Moeller Bros. Body Shop

National Labor Relations Board - Board Decisions

Jan 28, 1992

306 N.L.R.B. 191 (N.L.R.B. 1992)

191
306 NLRB No. 29
MOELLER BROS. BODY SHOP
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 We shall modify the remedy to provide that the Respondent
make the health and welfare fund whole, in addition to the employ-
ees, for the failure to make the appropriate fringe benefit payments.
3 The union-security clause set forth in the most recent contract
provides, in pertinent part: ‘‘The Employer agrees that when a new
employee is hired, the employee shall immediately report to the
Union for the purpose of informing the Union that he has been hired
and intends to assume employment. To implement this procedure,
the Union agrees to furnish each person so reporting with written
evidence of such contact, the evidence to be filed by such employee
with the Shop Steward and the Employer involved.’’
4 When in one instance a newly hired employee went on his own
initiative to the Union, Bammer made no protest, and covered that
employee for the required fringe benefit funds.
5 Utility workers function essentially as janitors and are included
in the bargaining unit set forth in the collective-bargaining agree-
ment.
Moeller Bros. Body Shop, Inc. and East Bay Auto-
motive Council and its affiliate Unions, Ma-
chinists Automotive Trades District Lodge No.
190 of Northern California; East Bay Auto-
motive Machinists Lodge No. 1546, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO; Auto, Marine and
Specialty Painters Union, Local No. 1176, affili-
ated with Brotherhood of Painters and Allied
Trades, AFL–CIO; and Teamsters Automotive
Employees Union, Local No. 78, affiliated with
International Brotherhood of Teamsters, AFL–
CIO.1 Case 32–CA–10902
January 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 28, 1990, Administrative Law Judge
James M. Kennedy issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs.
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 as
modified.2
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to pay all of
its journeymen employees contractually required fringe
benefits and by failing to pay its utility employees con-
tractually required wages and fringe benefits. The Re-
spondent has not excepted to these findings. The judge,
however, found that the remedy for these violations is
limited by Section 10(b) to the 6 months prior to the
January 30, 1990 unfair labor practice charge. The
General Counsel and the Charging Party except, con-
tending the remedy should date back to January 1,
1987, as alleged in the complaint.
The judge further found that, although the Respond-
ent unilaterally decided what wages and benefits would
be paid to its prejourneymen employees, Section 10(b)
bars any finding that that action violated the Act. The
General Counsel and the Charging Party except, con-
tending that, as alleged in the complaint, the Respond-
ent has since January 1, 1987, violated Section 8(a)(5)
and (1) of the Act by failing to apply the contract to
prejourneymen employees.
The sole issue before the Board is the extent to
which Section 10(b) limits remedial relief for the Re-
spondent’s unilateral actions in disregard of its bar-
gaining agreement with the Union. Contrary to the
General Counsel and the Charging Party, we agree
with the judge’s resolution of this issue in light of the
particular facts present in this case.
The Union has been party to successive bargaining
agreements covering the unit employees since 1953.
The Respondent’s owner, Quentin Bammer, purchased
the business in 1977 and has since been signatory to
successive bargaining agreements with the Union. In
the 1983 contract the parties negotiated the deletion of
the existing apprenticeship program. The most recent
contract, effective from September 1, 1986, through
August 31, 1989, like the preceding contract, does not
contain an apprenticeship program. That agreement,
however, retained the union-security provision from
the previous agreements.3
Bammer believed that the union-security clause im-
posed no affirmative obligation on the Respondent to
refer newly hired employees to the Union, and the Re-
spondent has accordingly failed to do so since 1977.4
Bammer also believed that the 1983 deletion of the ap-
prenticeship provisions limited the contract’s applica-
tion to journeymen. Accordingly, since 1983, Bammer
has hired prejourneymen employees at individually ne-
gotiated pay rates and has not paid fringe benefit fund
contributions on their behalf.
The Respondent, since at least January 1987, has
hired journeymen and paid them contractually required
wages, but has not made fringe benefit fund payments
on their behalf. In the same period, the Respondent has
hired utility workers and has neither paid them con-
tractually required wages nor made fringe benefit fund
payments on their behalf.5 Since Bammer’s purchase
of the company in 1977, the Respondent has made
fringe benefit fund payments on behalf of up to four
journeymen employees.
The Union never appointed a steward at the Re-
spondent’s facility, although contractually permitted to
do so. The judge found that the union officials rarely
visited the Respondent—once in 1983 and once in
1986 during contract negotiations, and once in 1986 or
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Sec. 10(b) provides, in pertinent part, that ‘‘no complaint shall
issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board . . . .’’
7 Oregon Steel Mills, 291 NLRB 185, 192 (1988), enfd. mem. 134
LRRM 2432 (9th Cir. 1989), cert. denied 134 LRRM 2432 (1990).
Where the limitations period has been tolled with respect to the
cause of action, it may also be tolled as to the remedy. Allied Prod-
ucts Corp., 230 NLRB 858, 859 (1977), enfd. 629 F.2d 1167 (6th
Cir. 1980).
