United Kiser Services, LLC

National Labor Relations Board - Board Decisions

Jul 22, 2010

355 N.L.R.B. 319 (N.L.R.B. 2010)

UNITED KISER SERVICES
355 NLRB No. 55
319
United Kiser Services, LLC and Construction and
General Laborers Union, Local 1329 and North-
ern Wisconsin Regional Council of Carpenters.
Cases 30–CA–18129 and 30–CB–5352
July 22, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On August 28, 2009, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent Employer and
the Respondent Union each filed an answering brief to
the General Counsel’s and the Charging Party’s excep-
tions. The General Counsel filed reply briefs to both the
Respondent Employer’s and the Respondent Union’s
answering briefs. The Charging Party filed a reply brief
to the Respondent Employer’s and the Respondent Un-
ion’s answering 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 decided to
affirm the judge’s rulings, findings,1 and conclusions, as
explained below, and to adopt the recommended Order.
The judge dismissed the complaint allegations that the
Respondent Employer and the Respondent Union (La-
borers) violated Section 8(a)(1), (2), (3), and (5) and Sec-
tion 8(b)(1)(A) and (b)(2) of the Act, respectively, by
entering into a collective-bargaining agreement at a time
when the Charging Party (Carpenters) was the recog-
nized representative of the unit.2 The judge found that
the allegations were barred by Section 10(b) because the
Carpenters filed them more than 6 months after it knew
or should have known about the conduct in question. We
adopt the judge’s dismissals of the allegations under Sec-
tion 10(b), but solely for the reasons explained below.
The Employer engineers and repairs hydroelectric
equipment. It employs individuals at its shop facility in
Norway, Michigan, and at various jobsites.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 The judge also dismissed the complaint allegation that the Em-
ployer refused to negotiate with the Carpenters from August 25 to
October 22, 2008. We adopt the judge’s dismissal solely on the ground
that the Employer’s request to delay bargaining so that it could consult
with legal counsel was reasonable under the circumstances of this case.
In late 2006, five nonmanagerial employees worked in
the shop facility: four millwrights represented by the
Carpenters and one electrician represented by the Labor-
ers. The millwrights’ regular work schedule was Mon-
day through Thursday, 10 hours per day. The Employer
and the Carpenters were parties to a multiemployer field
working agreement and a shop addendum agreement that
were in effect at all pertinent times.
In December 2006, the Employer entered into a new
contract to service marine industry equipment in its shop.
In early 2007, it began hiring additional employees to
perform that work. On or about March 1, 2007, the Em-
ployer recognized the Laborers as the exclusive collec-
tive-bargaining representative for those newly hired em-
ployees, and the parties entered into a collective-
bargaining agreement that purportedly applies to em-
ployees performing “all work of unskilled and skilled
nature” in the Employer’s shop. The General Counsel
contends that the Laborers agreement overlaps with the
Employer’s shop addendum agreement with the Carpen-
ters. Neither the Employer nor the Laborers informed
the Carpenters about the Laborers agreement.
Carpenters Business Representative Greg Dhein vis-
ited the shop twice in 2007, and on January 11 and June
19, 2008.3 During the June 19 visit, approximately 15
months after the Employer entered into its collective-
bargaining agreement with the Laborers, Dhein noticed a
“shop full of workers.” Upon inquiry, Dhein learned that
the additional employees were represented by the Labor-
ers. On July 16, the Carpenters sent a letter to the Em-
ployer demanding that it repudiate the “agreement with
another union purporting to cover the same work and
positions as that covered under your voluntary recogni-
tion agreement with the [Carpenters].” On August 21,
the Carpenters filed the instant charge against the Em-
ployer.4 The Carpenters filed the charge against the La-
borers on October 27.
Section 10(b) states, in pertinent part, that “no com-
plaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge with the Board.” The party raising Section 10(b)
as an affirmative defense bears the burden of establishing
that a complaint is time barred. Chinese American Plan-
ning Council, 307 NLRB 410 (1992), review denied
mem. 990 F.2d 624 (2d Cir. 1993). The Board has found
that the 6-month 10(b) period begins only when a party
has “clear and unequivocal” notice of a violation of the
Act. Broadway Volkswagen, 342 NLRB 1244, 1246

3 All subsequent dates are in 2008, unless otherwise indicated.
4 On p. 8, L. 21 of his decision, the judge inadvertently stated that
the Carpenters filed its initial charge against the Employer on February
21.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

320
(2004), enfd. sub nom. East Bay Automotive Council v.
NLRB, 483 F.3d 628 (9th Cir. 2007). This burden is met
by showing that the charging party had either actual or
constructive knowledge of the alleged unfair labor prac-
tice more than 6 months before the filing of the charge.
Id. In evaluating whether a party had either actual or
constructive notice, the Board has found that

[s]uch knowledge may be imputed where the conduct
in question was sufficiently “open and obvious” to pro-
vide clear notice. Similarly, knowledge may be im-
puted where the filing party would have discovered the
conduct in question had it exercised reasonable or due
diligence.

