Royal Components, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1995

317 N.L.R.B. 971 (N.L.R.B. 1995)

971
317 NLRB No. 137
ROYAL COMPONENTS, INC.
1 The Respondent filed a motion to reopen the record and receive
further evidence. The General Counsel filed a response opposing the
motion. The Respondent’s motion is granted to the extent that the
documents sought to be introduced establish that, after the close of
the hearing, copies of the Respondent’s motion for special permis-
sion to appeal from a ruling of the administrative law judge with
supporting memorandum, and a cover letter requesting that the judge
consider these documents as the Respondent’s posthearing brief,
were delivered to the judge’s Connecticut address. A copy of the Re-
spondent’s motion for special permission to appeal from a ruling of
the administrative law judge and the supporting memorandum are
being considered as part of the record and have been reviewed along
with the Respondent’s exceptions, supporting brief, and reply brief.
2 In adopting the judge’s recommended Order that the Respondent
cease and desist from maintaining and giving effect to the union-se-
curity clause, which unlawfully requires employees to become union
members prior to the end of the statutory grace period, we rely on
Wine & Liquor Store Employees Local 122 (Oz Liquor), 261 NLRB
1070 (1982).
1 Hereinafter, the National Labor Relations Board will be referred
to as the Board, the International Union of Operating Engineers,
Local 150 Operating Engineers, the Chicago and Northeast Illinois
District Council of Carpenters, AFL–CIO, United Brotherhood of
Carpenters and Joiners of America, as Carpenters Union, the Na-
tional Labor Relations Act as the Act, and Royal Components, Inc.,
as either Employer or Respondent.
2 The Operating Engineers were initially complaining about the se-
curity clause because it alleged it was being applied to certain of Re-
spondent’s employees who operated a ‘‘boom truck,’’ and who were
the subject of an organizing effort by the Operating Engineers. Prior
to the filing of the charge, the Carpenters Union disclaimed any rep-
resentation of these employees who were not performing carpenter’s
work. As the Respondent continued to maintain the involved security
clause in its contract with the Carpenters Union, the Operating Engi-
neers proceeded to file the involved charge.
Royal Components, Inc. and International Union of
Operating Engineers, Local 150, AFL–CIO and
Chicago and Northeast Illinois District Council
of Carpenters, AFL–CIO, United Brotherhood
of Carpenters and Joiners of America, Party to
the Contract. Case 13–CA–32429
June 26, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On March 9, 1995, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Party to the Contract filed
briefs in answer to the Respondent’s exceptions, and
the Respondent filed a reply brief to the General Coun-
sel’s and the Party to the Contract’s answering briefs.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, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Royal Components, Inc.,
Markham, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.2
Librado Arreola, Esq., for the General Counsel.
Douglas A. Darch and Peter Andjelkovich, Esqs., of Chicago,
Illinois, for the Respondent.
Louis E. Sigman and Brian Hlavin, Esqs., of Chicago, Illi-
nois, for the Charging Party.
Daniel McAnally, Esq., of Chicago, Illinois, for the Party in
Interest.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Inter-
national Union of Operating Engineers, Local 150, AFL–CIO
filed the instant charge on April 14, 1994.1 The charge al-
leges that the Employer violated Section 8(a)(3) of the Act
by maintaining an unlawful security clause in its collective-
bargaining agreement with the Carpenters Union.2 The Re-
gional Director for Region 13 issued a complaint and notice
of hearing on May 24, 1994.
Hearing was held in this matter in Chicago, Illinois, on
January 20, 1995. Briefs were received from the General
Counsel and the Carpenters Union on or about February 10,
1995. Based on the entire record, including my observation
of the demeanor of the witnesses, and after consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Markham, Illinois, where it engages in the manu-
facture and assembly of wall, deck, and roofing components
used in the housing construction industry. It admits and I
find that at all material times it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Charging Party Operating Engineers and the Party in
Interest Carpenters Union are both labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue Presented by the Complaint and the Facts
Relating to that Issue
The complaint alleges that Respondent is a party to a col-
lective-bargaining agreement with the Carpenters Union,
which contract contains a union-security clause which is un-
lawful as it requires membership in the Carpenters Union
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The appropriate unit of employees involved is described:
All regular full-time production employees performing carpentry
work employed at the Employer’s facility located at 2210 W.