8 As noted, on the deletion of the apprenticeship provisions in the
1983 collective-bargaining agreement, the parties’ collective-bar-
gaining agreements did not have any provisions for prejourneymen.
Unlike the violations with regard to journeymen and utility men dis-
cussed later in this decision, reference to the collective-bargaining
agreement does not disclose the terms and conditions of employment
under which prejourneymen were to work. Accordingly, a remedy
under Farmingdale Iron Works, 249 NLRB 98, 99 (1980), enfd.
mem. 661 F.2d 910 (2d Cir. 1981), is not appropriate for those indi-
viduals. Though the Respondent had an obligation to bargain with
the Union before instituting terms and conditions of employment for
these prejourneymen, this alleged failure to bargain is, for the rea-
sons stated above, barred by Sec. 10(b).
1987 when a union official had his car repaired. The
Union also responded once a year to Bammer’s annual
claim that the contract had expired. There is no evi-
dence that the Union was ever barred from meeting
with or from counting employees, or that Bammer ever
affirmatively misled the Union about the number of
employees.
Union Official Tolentino testified that he had as-
sumed that the Respondent was a small shop, because
it never reported more than four employees on its
fringe benefit reporting forms. On November 17, 1989,
Tolentino went to the Respondent’s facility to discuss
a contract proposal and noticed more than four em-
ployees working. On the request of the Union, the Re-
spondent immediately provided the names of all em-
ployees. Following the Union’s filing of an unfair
labor practice charge, a complaint issued alleging that
the Respondent’s failure to pay contractually required
wages and to make contractually required fringe ben-
efit fund payments violated the Act.
The judge found, and we agree based on the facts
of this case, that Section 10(b)6 of the Act limits the
recovery available for the Respondent’s failure to
make fringe benefit fund payments and to pay contrac-
tually required wages. Although Section 10(b) does not
bar an allegation ‘‘that was not within the knowledge
of or which could not have been discovered by the
charging part[y] with reasonable diligence,’’7 we agree
with the judge that in the present case the Union failed
to exercise such diligence. Accordingly, we conclude
with the judge that this failure precludes the finding or
remedying of any violation occurring prior to the 10(b)
6-month limitation period.
After the deletion of apprenticeship provisions in the
parties’ 1983 contract, the Respondent concluded that
prejourneymen were not covered by the successive col-
lective-bargaining agreements. Indeed, the Respondent
believed that the 1983 agreement modified the unit to
exclude prejourneymen. The Respondent acted openly
in keeping with this construction of the agreement, and
did not in any way attempt to deceive the Union in
this regard. Thus, as the judge found, the Respondent
never denied the Union access to its facility or misled
the Union as to its policy. Had the Union made even
a minimal effort to monitor the Respondent’s facility
since 1983, it should have become aware of the Re-
spondent’s policy of hiring prejourneymen at individ-
ually negotiated pay rates, without making fringe ben-
efit payments on their behalf. Mere observation would
have put the Union on notice that the number of unit
employees was at least double the number reported on
the Respondent’s fringe benefit forms. The Union rare-
ly visited the Respondent’s operation however, never
appointed a shop steward, who might have been able
to check the Respondent’s compliance with the agree-
ment as the Union understood it, and never took any
measures to enforce the union-security provisions of
the contract.
Following the deletion of the apprenticeship provi-
sions in the 1983 agreement, the Union should have
been alerted to the uncertain status of prejourneymen
under the contract. As the judge noted, a provision in
the 1983 and 1986 contracts provided for a ‘‘trainee’’
rate at ‘‘specialty shops’’ that may have been applica-
ble to the Respondent. The Union, however, failed to
make any attempt to enforce that provision, or to de-
termine how the Respondent was treating pre-journey-
men under the parties’ collective-bargaining agreement.
In view of the Union’s failure to exercise reasonable
diligence by which it should have become aware, long
before the filing of the charge in this case, of the Re-
spondent’s policy vis-a-vis prejourneymen, we find
that Section 10(b) bars recovery as to any employees
who were hired as prejourneymen.8
We further agree with the judge that the Union, in
the exercise of reasonable diligence, should have be-
come aware of the Respondent’s failure to make fringe
benefit fund payments on behalf of journeymen and
utility employees and of the failure to pay the utility
employees contractually required wages. Throughout
the period in issue, the Respondent reported at most
four journeymen to the Union but had at least twice
that number of employees working in its shop. As
noted with regard to the prejourneymen, it is evident
that the Union could have readily discovered the dis-
crepancy had it visited the Respondent’s shop during
operating hours. In fact, when Union Official
Tolentino did so, he immediately noted more than the
reported number of employees working, requested the
Respondent to furnish it with the names of all its em-
ployees, and filed the charges giving rise to this pro-
ceeding. In addition, the Union has failed since 1977—
some 12 years prior to the charge in this case—to
193MOELLER BROS. BODY SHOP
9 See, e.g., Conners v. Hallmark & Son Co., 935 F.2d 336, 342,
343 (D.C. Cir. 1991), involving Sec. 301 claims to recover delin-
quent trust fund payments. The D.C. Circuit held that the trustees’
claims accrued when they became aware, or reasonably should have
become aware, of the delinquencies, rather than the date of the delin-
quencies, because the information necessary to discover the delin-
quencies was ‘‘by its nature, accessible in the first instance only to
the mine operators . . .’’
