NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,510, DECORATIVE FLOORS, INC. and NORTHWEST OHIO DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

DECORATIVE FLOORS, INC. and NORTHWEST OHIO DISTRICT COUNCIL OF CARPENTERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO.

315 NLRB No. 25.Case No. 8-CA-25895. September 30, 1994

Before Stephens, Devaney and Cohen.

Unilateral Changes--Wages--Benefit Payment Cessation.--By unilaterally ceasing to remit fringe benefit contributions to a union welfare fund required under an expired collective bargaining agreement, without the existence of an impasse or union acquiescence, an employer violated its bargaining duty. The parties maintained an undisputed Section 9(a) bargaining relationship that obligated the employer to continue the payments after the expiration of the bargaining contract because there was a presumption that the union continued to enjoy majority status among bargaining unit employees. Section 8(a)(5).

Back reference: ¶3145.70.

From Text of Board’s Decision

The parties’ submissions disclose that, since about 1986, the Respondent has been signatory on an individual basis to a series of collective-bargaining agreements between various floor covering contractors in northwestern Ohio and the Northwest Ohio District Council of Carpenters. The collective-bargaining agreement that was effective from July 1, 1989, through June 30, 1993 provided in pertinent part at article I that:

The Employer acknowledges that the Union has offered to establish its majority status by allowing the Employer to examine authorization cards voluntarily executed by the Employer’s eligible employees in an appropriate unit; the Employer is satisfied that the Union represents a majority of its eligible employees in an appropriate unit and has waived the opportunity to examine the authorization cards; and, therefore, the Employer recognizes, pursuant to Section 9(A) [sic] of the Labor Management Relations Act of 1947, as amended, the Union as the sole and exclusive bargaining representative of all full-time and regular part-time journeymen, apprentices, trainees, foreman, and general formen perform floor laying work, but excluding all office employees, professional employees, managerial employees, guards and supervisors as defined in the Labor-Management Relations Act of 1947, as amended.

Article II of the parties’ contract required the Respondent to remit fringe benefit contributions to the Ohio Carpenters Health and Welfare Plan, the Ohio Carpenters Pension Plan and Trust, the Carpenters Joint Apprenticeship Funds, the Northwest Ohio District Council of Carpenters Supplemental Pension Plan, and the Northwest District Council of Carpenters Vacation Plan and Trust.

The parties attempted to negotiate a successor agreement during the summer of 1993. [1] When the parties failed to reach an agreement by August 16, the unit employees went on strike. Thereafter, on September 13, the Respondent and the Union executed a memorandum agreement agreeing to be bound by the terms of a new contract which is effective from that date until June 30, 1997. The Union learned the next month that the Respondent had failed to remit fringe benefit contributions due under the expired contract for the period from June 30 through August 16, 1993. The Union then filed the instant unfair labor practice charge.

In its motion, the Unio stresses that in Schmidt-Tiago Construction Co., [1986-87 CCH NLRB ¶18,941] 286 NLRB 342 (1987), the Board found that the employer had violated Section 8(a)(5) and Section 8(d) of the Act by unilaterally discontinuing fringe benefit contributions required under an expired collective-bargaining agreement. The Union claims that in this case there was no bargaining impasse or union agreement to the discontinuance of fringe benefit contributions that would justify the Respondent’s failure to make such payments.

While noting the Respondent’s argument that the expired contract was an 8(f) agreement and that, therefore, the obligation to make the payments ceased upon its expiration, the Union contends, citing Golden West Electric, 807 NLRB 1494 (1992), that article I of the agreement establishes the parties’ clear intent to create a 9(a) relationship. The Union also notes that in Casale Industries, [1992-93 CCH NLRB ¶17,913] 311 NLRB 951 (1993), the Board held that where, as here, a construction-industry employer recognizes a labor organization under Section 9(a) and no challenge to that status occurs within the 10(b) limitations period, the Board will not entertain a subsequent claim that majority status was lacking at the time of recognition. Thus, the Union argues that, by virtue of its status as a 9(a) bargaining representative, the Respondent was obligated to continue fringe benefit payments after the contract expired. The Respondent’s failure to make them, in the Union’s view, clearly violated Section 8(a)(5) and Section 8(d) of the Act.

In joining the Union’s motion, the General Counsel also argues that Golden West Electric, supra, supports a finding that the parties had a 9(a) bargaining relationship which obligated the Respondent to continue fringe benefit payments. Accordingly, the General Counsel urges the Board to grant the Union’s motion and find that the Respondent’s conduct was unlawful.

The Respondent has admitted that it discontinued the fringe benefit payments as alleged in the complaint. It argues, however, that the present case is distinguishable from Golden West Electric where the union made a specific demand for 9(a) recognition by presenting the employer with a voluntary recognition agreement during the term of an existing collective-bargaining agreement and the employer there admitted having read the document and agreeing that the union possessed majority status. In this case, according to the Respondent, there are none of the extrinsic circumstances on which the Board relied in Golden West Electric. The Respondent stresses, while relying on the affidavit of its president, Dan Grant, that the Union never made a demand for recognition and did not provide it with any authorization cards. Thus, the Respondent contends that the Union failed to meet its burden of showing that the parties had a 9(a) relationship. Based on its view that the contract which expired on June 30, 1993, was an 8(f) agreement, the Respondent assets, citing inter alia, Brannan Sand & Gravel Co., [1987-88 CCH NLRB ¶19,502] 289 NLRB 977 (1987), that it lawfully discontinued fringe benefit payments on expiration. Accordingly, the Respondent contends that the Board should deny the Union’s Motion for Summary Judgment.

The Board held in John Deklewa & Sons, [1986-87 CCH NLRB ¶18,549] 282 NLRB 1375, 1385 fn. 41 (1987), that the part asserting a 9(a) relationship in the construction industry has the burden of proving the existence of this relationship. Here, article I of the parties’ collective-bargaining agreement which expired on June 30, 1993, as quoted above, unequivocally and unambiguously states that “the Union represents a majority of [the Respondent’s] elegible employees in an appropriate unit and ..., pursuant to Section(A) [sic] ... the Union [is] the sole and exclusive bargaining representative.” Although, as the Respondent has noted, the Board relied on extrinsic evidence, as well as the language of the collective-bargaining agreement, in finding that the union held 9(a) status in Golden West Electric, we conclude that in the present case the contractual language, standing alone, is sufficient to establish that such a relationship existed here. We note that the Respondent has not disputed that it voluntarily entered into that collective-bargaining agreement. Thus, we find that the Respondent, by executing an agreement with this provision, has unequivocally conferred 9(a) status on the Union as the exclusive bargaining representative of the unit employees. [2]

Because a 9(a) relationship existed between the parties, the Respondent was obligated to continue making fringe benefit fund payments after the contract expired on June 30, 1993. the Board has held that an employer is obligated to continue fringe benefit contributions after the expiration of a contract barring the existence of an impasse or a valid waiver of such contributions. See Schmidt-Tiago Construction Co., supra. The Respondent has not argued either defense in this case. Accordingly, we grant the Motions for Summary Judgment filed by the General Counsel and the Charging Party. We therefore conclude that the Respondent has acted contrary to Section 8(d) and has violated Section 8(a)(5) and (1) by failing to remit fringe benefit contributions to the Union from about June 30 through August 16, 1993.