Mathews-Carlsen Body Works

National Labor Relations Board - Board Decisions

Apr 16, 1998

325 N.L.R.B. 661 (N.L.R.B. 1998)

661
325 NLRB No. 114
MATHEWS-CARLSEN BODY WORKS
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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. We also find that the
judge’s credibility findings are sufficiently specific to permit a ruling
on the General Counsel’s motion to withdraw the complaint.
2 In deciding to move for withdrawal of the complaint, the General
Counsel concluded that the Respondent had made contractually re-
quired benefit fund payments for only a portion of the employees
in the bargaining unit, and that the Union knew or should have
known of this prior to the beginning of the 10(b) period. We con-
clude that the General Counsel reasonably exercised his prosecutorial
discretion in this regard and that the judge properly granted the mo-
tion. See Moeller Bros. Body Shop, 306 NLRB 191 (1992) (barring
recovery on complaint allegations covering periods more than 6
months before filing of charge alleging failure to apply contract to
certain unit employees on grounds of untimeliness, where union, in
exercise of reasonable diligence, should have become aware of fail-
ure years before charge was filed).
1 In order to decide this motion certain factual findings and credi-
bility resolutions were necessary. The credibility resolutions have
been derived from a review of the entire testimonial record and ex-
hibits, with due regard for the logic of probability, the demeanor of
the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962). As to those witnesses testifying in contradic-
tion to the findings here, their testimony has been discredited, either
as having been in conflict with credited documentary or testimonial
evidence or because it was in and of itself incredible and unworthy
of believe.
Mathews-Carlsen Body Works, Inc. and Machinists
and Aerospace Workers Local Lodge 1414,
International Association of Machinists and
Aerospace Workers, AFL–CIO. Cases 32–CA–
15537 and 32–CA–15736
April 16, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On May 22, 1997, Administrative Law Judge Jay R.
Pollack issued the attached decision granting the Gen-
eral Counsel’s posttrial motion to withdraw the com-
plaint. The Union filed exceptions and a supporting
brief, the Respondent filed a brief in response, and the
General Counsel filed a response to the Union’s excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions, briefs, and response and has
decided to affirm the judge’s rulings, findings,1 and
conclusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
remands the case to the Regional Director for with-
drawal of the complaint.
Kenneth Ko, Esq., for the General Counsel.
Robert J. Bekken and Warren L. Nelson, Esqs. (Fisher &
Phillips), of Newport Beach, California, for the Respond-
ent-Employer.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Charging Party-
Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard these
consolidated cases in trial on March 7 and 10, 1997. There-
after, on March 19, 1997, the General Counsel filed a motion
to withdraw the consolidated complaint based on his deter-
mination that continued pursuit of the complaint was not
warranted. On April 30, 1997, the General Counsel filed a
statement of reasons for its motion to withdraw the com-
plaint. On May 7, 1997, the Union filed a brief in opposition
to the General Counsel’s motion. On May 13, the General
Counsel and the Respondent filed answering briefs. On May
20, the Union filed a concluding reply brief.
I. THE GENERAL COUNSEL’S MOTION
The complaint in this matter alleges that Mathews-Carlsen
Body Works (the Respondent) violated Section 8(a)(1) and
(5) of the National Labor Relations Act by failing to apply
preexisting contractually based conditions to a substantial
number of employees performing bargaining unit work and
by unlawfully withdrawing recognition from the Union. In
response to these allegations, the Employer contends that,
with the Union’s acquiescence, it has historically treated its
various contracts with the Union as members only agree-
ments and, therefore, since a members only bargaining unit
is inappropriate, the legal basis for an 8(a)(5) violation is ab-
sent. See, e.g., Arthur Sarnow Candy Co., 306 NLRB 213
(1992). After the hearing had closed, the General Counsel
filed his motion seeking to withdraw the complaint based on
the record evidence showing that the Respondent-Employer
had treated its agreements with the Union as members only
agreements and that if the Union had ‘‘exercised any sort of
reasonable diligence in policy its contracts with the Em-
ployer it long ago would have discovered that situation.’’
All parties have been afforded full opportunity to appear,
to introduce evidence, and to examine and cross-examine
witnesses. Further all parties have filed written legal argu-
ments regarding the motion to withdraw the complaint. On
the entire record, from my observation of the demeanor of
the witnesses,1 and having considered the posthearing argu-
ments of the parties, I grant the General Counsel’s motion
to withdraw the complaint.
II. FACTUAL FINDINGS
The Respondent and the Union were party to a series of
collective-bargaining agreements covering the Respondent’s
employees at its body shop in Palo Alto, California. The evi-
dence establishes that the Union knew that the Respondent
hired ‘‘sleepers’’ (employees hired but not reported to the
Union or the benefit trust funds) early in the bargaining rela-
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662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tionship. Lee Stafford, the union representative who serviced
the Respondent’s shop from 1974 to 1986, testified that he
was aware that the Employer had ‘‘sleepers’’ from the day
he took over the shop. Don Barbe, the current business rep-
resentative, testified that when he took over the shop from
Charles Netherby, Netherby told him that he found a ‘‘sleep-
er’’ in the shop and cautioned Barbe to ‘‘always keep an eye
on that place.’’ Glenn Gandolfo who negotiated with the Re-
spondent during the time period at issue, testified that he had
heard that ‘‘there was a problem with sleepers’’ at the Re-
spondent’s shop.
The credible evidence revealed that early in the relation-
ship, the Respondent directed employees to hide from the
Union so that it could have a longer time before having to
pay the fringe benefit payments on behalf of new hires.
However, for at least six, the Respondent did not do so.