10 See, e.g., Burgess Construction, 227 NLRB 765 (1977), enfd.
596 F.2d 378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979). The
Board held that the remedy was not limited to the 10(b) period be-
cause the employer deliberately concealed its unlawful employment
of nonunion carpenters.
11 See, e.g., ACF Industries, 234 NLRB 1063 (1978), enf. denied
in relevant part 596 F.2d 1344 (8th Cir. 1979). The Board found no
constructive notice of improper subcontracting because the plant was
‘‘extremely large,’’ there were ‘‘many employees working,’’ and an
employee or steward would not ‘‘necessarily be alerted’’ to em-
ployer misconduct. In denying enforcement, the Eighth Circuit did
not disagree with the Board’s legal principle but with its application
to the facts.
12 The judge inadvertently failed to provide that the journeymen
and utility employees be made whole for any expenses incurred as
a result of the Respondent’s failure to make required pension fund
payments. Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981). In addition, the judge in-
advertently failed to cite New Horizons for the Retarded, 283 NLRB
1173 (1987), in support of his recommendation that payments to em-
ployees be made with interest. We modify his remedy to correct
these errors.
13 Stone Boat Yard, 264 NLRB 981 (1982), enfd. 715 F.2d 441
(9th Cir. 1983), cert. denied 466 U.S. 937 (1984).
14 Any additional amounts due the fund shall be determined on the
basis of the provisions of Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
monitor or enforce in any manner its contractual
union-security rights. Had the Union made any effort
to enforce the union-security provisions, it would have
become aware that the Respondent was hiring employ-
ees without providing fringe benefits and without pay-
ing contract wages. Accordingly, we agree with the
judge that recovery for the journeymen and utility
workers is limited to the 6-month period preceding the
filing of the charge. Farmingdale Iron Works, supra.
We conclude that the Union is chargeable with con-
structive knowledge by its failure to exercise reason-
able diligence by which it would have much earlier
learned of the Respondent’s contractual noncompli-
ance. While a union is not required to aggressively po-
lice its contracts aggressively in order to meet the rea-
sonable diligence standard, it cannot with impugnity
ignore an employer or a 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 misconduct is only in the hands
of the employer,9 where an employer has concealed its
misconduct,10 or where the size of an employer’s oper-
ation prevents ready discovery of the misconduct.11
Rather, this is a case where the Union, if it had exer-
cised reasonable diligence, would clearly have been
alerted much earlier to the misconduct. Accordingly,
we adopt the judge’s decision.
AMENDED REMEDY
The judge’s recommended remedy provided, inter
alia, that the Respondent make whole all journeymen
and utility employees for any expenses incurred as a
result of its failure to make required health and welfare
fund contributions.12 The Board’s practice is to require
additionally that the fund be made whole for those
contributions that were not made.13 Accordingly, we
modify the judge’s remedy to provide that the Re-
spondent transmit to the Union’s health and welfare
fund the contributions it failed to make on behalf of
its journeymen and utility employees beginning 6
months prior to the filing of the charge in this case.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Moeller Bros. Body Shop, Inc., San Leandro, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraphs 2(b) and
(c).
‘‘(b) Make all pension and health and welfare fund
payments on behalf of its journeymen and utility em-
ployees due since July 31, 1989, in the manner set
forth in the amended remedy section of the Board’s
Decision and Order.
‘‘(c) Make whole its journeymen and utility employ-
ees for any expenses incurred since July 31, 1989, as
a result of the Respondent’s failure to make required
pension and health and welfare contributions, in the
manner set forth in the amended remedy section of the
Board’s Decision and Order.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally change the terms and con-
ditions of employment of our journeymen and utility
employees as established by the 1986 collective-bar-
gaining agreement between Moeller Bros. Body Shop
and the East Bay Automotive Council.
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The caption of the case has been amended to reflect the names
of the East Bay Automotive Council’s affiliated unions as they were
listed on the face of the unfair labor practice charge. They are Ma-
chinists Automotive Trades District Lodge No. 190 of Northern Cali-
fornia; East Bay Automotive Machinists Lodge No. 1546, Inter-
national Association of Machinists and Aerospace Workers AFL–
CIO; Auto, Marine and Specialty Painters Union, Local No. 1176,
affiliated with Brotherhood of Painters and Allied Trades, AFL–CIO;
and Teamsters Automotive Employees Union, Local No. 78, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make our utility employees whole for any
loss of pay resulting from the unlawful unilateral
changes we made in their pay scale since July 31,
1989, with interest.
