Yeager, Clarence R., Distributing, Inc.

National Labor Relations Board - Board Decisions

May 13, 1982

261 N.L.R.B. 847 (N.L.R.B. 1982)

YEAGER DISTRIBUTING, INC
Clarence R. Yeager Distributing, Inc. and United
Brotherhood of Carpenters and Joiners of
America, Arizona State District Council of Car-
penters and its Constituent Locals: 906, 1061,
1089, 1100, 1153, 1216, 1327, 2763, 857 and
Millwright Locals 1914 and 1182.1 Case 28-
CA-5578
May 13, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
Upon a charge filed on October 26, 1979, by
United Brotherhood of Carpenters and Joiners of
America, Arizona State District Council of Car-
penters and its constituent Locals: 906, 1061, 1089,
1100, 1153, 1216, 1327, 2763, 857 and Millwright
Locals 1914 and 1182, herein collectively called the
Union, and duly served on Clarence R. Yeager
Distributing, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 28,
issued a complaint on January 30, 1981,2 against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5), (3), and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge and the complaint and notice of hear-
ing before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent is
now and has been at all material times a party to
an agreement which provides for the recognition of
the Union as the exclusive representative of certain
of Respondent's employees in a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. The complaint
further alleges that Respondent violated Section
8(a)(5) and (1) by: (1) repudiating the current col-
lective-bargaining agreement; (2) withdrawing rec-
ognition of the Union; and (3) unilaterally changing
existing terms and conditions of employment of its
employees in the appropriate unit by refusing to
abide by the collective-bargaining agreement re-
garding wage rates, fringe benefit contributions,
hiring hall provisions, and submission of monthly
reporting forms to the Arizona health, welfare,
pension, vacation, and apprenticeship funds.
The complaint also alleges that Respondent's
acts and conduct described above violated Section
i The name of the Union appears as corrected at the heanng in Case
28-RM-379.
2 On June 17, 1981, the Regional Director for Region 28 issued an
amendment to the complaint.
261 NLRB No. 108
8(a)(3) and (1), as the acts discriminated in the hire
and tenure and terms and conditions of employ-
ment of those employees of Respondent who were
not union members, thereby discouraging member-
ship in the Union.
Respondent filed its answer to the complaint ad-
mitting in part, and denying in part, the allegations
in the complaint.
On July 30, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 6, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member
panel. 3
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent repeats
the argument, first raised in the representation pro-
ceeding, that the 1979-82 contract to which Re-
spondent agreed to be bound by signing memoran-
dum agreements with the Union,4 constitutes an
unenforceable contract which cannot serve as a bar
to the RM petition filed in Case 28-RM-379. Fur-
ther, Respondent contends that the Regional Direc-
tor erroneously found that the recognition clause
of the 1979-82 contract sets forth an appropriate
unit. 5 Respondent argues that substantial issues of
fact warranting further hearing exist in this case.
The General Counsel argues that all material issues
have been previously presented to, and decided by,
the Board, and that there are no litigable issues of
fact requiring a hearing. We agree with the Gener-
al Counsel.
s Chairman Van de Water did not participate in the underlying repre-
sentation case, 28-RM-379, and is participating here for institutional rea-
sons.