When the Respondent hired new employees, Marshall Mat-
hews, managing partner, gave the employees the option of
joining the Union and receiving union benefits or not joining
and receiving health benefits pursuant to the Employer’s
plan. A majority of the employees chose not to join the
Union. The employees did not hide from the union represent-
atives. Two employees testified that they observed Barbe vis-
iting the shop and talking to the union members. One em-
ployee testified that Barbe approached him about joining the
Union and that he told Barbe that he was not going to join
the Union. The employees worked in the shop and wore uni-
forms identifying themselves as employees of the Respond-
ent. By the time of the hearing, Barbe had not visited the
shop for 3 to 3-1/2 years. During the time period that Barbe
visited the shop, the Respondent employed 12 employees but
only reported 5 employees to the Union.
The Union contends that the Respondent actively con-
cealed the ‘‘sleepers.’’ The credible evidence reveals that the
Respondent did conceal the sleepers in the 1970s and early
1980s. However, since at least 1989, the Respondent, appar-
ently believing that it only had to make fringe benefit pay-
ments on behalf of union members, did not conceal employ-
ees from the Union. For example, in 1991 Mathews wrote
the pension fund and Barbe seeking reimbursement for pen-
sion benefits paid for an employee who was not a union
member. Barbe helped Mathews get that reimbursement by
writing that the employee was employed by another business
owned by Mathews. However, Mathews did not own another
business and the employee was, in fact, employed under the
Union’s collective-bargaining agreement. Mathews did not in
any way indicate that the employee was not employed in the
bargaining unit. He clearly stated that the employee was not
a union member and had not been a member during his em-
ployment with the Respondent. The employee had worked
for the Respondent from 1989 to 1991.
The Union contends that it enforced the collective-bargain-
ing agreement when it caught sleepers. The credible evidence
reveals that Barbe visited the shop when a majority of the
employees were not complying with the union-security
clause and were not covered by the fringe benefit plans.
However, Barbe did not take steps to require the Respondent
to apply the contract to all the bargaining unit employees.
Barbe not only permitted the Respondent to seek reimburse-
ment for pension payments to a nonmember-employee, but
assisted the Respondent in obtaining such reimbursement.
The Union argues that because the Employer was hiding
employees, if had asked for a list of employees, the Re-
spondent would have provided a list of only union members.
I find that for at least 6 years the Respondent did not conceal
employees from the Union. Employees wearing uniforms
with the Respondent’s logo were working in the shop when
Barbe visited. The record indicates that nothing prevented
Barbe from talking to the employees in the shop. Further,
Mathews made it clear to Barbe that he did not believe he
was required to make fringe benefit contributions on behalf
of nonmembers.
The Union contends that it believed that the nonunion em-
ployees were employed by another business owned by Mat-
hews. Mathews did not operate another business. He had a
storage facility for his privately owned vintage cars. How-
ever, that storage area employed no employees. The body
shop employees all wore uniforms identifying themselves as
employees of the Respondent’s body shop. Even if Barbe
saw an employee entering the storage area, that employee
would have been wearing a uniform bearing the Respond-
ent’s logo. Thus, I find that the Union could not reasonably
believe that some of the employees were employed by an-
other business entity.
III. CONCLUSIONS
In Moeller Bros. Body Shop, 306 NLRB 191 (1992), the
Board held that a union is required to exercise ‘‘reasonable
diligence’’ in policing a contract and monitoring an employer
and that it will be charged with constructive knowledge of
what it would have learned had it exercised such diligence.
I find that in this case had the Union exercised reasonable
diligence, the Union would have become aware that the Re-
spondent had not made fringe benefit payments on behalf of
a majority of the employees. Further, the union-security
clause had not been applied to a majority of the employees.
The Respondent was treating its collective-bargaining agree-
ments as members only agreements. I find no evidence that
the Respondent sought to hide its members only treatment of
its contracts. Mathews’ letters regarding the reimbursement
of pension benefits were clearly based on the nonmember-
ship of the employee.
In Moeller Bros., supra at 193, the Board further stated:
While a union is not required to aggressively police its
contracts aggressively in order to meet the reasonable
diligence standard, it cannot with impugnity ignore an
employer or unit, as the Union in this case did, and
then rely on its ignorance of events occurring at the
shop to argue that it was not on notice of an employer’s
unilateral changes. This is not a case where information
regarding [this contract] is only in the hands of the em-
ployer, where an employer has concealed its mis-
conduct, or where the size of an employer’s operation
prevents ready discovery of the misconduct.
The Union argues that the Respondent concealed its mis-
conduct. I find that the evidence does not support this argu-
ment. The Respondent did not conceal the number of em-
ployees that it employed. That should have been evident to
Barbe on his visits. The size of the operation should have
clearly indicated to Barbe that there were more than five em-
ployees. In fact there were 12. Mathews, apparently believing
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663MATHEWS-CARLSEN BODY WORKS
2 All motions inconsistent with this recommended Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
that he did not have to pay fringe benefits for nonmembers,
made no attempt to conceal the fact that he made benefit
payments only on behalf of union members.
Accordingly, as the evidence revealed that Moeller Bros.
and Arthur Sarnow Candy required dismissal of this case, the
General Counsel properly sought to withdraw the complaint.
Therefore, I grant the General Counsel’s motion.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The case is remanded to the Regional Director for with-
drawal of the complaint.
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