WE WILL make all pension and health and welfare
fund payments on behalf of our journeymen and utility
employees due since July 31, 1989.
WE WILL make whole any journeymen or utility
workers for any costs they may have incurred since
July 31, 1989, as a result of our failure to make re-
quired pension and health and welfare fund contribu-
tions, with interest.
WE WILL cause all journeymen and utility employ-
ees to be covered under the fringe benefit plans estab-
lished by the 1986 collective-bargaining agreement.
MOELLER BROS. BODY SHOP, INC.
Gary M. Connaughton, Esq., for the General Counsel.
Marcia Hoyt, Esq., of San Francisco, California, for the Re-
spondent.
Pamela Allen, Esq. (Boltuch & Siegel), of Oakland, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Oakland, California, on July 18, 1990,
on a complaint issued by the Regional Director for Region
32 of the National Labor Relations Board on March 30,
1990. Amended on July 3, 1990, the complaint is based on
a charge filed by East Bay Automotive Council1 (the Union)
on January 30, 1990. It alleges that Moeller Bros. Body
Shop, Inc. (Respondent) has committed certain violations of
Section 8(a)(5) and (1) of the National Labor Relations Act.
Issues
The amended complaint alleges that Respondent breached
the 8(a)(5) and (1) obligation to bargain in two separate
ways. First, it asserts that since January 1, 1987, it has failed
to make payments to the welfare (health) trust and to the
pension trust as required by the collective-bargaining contract
then in effect. Second, it alleges that Respondent has failed
to pay certain employees the wages to which they are enti-
tled under that agreement (or as set by the agreement even
though apparently expired). The amendment to the complaint
lists four individuals by name and asserts there are others
whose names are not known. The named employees are Jef-
frey Finley, Roberto Ceron, Lorne Lasartemay, and Jimmy
Ogden.
Respondent, though acknowledging some pay errors, as-
serts that the alleged trust payment violations are barred by
Section 10(b) of the Act as having been in effect for years
prior to the filing of the instant unfair labor practice charge.
Second, Respondent argues that in 1983 the bargaining unit
was consensually changed to exclude nonjourneymen level
workers. At the very least, it asserts, the 1983 change created
a contract ambiguity which should be resolved by contract
law or by collective bargaining, not by unfair labor practice
analysis.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs which have been carefully considered. Based on
the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, operates an auto
body repair and painting business at its facility in San
Leandro, California, where it annually derives gross revenues
in excess of $500,000 and purchases and receives goods val-
ued in excess of $5000 from outside the State. Respondent
therefore admits and I find it to be an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
Respondent admits the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent has had a collective-bargaining relationship
with the Union since 1953. When the corporation was pur-
chased in 1977 by its current owner, Quentin Bammer, that
relationship continued. The most recent collective-bargaining
contract was signed on November 7, 1986, and runs from
September 1, 1986, to an indeterminate date governed by an-
niversaries. The contract which preceded it ran from Sep-
tember 1, 1983, until replaced by the 1986 agreement.
Both the 1983 and 1986 contracts also contain job classi-
fications and wage schedules. Insofar as most of this case is
concerned, each job classification refers to ‘‘journeymen,’’
such as a journeyman mechanic or painter. The wage sched-
ule relating to each type of journeyman sets forth a wage for
a given calendar period, and provides for incremental wage
increases on specific dates between September 1, 1986, and
January 1, 1989, the last pay increase provided by the con-
tract. It is apparent that the anniversary clause serves as the
end of the contract once no more pay increases are due, so
long as a party gives the appropriate notice of renewal or
modification as required by law. That seems to have oc-
195MOELLER BROS. BODY SHOP
2 At the time the charge was filed Finley was earning a little less
than the journeyman rate. At the time of the hearing, he had exceed-
ed that level. The parties have stipulated, however, that Respondent
had not yet begun to pay fringes on his behalf.
3 Ceron’s situation is the same as described in fn. 2, above.
4 Other utilitymen hired were Damon Robertson (December 1987)
and Ernest Rivera (November 1989). Both were paid less than the
contract rate. In addition, Respondent hired a part-time utility person,
Richard Bandy (May 1990) at $6 per hour. Bammer testified that
Bandy is a high school sophomore or junior. He appears to be sum-
mer help and an employee who is not in the bargaining unit.
5 In pertinent part, the union-security clause says: ‘‘The Employer
agrees that when a new employee is hired, the employee shall imme-
diately report to the Union for the purpose of informing the Union
that he has been hired and intends to assume employment. To imple-
ment this procedure, the Union agrees to furnish each person so re-
porting with written evidence of such contact, the evidence to be
filed by such employee with the Shop Steward and the Employer in-
volved.’’