Id. (citations and footnotes omitted).
As noted above, the Carpenters filed the initial charge
on August 21. Therefore, in order to meet its 10(b) bur-
den, the Respondents must show that the Carpenters had
actual or constructive notice of the facts giving rise to the
charge on or before February 21. For the reasons ex-
plained below, we find that the Respondents have estab-
lished that the Carpenters had constructive notice of
those facts when its Business Representative Dhein vis-
ited the shop on January 11, prior to the commencement of
the 10(b) period.
On the morning of January 11, a Friday, Dhein met with
the Employer’s vice president of operations, Jeff Kiser, in
Kiser’s office at the Norway facility. Later that day,
Dhein visited the part of the shop where the majority of
the millwrights worked, intending to talk to some of the
employees. Dhein testified that he did not observe any
unfamiliar faces that day. He also testified that no one
informed him that a number of employees represented by
the Laborers were working in the shop.
By January 11, however, the Employer had hired ap-
proximately 11 employees who were represented by the
Laborers to work in the shop. Indeed, at the time of
Dhein’s visit, more than twice as many employees in the
shop were represented by the Laborers as were represented
by the Carpenters. That disparity would have been even
more obvious on the day of Dhein’s visit, as it fell on a
Friday, which was not a scheduled workday for the mill-
wrights represented by the Carpenters.
In the circumstances described above, we find that the
fact that the Employer had hired employees who were not
represented by the Carpenters was “open and obvious.”
Broadway Volkswagen, 342 NLRB at 1246. We further
find that Carpenters Business Representative Dhein would
have discovered the newly hired employees and the fact
that they were not represented by the Carpenters on Janu-
ary 11, had he exercised reasonable diligence. Cf. Com-
craft, Inc., 317 NLRB 550, 550 fn. 3 (1995) (no construc-
tive notice where unlawful conduct would not have been
“readily discovered by the Union merely by visiting the
Respondent’s offices during operating hours”).
For these reasons, we find that the Carpenters had con-
structive notice of the alleged violations more than 6
months before it filed its initial charge on August 21. Ac-
cordingly, the allegations are time barred under Section
10(b).5
ORDER
The complaint is dismissed.

Andrew S. Gollin, Esq., for the General Counsel.
David W. Croysdale, Esq., of Milwaukee, Wisconsin, for the
Respondent Employer.
Scott Graham, Esq., of Portage, Michigan, for the Respondent
Union.
Ying Tao Ho, Esq., of Milwaukee, Wisconsin, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on June 10 and 11, 2009, in Iron Mountain,
Michigan, pursuant to individual complaints and notice of hear-
ing in the subject cases (the complaint) issued on December 31,
2008,1 by the Regional Director for Region 30 of the National
Labor Relations Board (the Board). Thereafter, by order of the
Regional Director, the cases were consolidated. The underlying
charges were filed by Northern Wisconsin Regional Council of
Carpenters (the Charging Party or Carpenters) alleging that
United Kiser Services, LLC (the Respondent Employer or Em-
ployer) and Construction and General Laborers Union, Local
1329, (the Respondent Union or Laborers), has engaged in cer-
tain violations of Section 8(a)(1), (2), (3), and (5) and 8(b)(1)(A)
and (b)(2) of the National Labor Relations Act (the Act). The
Respondent Employer and the Respondent Union filed timely
answers to the complaint denying that they had committed any
violations of the Act.
Issue
The complaint alleges that the Respondent Employer recog-
nized the Charging Party as the representative of its Millwright
Craft unit employees but when it secured additional production

5 Given our dismissals of the allegations on this ground, we find it
unnecessary to pass on the judge’s finding that the Carpenters had
actual notice of the violations outside of the 10(b) period through Un-
ion Steward Michael Manowski.
Additionally, in adopting the judge’s dismissals, we do not rely on
his finding that the allegations were also untimely under Local Lodge
No. 1424 (Bryan Mfg.), 362 U.S. 422, 417 (1960), because the alleged
violations occurred outside the 10(b) period. Bryan Mfg., which in-
volved a party with undisputed notice of the allegations outside the
10(b) period, did not alter the Board’s well-established law that the
10(b) period begins to run only after the aggrieved party receives actual
or constructive notice of a violation of the Act. See Broadway Volks-
wagen, 342 NLRB at 1246.
1 All dates are in 2008, unless otherwise indicated.
UNITED KISER SERVICES, LLC

