L & M Carpet Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1975

218 N.L.R.B. 802 (N.L.R.B. 1975)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L & M Carpet Contractors, Inc. and ' Carpet and Soft
Tile Union Local No. 1237, International Brother-
hood of Painters, Decorators and Paper Hangers of
America. Case 20-CA-8823
June 23, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 9, 1975, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and Charging Party filed briefs in answer to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order, as herein
modified.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to furnish Carpet and Soft
Tile Union Local No. 1237, International Broth-
erhood of Painters, Decorators and Paper Han-
gers of America, or its agents, our cash disburse-
ment records and general ledger for the period
from October 1971 through October 1973 for
auditing purposes.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed under
Section 7 of the National Labor Relations Act,
except to the extent such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
L & M CARPET
CONTRACTORS, INC.
DECISION
STATEMENT OF THE CASE
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
L & M Carpet Contractors, Inc., Sacramento,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order, as herein modified.
1. Substitute the following for paragraph 1:
"1. Cease and desist from refusing to furnish
Carpet and Soft Tile Union Local No. 1237,
International Brotherhood of Painters, Decorators
and Paper Hangers of America, or its agents, for an
audit, its cash and disbursement records and general
ledger for the period from October 1971 through
October 1973."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 In its exceptions, Respondent argues that the Union did not request the
audit of Respondent 's books, or that specific information be furnished, but
rather that the administrator of the trust made such a request. Therefore,
according to Respondent, the refusal to furnish the information cannot be
found to be a violation of Sec. 8(aX5) or (1) of the Act. However, it has been
settled in the past that the trustees of a trust fund which has been provided
for by the collective-bargaining agreement are agents of each of the parties
to such agreement. See Local 80, Sheet Metal Workers International
Association, AFL-CIO (Turner-Brooks, Inc.), 161 NLRB 229 (1966).
218 NLRB No. 130
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard in Sacramento, California, on January
28, 1975. The complaint, issued October 25, 1974, and
based upon a charge filed December 13, 1973, by Carpet
and Soft Tile Union Local No. 1237, International
Brotherhood of Painters, Decorators and Paper Hangers of
America, herein the Union, alleges that Respondent, L &
M Carpet Contractors, Inc., has engaged in unfair labor
practices within the meaning of Section 8(aX5) and (1) of
the Act. Briefs have been submitted by the parties. On
February 27, 1975, the General Counsel submitted an
unopposed motion to amend the complaint with respect to
Respondent's business operations, described below, and
the motion is hereby granted.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
L & M Carpet Contractors, Inc., a California corpora-
tion, maintains its principal office and place of business at
Sacramento, California, where it is engaged in the retail
and nonretail sale and installation of floor coverings, these
respectively divided 60 and 40 percent in volume of
business.
During the 12-month period from July 1, 1973, through
June 30, 1974, it furnished services to Pisciotta Builders of
Carmichael, California., valued at $46,354.45. The latter
firm, in turn, during the same period enjoyed gross
L & M CARPET CONTRACTORS 803
revenues in excess of $500,000 and purchased goods and
supplies valued in excess of $10,000 from suppliers which
purchased same directly from suppliers located outside the
State of California. During the same period, Respondent
furnished services valued at $12,317.30 to Adorado
Corporation of Sacramento, California, which enjoyed
gross sales in excess of $500,000 and likewise handled
goods and supplies valued in excess of that sum which
originated outside the State of California.
I find, in view of the foregoing, that the operations of
Respondent satisfy the Board's jurisdictional standards
and that they affect commerce within the meaning of
Section 2(6) and (7) of the Act. See Man Products, Inc., 128
NLRB 546 (1960).
II. THE LABOR ORGANIZATION INVOLVED
Carpet and Soft Tile Union Local No . 1237, Internation-
al Brotherhood of Painters , Decorators and Paper Hangers
of America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issue
Jurisdiction aside, this case involves simply the refusal of
Respondent to furnish certain information to a labor
organization which no longer represents its employees.
While the issue may be much ado about little and perhaps
should more properly be before a state court in a breach of
contract action, the issue, concerning which there is little
factual conflict, is nevertheless before me.
The complaint alleges, and I find, that all nonsupervisory
foremen, installers, and sewers of Respondent at its
Sacramento facility, excluding all other employees, guards,
and supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. While Respondent's answer denies
same, this is manifestly an appropriate unit to which
recognition was granted, no contrary evidence was ad-
duced, and I therefore fmd that this unit was so
appropriate. Although majority representation was denied,
the fact is that the Union was duly recognized at the time
material herein and I fmd that it was the representative of
these employees within the meaning of Section 9(a) of the
Act.
B. Contractual History
The Union and Respondent were signatories to an
agreement from June 1970 through May 31, 1973, which
provided for payment by the employer of certain fringe
benefits to an established trust fund. There were also
certain restrictions as to the subcontracting of work duly
set forth therein.
The master trust declaration, referred to in the contract,
provides for the payment therefrom for pension, retire-
ment, disability, or death benefits to covered employees.