6 Union Business Representative Bernie Tolentino testified that the
Union has supplied its employers with a supply of blank ‘‘Report
of Hire’’ forms which they are supposed to fill out and give to
newly hired employees. He recalled giving such a packet to Bammer
in 1977. Bammer testified that he had no such forms. Nonetheless,
on December 11, 1989, his office manager, Larry Duke, filled one
out for Ridgley. Tolentino concedes that Respondent had never be-
fore utilized that form, nor had it used the alternate procedure of
sending a report of hire on Respondent’s letterhead. When asked if
it was possible that Ridgley had obtained the form from the Union
and taken it to Duke for signing, Tolentino contended that was not
possible. He says the Union guards against possible fraud by deny-
ing those forms to employees. I am not convinced. It seems entirely
likely that a helpful clerk at the Union might well give a person the
proper form in blank with instructions to take it back for the em-
ployer’s signature. Whatever might have happened with Ridgley, at
a time when the union-shop clause was not in effect due to contract
hiatus, does not alter the fact that for years Respondent has left en-
forcement of the union-shop clause to the Union.
curred here as the parties have been negotiating a new con-
tract.
The recognition clause of both contracts states that Re-
spondent recognizes the Union as the exclusive collective-
bargaining agent for its employees ‘‘who perform work de-
scribed as the work jurisdiction of the Union irrespective of
where the work is being performed.’’ The work jurisdiction
clause of each contract then describes the nature of that work
in detail. Without attempting to itemize the work, it is suffi-
cient to state that the clause details the type of work nor-
mally performed by mechanics, body shop workers and
painters to perform those tasks.
The 1983 contract, however, did something somewhat un-
usual. It deleted the then current apprenticeship pay scale and
program. That deletion was carried over to the 1986 contract.
It is this deletion which has given rise to the matter now be-
fore the Board.
Bammer testified that once that clause was deleted he con-
sidered the contract to cover only those individuals classified
as journeymen; less experienced employees, he declares,
were not covered. Following that principle, he paid them an
individually negotiated pay rate. Since Bammer did not con-
sider them to be covered by the contract if they were not
journeymen, neither did Respondent pay fringe benefits on
their behalf. At the time of the most recent contract’s anni-
versary, September 1, 1989, the journeyman rate was $18.80
per hour, as established the previous January. Some of Re-
spondent’s journeymen were actually paid more than that,
but only some of those whom Respondent considered jour-
neymen were given fringe benefit coverage.
The journeymen for whom Respondent paid at least the
proper rate and fringe benefits were, with their hire dates
shown in parenthesis: John Clavarie (April 1977), Ruben
Zuniga (July 1977), Howard Hoffman (March 1984), and
Michael Ridgley (December 1989).
The records also show that prior to the filing of the charge
Respondent hired four other journeymen and paid them the
proper hourly rate but no fringes: Jean Branscum (November
1988), David Bold (May 1989), Craig Lorenzen (November
1989), and Michael Doherty (January 15, 1990). After the
charge was filed Respondent hired four other journeymen at
the proper rate, but did not pay fringe benefits for them ei-
ther. They are Shawn Crump (March 1990), Scott Randall
(May 1990), Pat Young (May 1990), and Jimmie Brazeale
(June 1990).
In addition, Respondent hired, on the dates shown, the fol-
lowing nonjourneymen: Finley (January 1987), a bodyman;2
Ceron (September 1987), painting prep man;3 Lasartemay
(December 1989), bodyman; and Ogden (January 8, 1990),
utility worker. A utility worker is essentially a janitor and is
part of the Teamsters group. Ogden’s initial pay was $11 per
hour, 75 cents less than the contract rate.4
The 1989 anniversary date is significant because it was at
that time that the parties began to negotiate a new contract.
It may also have a bearing on the enforceability of the union-
shop clause after that date, for the General Counsel and the
Charging Party argue that Respondent’s failure to honor the
union-shop clause is evidence of affirmative misconduct war-
ranting the tolling of the statute of limitations. Even so, it
was the resumption of negotiations in 1989 which ultimately
led to the discovery of the facts supporting the complaint.
On first reading, the union-shop clause appears to be
somewhat unusual. Aside from the normal requirement that
all new hires join the Union within 31 days, it seems to im-
pose an affirmative duty on Respondent to send new hires
to the union office for clearance.5 Although that language is
certainly useful to the Union so that it may begin the mem-
bership process and the fringe benefit signups, I do not think
it is significantly different from any other union-shop clause
or contract which requires the employee to obtain clearance.
Under the standard clauses, unless an employer wishes to run
the risk of losing a new hire for failing to meet the union-
shop conditions, he must also send the employee to the
Union for processing. Although the language here may make
that a little more explicit, it is in practice no different from
the language more commonly seen. Therefore, I do not re-
gard this contract as imposing any additional burden on an
employer than he would have had if the language were more
conventional. Certainly Bammer testified that it was not his
responsibility to send employees to the Union for clearance
and he says he has never accepted that responsibility. On the
other hand, when an employee, i.e., Ridgley, did go to the
Union to sign up, Bammer made no protest, but covered him
as required.6
The collective-bargaining contract also contains a provi-
sion requiring Respondent to recognize a steward appointed
by the Union. Here, the Union has not appointed a steward,
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Citing Drukker Communications, 258 NLRB 734 (1981), and
Carpenters (Skippy Enterprises), 211 NLRB 222 (1974).