162nd Street in Markham, Illinois, but excluding all office
clericals, truck drivers, fork lift operators, technicians who are
computer designers and layout men, guards, and supervisors as
defined in the Act.
4 There are no credibility determinations to be made with respect
to the complaint allegations. Therefore, as the brief filed by the Gen-
eral Counsel succinctly sets out the material facts and the applicable
law, it has been utilized as the basis for this decision.
5 Although the Carpenters Union takes the position that the collec-
tive-bargaining agreement has been in effect since March 14, 1990,
Respondent asserts it was released from the contract in 1993. The
parties are presently involved in litigation in Federal District Court
regarding Respondent’s failure to make certain contributions to the
benefit and pension funds. It is, however, of no consequence whether
the contract was readopted, as Respondent claims, or if Respondent
agreed to be bound by the contract once again, since Respondent ad-
mits that the collective-bargaining agreement has been in effect since
February 1994.
6 Sec. 8(f) of the Act sanctions agreements by employers engaged
primarily in the building and construction industry to make an agree-
ment covering employees engaged in the building and construction
industry where such agreement requires as a condition of employ-
ment, membership in a labor organization after the seventh day fol-
lowing the beginning of such employment or the effective date of
the agreement. As noted earlier, there is no contention by any party
that the involved unit is engaged in the building and construction in-
dustry within the meaning of Sec. 8(f).
within 7 days of becoming employed by Respondent.3 Re-
spondent is located in Markham, Illinois, and has been en-
gaged in the manufacture of housing components, specifi-
cally portions of walls, decks, and roofs, which it delivers to
construction sites.4 Respondent is not engaged in the con-
struction industry within the meaning of Section 8(f) of the
Act. Moreover, Respondent’s employees are not engaged in
performing construction work. On March 14, 1990, Respond-
ent entered into a collective-bargaining agreement with the
Carpenters Union. Sometime thereafter, in about February
1994, Respondent then readopted the same collective-bar-
gaining agreement with the Carpenters Union, which cur-
rently remains in effect and will expire on May 31, 1995.5
Article II, section 2.2 of the collective-bargaining agreement
entitled ‘‘Union Security’’ reads as follows:
All other employees covered by this Agreement
shall, as a condition of employment, become members
of the UNION after the seventh (7) day of, but not later
than the eighth (8) day following the beginning of, such
employment, or the effective date of this Agreement,
whichever is later and they shall maintain such mem-
bership as a condition of continued employment as
hereinafter provided.
The collective-bargaining agreement also contains a sav-
ings clause in article XXXIII, which states as follows:
33.1 Should any part of or any provision herein con-
tained by rendered or declared invalid by reason of any
existing or subsequent enacted legislation, or by any de-
cree of a court of competent jurisdiction, such invalida-
tion of such part or portion of this Agreement shall not
invalidate the remaining portions thereof; provided,
however, upon such invalidation the parties signatory
hereto agree to immediately meet to renegotiate such
parts or provisions affected.
The Employer wanted to provide testimonial evidence of
the majority status of the Carpenters Union at the time the
contract was signed in 1990 and thereafter as of February
1994, in order to argue that the whole collective-bargaining
agreement is void ab initio. In support of its argument, Re-
spondent asserted several affirmative defenses, including an
argument that the invalid union-security clause constitutes a
violation of Section 8(a)(2), and that any liability for improp-
erly deducted dues lies with the Carpenters Union and not
Respondent. Counsel for the General Counsel did establish,
at the instant hearing, a prima facie violation of Section
8(a)(3) as alleged in the complaint and notice of hearing, and
objected to the presentation of any further testimony regard-
ing Respondent’s affirmative defenses, i.e., that an 8(a)(2)
violation occurred, on the grounds that such evidence is irrel-
evant to the issues presented by the complaint. I agreed with
this position and allowed the Respondent to present certain
evidence as an offer of proof to support a special appeal of
my ruling. Respondent filed such an appeal shortly after the
close of the hearing. On February 21, 1995, the Board denied
the Respondent’s request for special permission to appeal
without prejudice to renewal in the exceptions process.
