Representative Ron Rothenbuhler
and Association Executive Director and Chief Negotiator Bill
Brennan credibly testified without contradiction—that Re-
spondent never indicated, directly or indirectly, orally or in
writing, that it no longer considered itself a member of the
Association.
On October 10, 1990, Respondent withdrew from the As-
sociation.
Prior to October 10, 1990, however, Respondent, had
failed and refused to execute the January 1, 1990, through
December 31, 1993 collective-bargaining agreement which
the Union requested it to do in a letter dated July 25, 1990.
In addition, Respondent failed and refused to furnish infor-
mation requested by the Union in a letter dated July 25,
1990.
The Union request for information in a letter from Union
Business Representative Ron Rothenbuhler to the chief exec-
utive officer of Respondent was as follows:
Please be advised that I am a Business Representa-
tive for the Northwest Ohio District Council of Car-
penters. As you are aware, the Northwest Ohio District
Council of Carpenters has a collective bargaining agree-
ment with the Associated Door Contractors of Toledo,
with which you are affiliated, concerning so called
‘‘commercial’’ door work. In order to assure that each
contractor signatory to this agreement is observing the
terms of the same, the Union is asking that you provide
the following information in order for the Union to de-
termine whether any of its provisions have been vio-
lated. Thus, the Union is requesting the following:
(1) the location, starting date, termination date, of each
jobsite you have worked since January 1, 1990 to the
present.
(2) describe specifically the work that was to be per-
formed at each of the jobsites in paragraph 1 above.
(3) the name, address, and social security number of
each employee performing work on each of the
jobsites mentioned in paragraph 1 above.
(4) the number of hours worked, hourly wage, and
fringe benefits, paid to each of the employees or on
behalf of the employees mentioned in paragraph 3
above.
1189HAAS GARAGE DOOR CO.
Again, this information is necessary for the Union to
determine whether or not the collective bargaining
agreement has been violated.
Please respond within ten (10) days of the date of
this letter or the Union will have no other choice but
to undertake all lawful action to secure a response.
Thank you for your cooperation in this matter.
Respondent admits it did not sign or execute the contract
as requested by the Union and that it did not respond to the
Union information request. Its defense is that it is not bound
by the 1990 to 1993 contract between the Association and
the Union because while it has employees working as sales-
men for example it claims it has no employees doing the unit
work described in the contract but uses independent contrac-
tors to do that work. In short, Respondent has repudiated the
contract.
Respondent did not timely withdraw from the multiem-
ployer Association, therefore, it is bound by the agreement
reached between the Union and the Association. See Acrop-
olis Painting, 272 NLRB 150 (1984); Retail Associates, 120
NLRB 388 (1958). It is clear that withdrawal from a multi-
employer Association subsequent to a contract being agreed
to is grossly untimely. Therefore, Respondent is bound by
the contact agreed to in November 1989 by the Asociation
and the Union scheduled to run from January 1, 1990,
through December 31, 1993.
An individual member of a multiemployer Association
which Assocaition has a contract with the Union must, if re-
quested by the Union, execute or sign the agreement. See
Buffalo Bituminous, 227 NLRB 99 (1976), enfd. 564 F.2d
267 (8th Cir. 1977). Accordingly, Respondent violated the
Act when it refused to sign the 1990–1993 contract.
An employer violates the Act if it refuses to turn over in-
formation requested by the Union provided the information
sought by the Union is necessary for, and relevant to, the
Union’s performance of its function as the exclusive bargain-
ing representative of the unit. See NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
The information sought in the Union’s letter of July 25,
1990, which is set out above, is so obviously necessary and
relevant to the Union’s performance of its duties that no ex-
planation on why need be made. It is obvious in the extreme
that the information, which no one claims is unduly burden-
some to collect, is necessary and relevant to see if the con-
tract is being complied with by Respondent. The thrust of the
request is to determine if employees represented by the
Union are indeed working and to determine if the appropriate
wage and fringe benefits are being paid. Accordingly, Re-
spondent violated the Act when it failed and refused to fur-
nish this information to the Union.
Respondent’s defense that it isn’t bound by the contract
because it has no employees doing the work described as
unit work in the contract is no defense in this case.
The installation and servicing of garage doors is construc-
tion industry work and no party to this case maintains other-
wise. Therefore, the principles of John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 107 S.Ct.
222 (1988), control. A party may not reputiate an 8(f) agree-
ment during its term. The 8(f) agreements are allowed in the
construction industry. An 8(f) agreement is an agreement be-
tween an employer and a union which covers terms and con-
ditions of employment for workers not yet hired. Accord-
ingly, even if Respondent has no employees doing so-called
unit work that does not mean it can repudiate the contract,
refuse to execute the contract, or refuse to turn over to the
Union information necessary and relevant to the Union’s dis-
charge of its obligations.
Tom Pauwels and James Otte, both of whom testified, do
virtually all of Respondent’s garage door installing and ap-
pear to be independent contractors and not employees. They
are paid by the job, Respondent does not withhold taxes,
they use their own equipment, they do work for other con-
tractors, and sometimes refuse work offered by Respondent.
Both Pauwells and Otte are themselves signatories as con-
tractors to the 1990–1993 contract between the Associated
Door Contractors of Toledo and the Union. However, the
work described to be that of Respondent’s employee Richard
Van Dorn, an electric garage door opener repairman, appears
clearly to be unit work.
Suffice it to say Respondent violated the Act when it repu-
diated the contract, failed and refused to execute the contract
when requested, and failed and refused to furnish the infor-
mation requested by the Union in its July 25, 1990 letter.
III. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered
to cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act. The Respondent
will be ordered to make whole, as prescribed in Ogle Protec-
tion Service, 183 NLRB 682 (1970), any employees for
losses they may have suffered as a result of the Respondent’s
failure to adhere to the contract, with interest, as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The Respondent is an employer 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. By repudiating its current collective-bargaining agree-
ment with the Union, by refusing to execute its current col-
lective-bargaining agreement with the Union, and by refusing
to turn over information requested by the Union on July 25,
1990, which is necessary and relevant to the Union’s per-
formance of its collective-bargaining duties, the Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
4. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]