8 The Third Circuit’s 1986 opinion is unpublished. Judge Itkin
quotes the pertinent language in his remand decision, cited infra.
assertedly because it has, until now, regarded Respondent as
a small shop. Respondent, however, does not regard itself as
small, either in size or in volume. Its building is about
16,000 square feet and it repairs 100–125 cars and 3 or 4
heavy trucks per month. The Union, in assuming Respondent
to be a small shop, notes that Respondent never reported
more than four employees on its fringe benefit reporting
forms.
Despite the fact that it had no steward at the facility, the
Union rarely visited. On one occasion, the Union’s business
representative, Bernie Tolentino, brought his car in for repair.
He says it was in 1986, but concedes it might have been in
1987. He also came to the shop to consult with the employ-
ees during negotiations, apparently 1983 and 1986. In addi-
tion, once a year he responded to Bammer’s annual claim
that the contract had expired. The only time he visited em-
ployees was when he went to discuss a new contract.
Even so, there is no evidence that he was ever barred from
meeting with or counting employees and there is no evidence
that Bammer ever misled him about the number of employ-
ees or who they were. On November 17, 1989, when
Tolentino and an assistant went to Respondent’s establish-
ment to discuss a contract proposal, they noticed more than
four workers in the shop. They immediately demanded the
names of all the employees. Even though Bammer wasn’t
there at the time, it only took a phone call for the office
manager to obtain permission. Respondent immediately gave
the Union the names of all the employees then working.
IV. ANALYSIS AND CONCLUSIONS
Respondent’s principal defense is Section 10(b) of the Act,
the 6-month statute of limitations. In relevant part it states:
‘‘no complaint shall issue based on any unfair labor practice
occurring more than six months prior to the filing of the
charge with the Board.’’ The Supreme Court has held that
the statute bars the Board from relying on unfair labor prac-
tices occurring outside the 6-month period to prove the un-
lawful nature of acts committed within the period. Machinists
Local Lodge 1424 v. NLRB, 362 U.S. 411 (1960). This inter-
pretation has had a significant impact on the ability of the
Board to remedy so-called continuing violations where the
practice or policy under attack was established more than 6
months prior to the filing of the charge, but continuing into
the 6-month period. In some circumstances the Board has
held that where the practice has been ongoing for years, the
complaint attacking the practice is totally barred. Park Inn
Home for Adults, 293 NLRB 1082 (1989); Continental Oil
Co., 194 NLRB 126 (1971). In other cases the Board has
been willing to issue a remedy reaching back only the 6
months set by the statute. Farmingdale Iron Works, 249
NLRB 98, 99 (1980), enfd. 661 F.2d 910 (2d Cir. 1981). In
still other cases, the Board has utilized the intentional con-
cealment doctrine to permit recovery reaching back to the
time the practice was begun. Don Burgess Construction, 227
NLRB 765 (1977), enfd. 596 F.2d 378, 383 (9th Cir. 1979),
cert. denied 444 U.S. 940 (1979).
It is the last doctrine which the General Counsel wishes
to invoke here. He cites one of the cases in that line, Viola
Industries, 286 NLRB 306, 318 (1987), in support of that ar-
gument. There, in somewhat ambiguous circumstances the
administrative law judge cited the rule, commonly seen, that
‘‘the notice which starts the 10(b) period running must be
’clear and unequivocal’’’ and that the injured party must
have received ‘‘actual or constructive notice of the conduct
complained of.’’7 He argues from that rule that because the
Union here did not discover the practice until November 17,
1989, that the Board should reach the practice from its incep-
tion, a date chosen by the General Counsel in 1987.
There is a twofold problem with the General Counsel’s ar-
gument. The first is that it discounts the unchallenged testi-
mony given by Bammer that the practices were begun in
1983. The second is that the language used in Viola is an
incomplete statement of the law. In Viola there were facts
which the Board recited, but did not clearly utilize in its
analysis, which showed that the respondent had deliberately
concealed the facts from the charging party. For that reason
Viola is not as persuasive on the issue as it might be. It
therefore must be regarded as a deliberate concealment case.
If it is not so regarded, it seems subject to the same over-
sight given Garrett Railroad Car & Equipment, 275 NLRB
1032 (1985), by the Third Circuit. The court was concerned
that the Board ‘‘may have applied an incorrect legal standard
in failing to consider whether the Union had exercised due
diligence in discovering the operative facts giving rise to its’’
unfair labor practice claim.8 In the underlying case the Board
had utilized the ‘‘actual and constructive notice’’ standard
without also discussing the ‘‘due diligence’’ requirement. On
remand Judge Itkin discussed the issue in detail, noting that
due diligence is an essential element of the tolling rule and
‘‘[A] party’s mere ignorance of the circumstances ‘does not
constitute due diligence’ . . . .’’ On the facts, however, he
concluded that the union in that case had used due diligence,
but the employer had fraudulently concealed the facts from
it. Therefore, he reaffirmed the prior decision. The Board
agreed. 289 NLRB 158 (1988).