B. Conclusions with Respect to the Alleged 8(a)(3)
Violation and the Respondent’s Affirmative Defenses
Section 8(a)(3) of the Act provides that employers may
enter into collective-bargaining agreements which require, as
a condition of employment, that employees become members
of the union on or after the 30th day following the beginning
of such employment or the effective date of such agreement.6
The Board has held that an employer violates Section
8(a)(3) of the Act where it maintains a union-security clause
that allows a 7-day grace period, instead of the 30-day period
required by the statute. Kansas City Riverboat, 285 NLRB
No. 65 (Aug. 31, 1987) (not reported in Board volumes). It
is of no consequence in this case that no evidence of the en-
forcement of the unlawful union-security clause was prof-
fered. Paragon Products Corp., 134 NLRB 662 (1961). The
Respondent may argue that the instant security clause is a
forbidden provision so basic to the whole scheme of the con-
tract and so interwoven with all of its terms that the contract
must stand or fall as an entity. However, the Board in Kan-
sas City Riverboat, supra, only invalidated the unlawful
union-security provision rather than the entire contract.
Moreover, the collective-bargaining agreement in the instant
case contains a ‘‘savings clause,’’ as set forth above, which
clause, according to established precedent, preserves the re-
maining portions of a collective-bargaining agreement when
one provision is rendered invalid. NLRB v. Rockaway News
Supply Co., 345 U.S. 71 (1953). Thus it is evident that the
mere maintenance of the 7-day grace period instead of the
required 30-day grace period in the instant union-security
clause is violative of Section 8(a)(3).
Respondent attempted, in the instant hearing, to introduce
evidence that the Carpenters Union lacked majority status at
the time the contract at issue was executed in March 1990.
However, that asserted lack of majority status was not chal-
lenged within the 6-month period that began running at the
973ROYAL COMPONENTS, INC.
7 At no time have the parties filed any unfair labor practice
charges before the NLRB alleging that the contract is invalid or is
being violated.
8 There is nothing precluding the Respondent from filing an unfair
labor practice charge challenging the Union’s majority status, if it
has legitimate and objective proof that that is the fact. If it does so,
the Union would properly be put on notice and may defend its status
if it chooses to do so. The backdoor attack mounted by Respondent
here is not sustainable.
9 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.
time of the execution of the contract. Thus, that evidence is
now stale and time barred since it occurred outside the
Board’s 6-month statute of limitations period.7 Respondent
must therefore honor the contract since it is a lawful con-
tract. Machinists Local 1424 (Bryan Mfg. Co.), 362 U.S. 411
(1960).
Respondent’s February 1994 actions, however, are charac-
terized, whether as a readoption of the previously existing
contract or by the use of another verb, Respondent was none-
theless agreeing to be bound by, and abide by, the terms of
the original contract signed in March 1990. The Supreme
Court in Bryan Mfg. Co., supra, has held that a union’s ma-
jority status may not be attacked even when a new agreement
is entered into between the contracting parties, when such
original recognition occurred more than 6 months prior to the
execution of the new agreement, since the original execution
occurred outside the Board’s 10(b) period. In Bryan Mfg.
Co., the employer and union had entered into a collective-
bargaining agreement on August 10, 1954, and subsequently
entered into a new agreement on August 30, 1955, which re-
placed the old agreement. The Supreme Court therein deter-
mined that since the original contract execution was beyond
the Act’s statute of limitations, issues concerning the original
recognition could not be raised at the time that the new
agreement was executed. Thus in the present case, even if
the Carpenters Union did not represent a majority of Re-
spondent’s employees when the original contract was signed
in March 1990, that fact may no longer be raised by Re-
spondent as an affirmative defense in the instant proceeding.
To allow Respondent to reach back to March 1990 when the
collective-bargaining agreement was initially executed, and
allow Respondent to challenge the Carpenters Union’s pre-
sumed majority status at that time is contrary to the Supreme
Court’s pronouncements in Bryan Mfg. Co.