4 The most recent memorandum agreement was executed by Respond-
ent and the Union under date of January 25, 1977
5 Official notice is taken of the record in the representation proceed-
ing, Case 28-RM-379, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Senries 8, as amended See
LTV Flectrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Ca, 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Intertype Co v. Penello, 269 F Supp. 573
(D.C.Va. 1967); Folletr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our review of the record herein, including the
record in Case 28-RM-379, discloses that the Re-
gional Director for Region 28 issued his Decision
and Order on February 12, 1980. In his decision,
the Regional Director found Respondent was
bound by the 1979-82 collective-bargaining agree-
ment negotiated by the Union and the Associated
General Contractors, Arizona Chapter, Associated
General Contractors of America, Inc., Arizona
Building Chapter (herein Associations). Respond-
ent, in 1977, had signed a memorandum agreement
with the Union in which it agreed to be bound by
collective-bargaining agreements between the As-
sociations and the Union. Thus, the Regional Di-
rector concluded that a valid collective-bargaining
agreement existed between Respondent and the
Union and said agreement constituted a bar to the
election petitioned for in Case 28-RM-379. In so
doing, the Regional Director implicitly found that
the unit set forth in the collective-bargaining agree-
ment between the Union and the Associations con-
stituted an appropriate unit. Further, in the under-
lying proceeding, Respondent acknowledged, and
the Regional Director found, that Respondent only
applied the economic terms of its collective-bar-
gaining agreements to employees who indicated
that they were union members. In regard to em-
ployees who did not affirmatively state they were
union members, Respondent applied a different set
of wages and benefits established by it without
consultation with the Union. Finding the Union
had persisted in its efforts to represent all employ-
ees, the Regional Director rejected Respondent's
contention that the collective-bargaining agreement
was a "members only" contract.
Thereafter, Respondent filed a request for
review of the Regional Director's Decision and
Order, and the Board, on April 22, 1980, granted
the request for review. On September 24, 1980, the
Board, with certain modifications, affirmed the Re-
gional Director's Decision and Order and dismissed
the petition filed in Case 28-RM-379. On October
6, 1980, Respondent filed a motion for reconsider-
ation and to reopen the record, which was denied
by the Board on December 17, 1980.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances, a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding."
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
6 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment. 7
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, an Arizona corporation with an office
and place of business in Phoenix and Tucson, Ari-
zona, where it is presently, and has been at all
times material herein, engaged in the business of
nonretail sale and installation of garage doors. In
the course and conduct of its business operations,
Respondent purchases and receives goods and ma-
terials valued in excess of $50,000 directly from
firms located outside the State of Arizona.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLIVED
United Brotherhood of Carpenters and Joiners of
America, Arizona State District Council of Car-
penters and its constituent Locals: 906, 1061, 1089,
1100, 1153, 1216, 1327, 2763, 857 and Millwright
Locals 1914 and 1182, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
Commencing in September 1962, Respondent ex-
ecuted a series of memorandum agreements with
the Union providing, inter alia, that Respondent
would be bound by existing and subsequently nego-
tiated collective-bargaining agreements between the
Union and the Associations. The current 1979-82
agreement provides, inter alia, for the recognition
of the Union as the exclusive collective-bargaining
representative of Respondent's installers, service-
7 Inasmuch as the remedy would not be affected by a finding that Re-
spondent's conduct violated Sec. 8(a)(3) as well as 8(a)(5), there is no
need to address the General Counsel's allegation that it did. V M Con-
strucion Co., Inc., 241 NLRB 584, 587 (1979).
848
YEAGER DISTRIBUTING, INC.
men, and apprentice employees in a unit of em-
ployees described in the following manner:
That the Contractors hereby recognize the
Unions who are signatory hereto as the sole
and exclusive collective-bargaining representa-
tives of all employees of the Contractors signa-
tory hereto over whom the Unions have juris-
diction, as such is defined by the Building and
Construction Trades Department of the
American Federation of Labor-Congress of
Industrial Organizations, as of the date of this
Agreement, excluding executives, superinten-
dents, assistant superintendents, civil engineers
and their helpers, master mechanics, all super-
visory employees such as general foremen, ti-
mekeepers, messenger boys, and office work-
ers, except as otherwise herein covered.
The unit of employees described above constitutes
a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the
Act.
B. The Representative Status of the Union
The Union is now, and has been at all material
times, the exclusive representative of the employees
in the above-described unit within the meaning of
Section 9(a) of the Act.