Likewise, the General Counsel here argues that the facts
proven demonstrate that there was an effort by Respondent
to conceal the true facts from the Union warranting the invo-
cation of the fraudulent concealment doctrine. Specifically,
he asserts that Bammer’s refusal to comply with that portion
of the union-shop clause ostensibly requiring him to send
employees to the union office on their hire is proof that
Bammer deliberately withheld information which would have
led them to the truth much earlier.
The complaint does not contend that Respondent’s failure
to follow the apparent mandate of that clause is a separate
violation of the Act. It only seeks to obtain a remedy for the
failure to pay the fringe plans on behalf of all the employees
and to require that the proper level of pay be paid them. As
noted above, Respondent has signed a report of hire for the
Union only once since 1977, and that occurred in December
1989. It would appear that incident is not particularly signifi-
cant for at least two reasons. First, it seems to have occurred
during a hiatus period between collective-bargaining con-
tracts. It has long been settled that union-security clauses are
not in force during those periods. Colonie Fibre Co., 69
NLRB 589 (1946), 71 NLRB 354 (1946), enfd. 163 F.2d 65
(2d Cir. 1947); New York Shipbuilding Corp., 89 NLRB
1446 (1950), and numerous subsequent cases. Second, be-
197MOELLER BROS. BODY SHOP
cause Bammer testified he didn’t have a stock of those
forms, and because Tolentino hadn’t given such forms to Re-
spondent since 1977, it is most probable that the form
Ridgley used came from the union office. Whether that prob-
ability is what actually occurred is not important. What is
material is the fact that it is such an isolated incident that
it has no value in demonstrating that Respondent ever inter-
preted the union-shop clause to require it to send new hires
to the Union.
In any event, as I noted in the factual recitation, the lan-
guage itself, although atypical, is not a significant departure
from that which tends to track that portion of Section 8(a)(3)
of the Act permitting contracts which condition employment
on a new hire’s joining the union within 30 days. That lan-
guage puts the burden on the employee, not the employer.
But any employer who wants to avoid the consequences of
a failure to comply will normally see to it that the employee
has the opportunity to join. Here, Bammer didn’t even try to
interpret the clause or any duty under it. He simply decided
in 1977 that it was the Union’s duty to enforce the union-
shop clause. He felt it was the Union’s business, not his.
That policy has been in place for 13 years, and I would be
hard pressed to conclude that it constitutes active conceal-
ment of new hires from the Union.
None of the foregoing discussion has yet dealt with the
‘‘due diligence’’ issue. Sometimes that issue arises as a re-
sponse to a deliberate concealment contention; sometimes in
the context of simply pointing out that the plaintiff had con-
structive notice of the activity under scrutiny. In either of
those situations the defendant always asserts, based on facts
it has adduced, that the other side could have, by using ‘‘due
diligence’’ discovered what the truth was. If it can show that
the plaintiff failed to use due diligence, even in a fraudulent
concealment context, it can withstand the complaint. See
Garrett Railroad Car & Equipment, 289 NLRB 158 (1988),
the remand decision and the cases cited by Judge Itkin.
Here, I find that the General Counsel has not proven that
Respondent engaged in any activity which concealed its poli-
cies or practices from the Union. It simply interpreted the
contract the way it did from at least 1983 on. During that
period, as before, it did not send any new hires to the Union
for processing. In other words, it stood pat on all these poli-
cies. If an employee was a journeyman who chose to fill out
the fringe plan papers, Respondent paid for it. If the journey-
man did not, Respondent did not. If an employee was hired
who did not have journeyman skills, he was paid in a man-
ner not governed by the contract.
The evidence also shows that the Union has tended to ig-
nore Respondent’s employees during that period of represen-
tation. Thus, it appears that it regarded Respondent as a
small shop and did not appoint a shop steward, even though
the contract gave it that right. Neither did it make any visits
to its employees during that period just to keep in touch.
Tolentino only met with Bammer infrequently: once a year
when Bammer made an annual effort to argue that the con-
tract had expired, once to get his car repaired, and twice to
explain contract proposals to the membership. Neither he nor
any union official ever visited the shop to see to the needs
of the employees or even to run a routine audit of the gen-
eral situation at the shop. Had they done any of these things,
they would have discovered Respondent’s interpretation of
the 1983 contract, would have discovered the fringe plan pol-
icy, the pay plan for prejourneymen and the pay discrep-
ancies for the utility employees.
Instead, the Union simply ignored Respondent and its em-
ployees. As noted above, ignoring the circumstances does not
constitute the exercise of due diligence. I find, therefore, that
Section 10(b) does serve as a bar to reaching some of Re-
spondent’s alleged unfair labor practices. Certainly its 1983
interpretation of the bargaining unit is barred. It came to be-
lieve that the dropping of the apprenticeship program, rightly
or wrongly, modified the bargaining unit to mean that the
contract covered only journeymen. I note that the contract
does contain another clause providing that a trainee rate
could be arranged. It seems to apply to so-called specialty
shops, and I am not certain whether the Union and Respond-
ent would agree that Respondent is such a shop. Yet, the
concept of a trainee rate is clearly not foreign to the Union.
