Local 964, Carpenters

LOCAL 964, CARPENTERS 625 Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Contractors & Suppliers Association of Rockland County, New York, Inc. Case 2-CB-4666 July 24, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN, AND JENKINS On April 7, 1970, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, adopting, with certain modifi- cations, the Decision issued by Trial Examiner Sid- ney Sherman on September 17, 1969. Thus, the Board agreed with the Trial Examiner's findings, inter alia, that Respondent violated Section 8(b)(3) of the Act by insisting as a condition to reaching any agreement upon two nonmandatory subjects of bargaining, and by engaging in other tactics designed to frustrate and avoid agreement with the Charging Party; violated Section 8(b)(I)(B) and 8(b)(3) of the Act by coercing and restraining em- ployer-members of the Charging Party to abandon multiemployer bargaining through the Charging Party and to execute individual contracts with Respondent, which contracts provide for employer contributions to an industry advancement fund and to various other trust funds jointly administered by Respondent and Rockland County Carpenter Con- tractors Association, Inc. (herein Carpenters As- sociation). Accordingly, the Board adopted the Trial Examiner's recommended remedy and or- dered that Respondent, inter alia , cease giving ef- fect to the individual contracts it had executed with members of the Charging Party, and take the fol- lowing affirmative action: (1) offer to the Charging Party, as the duly designated bargaining representa- tive of its employer-members, a contract containing the same terms and conditions which it had granted to the Charging Party's members individually, but omitting all provisions relating to jointly ad- ministered trust funds and industry advancement fund, and (2) if the parties fail voluntarily to resolve their differences over the trust funds within 60 days of the Board's Order, Respondent shall (a) refund to the members of the Charging Party all contributions which they were required to make, since July 19, 1968, under their individual con- tracts with Respondent, to the various trust funds jointly administered by Respondent and Carpenters Association and (b) offer to the Charging Party the same joint trust fund provisions as are contained in those individual contracts, except that the trust funds which were established by previous agree- ments between the Charging Party and Respondent, shall be substituted for those designated in the in- dividual contracts. In addition to adopting the foregoing recom- mended order of the Trial Examiner, the Board also ordered that Respondent refund to members of the Charging Party all moneys which they were required, under their individual contracts with Respondent, to contribute to the industry advance- ment fund provided therein. The Board's Order also required that all moneys ordered to be refunded shall be paid with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Thereafter, on April 30, 1970, Respondent filed a motion to reopen hearing, with supporting af- fidavit, on the grounds that the Decision encom- passes materials neither alleged in the complaint nor litigated at the hearing, and that it affects necessary parties, including the Carpenters As- sociation and various trust funds, which were not joined in this proceeding and therefore are not bound by the Board's Decision and Order. In addi- tion, Respondent proposes to show, by newly discovered evidence, that the Charging Party was unwilling to accept any contract with Respondent without an industry advancement fund provision, and "that it was the sole intent of the charging party to control the non-member employers in the Rockland area by control of the Union Trust Funds and the protection given to their members in not being audited by the trustees." Accordingly, Respondent requests that the hearing herein be reopened to permit the joining of all necessary parties for the purpose of fully litigating matters which allegedly affect their legal or contractual obligations. In sum, Respondent proposes "to show that the remedy as ordered by the Board is not in the best interest of justice on the facts to be presented." The General Counsel and the Charging Party filed memoranda in opposition to Respondent's mo- tion and, thereafter, Respondent filed a memoran- dum in reply. The Board, having duly considered the matter, finds that the matters asserted in Respondent's mo- tion either were previously fully considered by the Board or are lacking in merit. Thus, we find no merit in Respondent's contention that it was denied due process of law because the Board's Order, requiring it to abrogate contracts and to refund moneys, was neither alleged nor litigated. Respon- dent concedes, however, that neither the Board's ' 181 NLRB No 154. 184 NLRB No. 67 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rules and Regulations, Series 8, as amended, Sec- tion 102.15, nor its well-established practice and procedure, requires that the proposed remedy be alleged in the complaint. It is for the Board to fashion the remedy which it deems appropriate to undo the effects of the unfair labor practices found to have been committed. We also find no merit in Respondent's contention that the Carpenters As- sociation and/or the trust funds are necessary parties to this proceeding. The complaint alleged and, on the basis of the entire record, the Board found, that Respondent violated Section 8(b)(1)(B) and 8(b)(3) of the Act by refusing to bargain with the Charging Party while at the same time coercing the Charging Party's members to ex- ecute individual agreements with it, pursuant to which individual agreements the Charging Party's members were forced and required to pay moneys into trust funds administered jointly by Respondent and Carpenters Association. Our remedy is, ad- dressed solely to Respondent and is tailored to undo the unfair labor practices committed by it, but does not extend to any agreements or relationships between Respondent and Carpenters Association. Thus, Respondent is ordered to cease giving effect to the separate contracts which it unlawfully im- posed upon Charging Party's members and to reim- burse these employers for moneys they were required by Respondent's unfair labor practices to pay thereunder into trust funds. Contrary to Respondent's contention, our Order does not require any action by the Carpenters Association or the trustees of the trust funds.2 However, to the ex- tent that our Order might appear ambiguous in this regard and imply that the trustees of the funds shall refund moneys, we shall amend it for purposes of clarification. As to the "newly discovered evidence" which Respondent seeks to adduce at a reopened hearing, we find that such evidence is either not new or is ir- relevant. Thus, Respondent's contention that the Charging Party was unwilling to accept a contract without an industry advancement fund was raised by it as a defense at the hearing and in its excep- tions to the Trial Examiner's Decision and has been fully considered and rejected by the Board. Finally, we find irrelevant and immaterial Respondent's further contention that it was the Charging Party's "sole intent ... to control the non-member em- ployers in the Rockland area by control of the Union Trust Funds and the protection given to their members in not being audited by the trustees." Ac- cordingly, It is hereby ordered that the motion to reopen hearing be, and it hereby is, denied as the matters asserted either were previously fully considered by the Board or are lacking in merit. It is hereby further ordered that the Board's Order herein be, and it hereby is, amended as fol- lows: 1. At paragraphs 2(b) and (c) of the Order, in- sert the phrase "a sum of money equal to" between the words "aforenamed Association" and "all con- tributions" so that these paragraphs, in pertinent part, will read, "... refund to the members of the aforenamed Association a sum of money equal to all contributions made by them...." 2. At numbered paragraphs 2 and 3 at the end of the text of the "Appendix," insert the phrase "a sum of money equal to" between the words "of that Association" and "all contributions" so that these paragraphs, in pertinent part, will read, "Refund to the members of that Association a sum of money equal to all contributions paid by them...." ' Respondent's argument that compliance with the Board 's Order, absent a joining of other parties, will subject it to various breach of contract suits is specious and totally irrelevant, since Respondent placed itself in this dilem- ma by engaging in the unfair labor practices found herein.