C. The Violations
Respondent has unilaterally changed existing
terms and conditions of employment of its employ-
ees in the unit described above, has repudiated the
collective-bargaining process, and has unilaterally
withdrawn recognition of the Union by refusing to
abide by the collective-bargaining agreement re-
garding wage rates, fringe benefit contributions,
hiring hall provisions, and submission of monthly
reporting forms to the Arizona health, welfare,
pension, vacation, and apprenticeship funds. Fur-
ther, Respondent has failed and refused to apply
the terms and conditions of the collective-bargain-
ing agreement to nonmembers of the Union.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has failed and refused, and is
now failing and refusing, to bargain collectively
with the Union as the exclusive representative of
the employees in the appropriate unit. By such
conduct, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
Such affirmative action shall include that Re-
spondent recognize and deal with the Union as the
exclusive collective-bargaining representative of its
employees in the appropriate unit by honoring the
collective-bargaining agreement, terms of which
run from June 1, 1979, to May 31, 1982, in all its
terms.
Additionally, we have found that Respondent
has made unilateral changes in certain terms and
conditions of employment in violation of Section
8(a)(5) and (1) of the Act. In order to dissipate the
effect of these unfair labor practices, we shall order
Respondent to make whole its employees by
making the required fringe benefit contributions8
and paying the wage rates as set forth in the col-
lective-bargaining agreement, plus interest, that it
has failed to pay since April 27, 1979, as prescribed
in Florida Steel Corporation, 231 NLRB 651
(1977).9 We shall also order Respondent to comply
with the hiring hall provisions of the collective-
bargaining agreementl ° and submit the necessary
forms to the Arizona health, welfare, pension, va-
cation, and apprenticeship funds.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Clarence Yeager Distributing, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners
of America, Arizona State District Council of Car-
penters and its constituent Locals: 906, 1061, 1089,
1 Fringe benefit contributions shall be computed in the manner set
forth in Merryweather Optical Company, 240 NLRB 1213 (1979)
9 See Ogle Protection Service. Inc., and James J Ogle, 183 NLRB 682
(1970). See, generally, Isis Plumbing d Heating Co., 138 NLRB 716
(1962)
'0 If there are employees who were denied an opportunity to work for
Respondent because of the latter's refusal to abide by its collective-bar-
gaining agreement with the Union. the make-whole order herein shall en-
compass them A determination as to whether or not such employees
exists is best left to the compliance stage of this proceeding Wayne Elec-
tric. Inc., 226 NLRB 409 (1976)
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1100, 1153, 1216, 1327, 2763, 857 and Millwright
Locals 1914 and 1182, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent at all material times has been, and
is now, signatory to an agreement providing, inter
alia, that Respondent would be bound by existing
and subsequently negotiated collective-bargaining
agreements between the Union and the Associ-
ations.
The current 1979-82 agreement provides, inter
alia, for the recognition by Respondent of the
Union as the exclusive collective-bargaining repre-
sentative of Respondent's installers, servicemen,
and apprentice employees in a unit of employees
appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act. The
agreement describes the unit in the following
manner:
That the Contractors hereby recognize the
Unions who are signatory hereto as the sole
and exclusive collective-bargaining representa-
tives of all employees of the Contractors signa-
tory hereto over whom the Unions have juris-
diction, as such is defined by the Building and
Construction Trades Department of the
American Federation of Labor-Congress of
Industrial Organizations, as of the date of this
Agreement, excluding executives, superinten-
dents, assistant superintendents, civil engineers
and their helpers, master mechanics, all super-
visory employees such as general foremen, ti-
mekeepers, messenger boys, and office work-
ers, except as otherwise herein covered.
4. At all times material herein, the above-named
labor organization has been and now is the exclu-
sive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By unilaterally failing and refusing to abide by
the collective-bargaining agreement regarding
wage rates, fringe benefit contributions, hiring hall
provisions, and submission of monthly reporting
forms to the Arizona health, welfare, pension, va-
cation, and apprenticeship funds, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Clarence R. Yeager Distributing, Inc., Phoenix,
Arizona, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Brother-
hood of Carpenters and Joiners of America, Arizo-
na State District Council of Carpenters and its con-
stituent Locals: 906, 1061, 1089, 1100, 1153, 1216,
1327, 2763, 857 and Millwright Locals 1914 and
1182, as the exclusive bargaining representative of
its employees in the following appropriate unit:
Respondent's installers, servicemen, and ap-
prentice employees in a unit of employees de-
scribed in the following manner:
That the Contractors hereby recognize the
Unions who are signatory hereto as the sole
and exclusive collective-bargaining representa-
tives of all employees of the Contractors signa-
tory hereto over whom the Unions have juris-
diction, as such is defined by the Building and
Construction Trades Department of the
American Federation of Labor-Congress of
Industrial Organizations, as of the date of this
Agreement, excluding executives, superinten-
dents, assistant superintendents, civil engineers
and their helpers, master mechanics, all super-
visory employees such as general foremen, ti-
mekeepers, messenger boys, and office work-
ers, except as otherwise herein covered.