Section 48(a) of the trust fund agreement states as follows:
The Trustee shall have the power to require any
Employer and an Employer when so required shall
furnish to the Trustees, such information and reports as
they may require in the performance of their duties
under this Declaration of Trust. The Trustees, or any
authorized agent or representatives of the Trustees,
shall have the right at all reasonable times during
business hours to enter upon the premises of the
Employers and to examine and copy such of the books,
records, papers and reports of said Employers relating
to the hours and wages of Employees as may be
necessary to permit the Trustees to determine whether
said Employers are making full payment to the
Trustees of the amounts required by the aforemen-
tioned Collective Bargaining Agreement.
A later contract covered the period from June 1, 1973,
through May 31, 1974, and the Union has not since
represented the employees of Respondent. The latter
contract provides in section 10 thereof as follows:
(10-13) ... Each Employer party hereto agrees that
the Joint Labor Management Committee & Trust Fund
have the right to have an independent certified public
accountant audit the books and accounts for the
purpose of. ascertaining the correct amount of money
paid to the trust funds as stated in the current
Collective Bargaining Agreement. When an Employer
is found to have a deficiency in the audit in the amount
of ten percent (10%) of the total contribution for the
period of such audit, (audit will be a two year period) the
Employer shall immediately pay the cost of such audit
as well as the additional contribution owed to all funds
under the Collective Bargaining Agreement. Otherwise
the cost of such audits shall be paid by the Funds listed
in the contract. [Emphasis supplied.]
C. The Request To Audit the Books of Respondent
Clayton Smith, business manager of the Union and a
trustee of the trust committee, requested early in 1972 that
the trust administrator conduct an audit of the books of
Respondent so as to ascertain whether the appropriate
payments were being made by Respondent to the trust
fund.
In February 1972, Trust Fund Administrator John
Koethe retained Jack Schwartz, certified public accoun-
tant, to conduct this audit; Schwartz has experience in
precisely this area. Smith, as he testified, met with Norman
Moniz of Respondent on August 1, 1973, gave him a copy
of the new contract and explained various changes therein.
He picked up a signed copy thereof some 7 to 10 days later.
Schwartz ultimately was able to conduct the audit in
October 1973 and inspected various payroll records of
Respondent. However, his request to examine two of
Respondent's records, namely its cash disbursement
records and general ledger , so as to ascertain whether
appropriate payments were being made to the fund was
rejected by Moniz. Schwartz uncontrovertedly testified
herein that these two records are most relevant to an audit.
The general ledger is vital because it is a summary of all
the books of a company and may reveal the existence of
books which have not been furnished for an audit. The
cash disbursement records are also relevant because, on
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion, they reveal that payments are made to people
performing bargaining unit work who are listed as
subcontractors or outside labor. This is arguably work
covered by the contract for which appropriate payments
should be made to the fund; indeed Schwartz, as he
testified, had some reservations in the latter area. It is the
inspection of these, two records that the General Counsel
seeks herein as a remedy.
D. Concluding Findings
As found, the trust committee requested an audit for
plausible reasons to determine whether appropriate pay-
ments were being made to the trust fund. Accountant
Schwartz was furnished various records, but was denied
access to two records which, as he uncontrovertedly
testified, would have disclosed the existence of any
aberrations and therefore would have enabled the Union to
carry out its function and obligation as the bargaining
representative of the affected employees.
A labor organization, as the Union herein, is entitled to
the inspection of documents to verify that ordained
contributions, as prescribed by contract, are being made
pursuant to these contractual provisions. I find that by
failing or refusing to provide access to the records
described above, namely the cash disbursement records
and the general ledger, Respondent has engaged in unfair
labor practices violative of Section 8(aX5) and, derivative-
ly, Section 8(a)(1) of the Act. See Murray Bagdasarian,
d/b/a Michael Rossi Carpet Co., 208 NLRB 747 (1974).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. L & M Carpet Contractors, Inc., is an employer
within the meaning of Section 2(2) of the Act.
2. Carpet and Soft Tile Union Local No. 1237,
International Brotherhood of Painters, Decorators and
Paper Hangers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All nonsupervisory foremen, installers , and sewers,
employed by Respondent at its Sacramento facility,
excluding all other employees, guards, and supervisors,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At the time material herein, the Union was the
exclusive representative of the employees in the above-
described appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to furnish its cash disbursement records
and general ledger to the Union for an audit, as provided
by the existing collective-bargaining agreement, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
6. The aforesaid unfair labor practices are unfair labor
practices' affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
TILE REMEDY
Having found that Respondent, in a limited- area, has
engaged in unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
The accountant of the Union commenced the audit of
Respondent's books in October 1973. The contract
provided for an audit for the preceding 2 years and I shall
therefore recommend, as urged by the General Counsel,
that Respondent provide the Union or its agents with the
two requested documents for the period from October 1971
through October 1973.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1
The Respondent, L & M Carpet Contractors, Inc.,
Sacramento, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from furnishing Carpet and Soft
Tile Union Local No. 1237, International Brotherhood of
Painters, Decorators and Paper Hangers of America, or its
agents, for an audit, with its cash and disbursement records
and general ledger for the period from October -1971
through October 1973.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Furnish to Carpet and Soft Tile Union Local No.
1237, International Brotherhood of Painters, Decorators
and Paper Hangers of America, or its agents, for
inspection, its cash disbursement records and general
ledger for the period from October 1971 through October
1973.
(b) Post at its premises at Sacramento, California, copies
of the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed' by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by-Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
2 In the event the Board's Order is enforced by a Judgment-ofa United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."