Respondent claims that, in addition to having violated Sec-
tion 8(a)(3), it has also violated Section 8(a)(2). Respondent
wants to broaden the complaint in hopes of arguing that the
entire collective-bargaining agreement is rendered unlawful
and ineffective ab initio. However, it has long been estab-
lished that only the General Counsel may amend its com-
plaint. West Virginia Baking Co., 299 NLRB 306 (1990);
Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB
766 (1989).
Respondent also attempts to argue that the present facts
support a finding of a violation of Section 8(a)(1) and (2) of
the Act as found in Julius Resnick, Inc., 86 NLRB 38 (1949),
and Promenade Garage Corp., 314 NLRB 172 (1994). Yet,
those cases are readily distinguishable. The Board invalidated
entire contracts in those two cases because it was faced with
a situation where an incumbent union had a contract with the
employer therein and then that same employer entered into
a contract with a competing union covering the same em-
ployees in the unit already represented by the incumbent.
That is clearly not the case here. Respondent has not been
faced with a challenge from a competing union, nor has it
entered into a contract with a competing union, thereby war-
ranting an invalidation of the contract signed with such com-
peting union. Not only are the cited cases inapposite, there
are no other Board cases which stand for the proposition that
the entire contract must be invalidated in the instant case.8
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Operating Engineers and the Carpenters Union are
labor organizations within the meaning of Section 2(5) of the
Act.
3. Respondent has violated Section 8(a)(3) and (1) of the
Act by maintaining an unlawful union-security clause con-
taining a 7-day grace period in its collective-bargaining
agreement with the Carpenters Union, where the work per-
formed by the involved unit does not fall within the building
and construction industry proviso of Section 8(f) of the Act.
4. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(a)(3) and (1) of the Act, it is ordered
that it cease and desist therefrom and post an appropriate no-
tice to employees.
Based on these findings of fact, conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Royal Components, Inc., Markham, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a 7-day grace period in the union-security
clause in its collective-bargaining agreement with Chicago
and Northeast Illinois District Council of Carpenters, AFL–
CIO, United Brotherhood of Carpenters and Joiners of Amer-
ica.
(b) Encouraging membership in Chicago and Northeast Il-
linois District Council of Carpenters, AFL–CIO, United
Brotherhood of Carpenters and Joiners of America, or any
other labor organization, by maintaining a union-security
clause in its collective-bargaining agreement with the Union,
which requires its employees as a condition of employment,
to join the Union before the 30-day grace period required by
Section 8(a)(3) of the Act.
(c) Giving effect to the union-security provision in its col-
lective-bargaining agreement with the Chicago and Northeast
Illinois District Council of Carpenters, AFL–CIO, United
Brotherhood of Carpenters and Joiners of America which
calls for a 7-day grace period for membership because the
work does not fall within the building and construction in-
dustry proviso of Section 8(f) of the Act.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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
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.’’
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Post at its Markham, Illinois facility copies of the at-
tached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps it has taken to com-
ply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT maintain a 7-day grace period in the union-
security clause in our collective-bargaining agreement with
Chicago and Northeast Illinois District Council of Car-
penters, AFL–CIO, United Brotherhood of Carpenters and
Joiners of America.
WE WILL NOT encourage membership in Chicago and
Northeast Illinois District Council of Carpenters, AFL–CIO,
United Brotherhood of Carpenters and Joiners of America, or
any other labor organization, by maintaining a union-security
clause in our collective-bargaining agreement with the Union,
which requires our employees as a condition of employment,
to join the Union before the 30-day grace period required by
Section 8(a)(3) of the Act.
WE WILL NOT give effect to the union-security provision
in our collective-bargaining agreement with the Chicago and
Northeast Illinois District Council of Carpenters, AFL–CIO,
United Brotherhood of Carpenters and Joiners of America
which calls for a 7-day grace period for membership because
the work does not fall within the building and construction
industry proviso of Section 8(f) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
ROYAL COMPONENT, INC.