(b) Failing and refusing to abide by the collec-
tive-bargaining agreement regarding wage rates,
fringe benefit contributions, hiring hall provisions,
and submission of monthly reporting forms to the
Arizona health, welfare, pension, vacation, and ap-
prenticeship funds.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Recognize and bargain upon request with the
Unions as the exclusive representative of its em-
ployees in the aforesaid appropriate unit and honor
and abide by the collective-bargaining agreement,
terms of which run from June 1, 1979, to May 31,
1982, in all its terms, including the hiring hall pro-
visions.
(b) Make whole its employees, in the manner set
forth in the section of this Decision entitled "The
Remedy," by making the required fringe benefit
contributions and by paying to employees wage
850
YEAGER DISTRIBUTING, INC.
rates, with interest, all as required by its collective-
bargaining agreement with the Union, that it has
failed to pay since April 27, 1979.
(c) Submit the necessary forms to the Arizona
health, welfare, pension, vacation, and apprentice-
ship fund.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of money due under the terms of this
Order.
(e) Post at its Phoenix and Tucson, Arizona,
places of business copies of the attached notice
marked "Appendix."'" Copies of said notice, on
forms provided by the Regional Director for
Region 28, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 28,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I In the event that 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 Pursu-
ant to a Judgment of 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Brotherhood of Carpenters and
Joiners of America, Arizona State District
Council of Carpenters and its constituent
Locals: 906, 1060, 1089, 1100, 1153, 1216,
1327, 2763, 857 and Millwright Locals 1914
and 1182, as the exclusive representative of
our employees in the following appropriate
unit:
The Employer's installers, servicemen, and
apprentice employees in a unit of employees
described in the following manner:
That the Contractors hereby recognize the
Unions who are signatory hereto as the sole
and exclusive collective-bargaining repre-
sentatives of all employees of the Contrac-
tors signatory hereto over whom the Unions
have jurisdiction, as such is defined by the
Building and Construction Trades Depart-
ment of the American Federation of Labor-
Congress of Industrial Organizations, as of
the date of this Agreement, excluding execu-
tives, superintendents, assistant superinten-
dents, civil engineers and their helpers,
master mechanics, all supervisory employees
such as general foremen, timekeepers, mes-
senger boys, and office workers, except as
otherwise herein covered.
WE WILL NOT unilaterally change existing
terms and conditions of employment of our
employees in the above-described unit by fail-
ing and refusing to abide by the collective-bar-
gaining agreement regarding wage rates, fringe
benefit contributions, hiring hall provisions,
and submission of monthly reporting forms to
the Arizona health, welfare, pension, vacation,
and apprenticeship funds.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WI L recognize and bargain upon re-
quest with the Union as the exclusive repre-
sentative of our employees in the above-de-
scribed unit and honor the collective-bargain-
ing agreement, terms of which run from June
1, 1979, to May 31, 1982, in all its terms, in-
cluding the hiring hall provisions.
WE WILL make whole our employees by
making the required fringe benefit contribu-
tions and by paying to employees wage rates,
with interest, all as required by our collective-
bargaining agreement with the Union, which
we have failed to pay since April 27, 1979.
WE WII.L submit the necessary forms to the
Arizona health, welfare, pension, vacation, and
apprenticeship funds.
CLARENCE YEAGER DISTRIBUTING,
INC.
851