Indeed, it seems to me that the Union knows it is common
for auto body shops to hire youths as trainees. For that rea-
son it seems likely that the contractual availability of a train-
ee rate for negotiation was purposeful. It should have been
alert to the probability of Respondent hiring trainees.
I specifically find, therefore, that Section 10(b) bars the
Board from issuing a remedy with respect to those persons
hired who were not journeymen and that the bar extends to
Respondent’s current practice with respect to the
prejourneyman situations of employees Finley, Ceron, and
Lasartemay. Park Inn Home for Adults, 293 NLRB 1083
(1989); Continental Oil Co., 194 NLRB 126 (1971).
However, if anyone was hired as a journeyman, or became
a journeyman after serving a prejourneyman training period,
that individual is entitled to full contract fringe benefits for
a period extending 6 months backwards from the date the
charge was filed. This remedy would extend to journeymen
hired after the charge was filed as well. Farmingdale Iron
Works, 249 NLRB 98, 99 (1980), enfd. 661 F.2d 910 (2d
Cir. 1981). This remedy applies because the terms and condi-
tions of employment as set by Section 8(d) of the Act
(adopting those set by the old contract) remain in force until
modified by a new contract or until lawfully set after an im-
passe.
The utility employees are to be treated only a little dif-
ferently. Here Respondent paid them neither the pay scale or
the fringe benefits set by the old contract. They are, therefore
entitled to both backpay and fringe benefit coverage for the
6-month period prior to the filing of the charge. Again, the
terms were set by the contract and those terms remained in
effect during the 6-month period. Farmingdale Iron Works,
supra.
THE REMEDY
Having found that Respondent has engaged in certain vio-
lations of Section 8(a)(5) and (1) of the Act, I shall rec-
ommend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. The affirmative action shall include an
order requiring Respondent to make whole those employees
who have suffered loss of pay for the 6-month period pre-
ceding the filing of the unfair labor practice charge, together
with interest thereon. Ogle Protection Service, 183 NLRB
682 (1970). It shall also include an order requiring Respond-
ent to make the appropriate contributions to the pension plan,
together with interest. Merryweather Optical Co., 240 NLRB
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
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.’’
1213, 1216 fn. 7 (1979). In addition, Respondent shall either
provide contract health coverage for all journeymen and
utilitymen for the 6-month period prior to the filing of the
charge to the extent that it has not already done so or it shall
reimburse any employee for moneys he or she has paid for
health services which would have been covered by the estab-
lished plan during the 6-month period prior to the filing of
the charge. Triangle Sheet Metal, 267 NLRB 650 (1983);
Service Roofing Co., 200 NLRB 1015 (1972). It shall also
immediately arrange for its journeymen and utility employees
to become covered by the health trust in the future.
CONCLUSIONS OF LAW
1. The Respondent, Moeller Bros. Body Shop, Inc., is an
employer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Within the 6-month period prior to the filing of the
charge in the instant case, Respondent unilaterally, and with-
out bargaining with the Union, departed from the terms and
conditions of employment established by Section 8(d) of the
Act by failing to provide all of its journeymen employees
with the fringe benefits to which those conditions entitled
them, namely, the health and pension benefits established by
the collective-bargaining contract which became effective in
1986. It further departed from those terms and conditions
when, during the same 6-month period it failed to pay its
utility employees the proper pay scale as set by that same
contract and failed to provide the utility employees with the
aforesaid health and pension coverage. Such changes con-
stitute a violation of Section 8(a)(5) and (1) of the Act.
4. Except as found in paragraph 3 above, Respondent did
not violate the Act as alleged.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Moeller Bros. Body Shop, Inc., San
Leandro, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally changing the terms and conditions of em-
ployment of its journeymen and utility employees as estab-
lished by the 1986 collective-bargaining contract and as
adopted under Section 8(d) of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole its utility employees for any loss of pay
they may have suffered as a result of the unlawful unilateral
changes made in their pay scale since July 31, 1989, together
with interest as set forth in the remedy section of the deci-
sion.
(b) Make all pension fund payments on behalf of its jour-
neymen and utility employees due since July 31, 1989, to-
gether with any interest or penalties as set forth by plan
rules.
(c) Make whole any journeyman or utility employee for
any health care costs incurred since July 31, 1989, which
would have been paid by the welfare plan established by the
1986 collective-bargaining contract, together with interest.
(d) Cause all journeymen and utility employees to be cov-
ered under the fringe benefit plans established by the 1986
contract, except to the extent that there might be duplicate
coverage under paragraph 2,c, above.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay or other payments due under the terms
of this Order.
(f) Post at its auto body and paint shop in San Leandro,
California, copies of the attached notice marked ‘‘Appen-
dix.’’10 Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.