321
work to be performed at its facility it assigned the work to em-
ployees represented by the Respondent Union rather then to the
Charging Party. Additionally, the complaint alleges that the
Respondent Employer granted recognition to, entered into an
agreement and since about March 1, 2007, has maintained and
enforced a collective-bargaining agreement with Respondent
Union as the exclusive representative of employees performing
the additional work even though the Respondent Union was not
the exclusive collective-bargaining representative of the employ-
ees performing the work. The complaint further alleges that the
Respondent Employer refused to bargain with the Charging Party
and thereafter, unlawfully delayed bargaining. The complaint
against the Respondent Union alleges that it received assistance
and support from the Employer which referred all new employ-
ees performing the additional work to the Respondent Union
rather than to the Charging Party. The complaint also alleges that
when Respondent Union obtained recognition from and entered
into a collective-bargaining agreement with the Respondent Em-
ployer, it did so even though it was not the lawfully recognized
bargaining representative of the unit.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel,2 the Charging Party, Respondent Employer,
and the Respondent Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, with an office and place of business in Nor-
way, Michigan, is engaged in the business of repairing hydroelec-
tric equipment. The Employer, during the past calendar year, in
conducting its business operations purchased and received goods
valued in excess of $50,000 directly from points outside the State
of Michigan. The Respondent Employer and the Respondent
Union admit and I find that the Employer is engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Charging Party and the Respondent Union are labor
organizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since on or about January 1, 2006, the Charging Party has
been the designated exclusive collective-bargaining representa-
tive of the Millwright Craft employees and has been recognized
as the representative by Respondent Employer. In early 2007,
the Employer established a new line of business to service the
marine equipment industry that is performed entirely in its facil-
ity. On or about March 1, 2007, the Employer recognized the
Respondent Union as the exclusive collective-bargaining repre-
sentative for an appropriate unit of production employees to per-
form the marine equipment work exclusive of the Millwright
Craft employees.
The Respondent Employer and the Respondent Union are par-
ties to a multiemployer field agreement effective by its terms

2 Based on my decision herein, it is not necessary to address the
General Counsel’s request found in fn. 3 of its brief to reconsider my
prior ruling to admit GC rejected Exhs. 20–31 into the record.
from May 1, 2005 (January 1, 2006, for the Respondent Em-
ployer) through April 30, 2010 (Jt. Exh. 5). The Respondent
Employer and the Respondent Union are also parties to a Ware-
house & Maintenance Shop Agreement effective from May 1,
2005 (March 1, 2007, for the Respondent Employer) through
April 30, 2010 (Jt. Exh. 6).
The Respondent Employer and the Charging Party were par-
ties to a multiemployer field working agreement effective from
May 26, 2002 (January 1, 2006, for the Respondent Employer)
through May 31, which agreement has been renewed and is pres-
ently in effect (Jt. Exh. 3).3
The Respondent Employer and the Charging party were par-
ties to a Shop Agreement effective from January 1 through May
31, 2006 (Jt. Exh. 4).
At all material times, William Harris is the president of the
Employer, Jeff Kiser serves as vice president of operations, and
Joseph Spinnato is the shop manager. Joseph Gallino is the field
representative for the Respondent Union. Greg Dhein is the
business representative for the Charging Party and Michael
Manowski serves as the Charging Party shop steward in the facil-
ity.
B. The 8 (a)(1), (2), (3), and (5) and 8(b)(1)(A) and
(b)(2) Allegations
1. The position of the parties
The General Counsel alleges that the acquisition of the marine
equipment work should have been performed by the Millwright
Craft employees represented by the Charging Party. It further
asserts that when the Respondent Employer granted recognition
to, entered into an agreement on March 1, 2007, and since then
has maintained and enforced the collective-bargaining agreement
with Respondent Union as the exclusive bargaining representa-
tive of the employees performing the marine equipment work it
did so even though Respondent Union was not the exclusive
collective-bargaining representative of the unit.
The Respondent Employer and the Respondent Union argue
that the underlying charges are barred by Section 10(b) of the
Act.
2. The facts
Manowski was appointed the Charging Party shop steward by
Dhein around 2002 while employed with one of the predecessor
employers.4 While Manowski testified that he stopped serving as

3 Sec. 1.2 of the agreement states that the Union has claimed and the
Employer is satisfied and acknowledges that the Union represents a
majority of the Employer’s employees in the bargaining unit covered
by this Labor Agreement. The Employer recognizes the Union as the
exclusive bargaining agent under Sec. 9(a) of the National Labor Rela-
tions Act for all employees who perform work within such collective
bargaining unit for all present and future job sites within the geographi-
cal jurisdiction covered by this Agreement. The Charging Party geo-
graphical jurisdiction is defined on pp. 35–37 of the Agreement and is
strictly limited to Wisconsin counties and a portion of Menominee
County in Michigan. The Employer’s facility is located in Dickinson
County and is not included in the jurisdictional coverage of the Agree-
ment.
4 Dhein testified that he appointed Manowski the Charging Party
steward in 2002 or 2003 and has never rescinded the appointment. The
business history of the Employer is detailed in the stipulated facts (Jt.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

322
the shop steward around 2003, he admitted that he never in-
formed the Charging Party or the Respondent Employer of his
resignation and that he continued to hold the steward position
after he commenced employment with the Employer in January
2006.5
Manowski acknowledged that he never filed or handled a
grievance while serving as steward nor did he take any actions on
behalf of employees. He asserted that this was due primarily to
the harmonious working relationship with the Employer and a
lack of problems raised by the Millwright Craft employees in the
shop. Manowski, however, has filled out documents for the
Charging Party during his tenure as steward and has forwarded
them to the Carpenter union office.
Manowski noted that he first observed laborer employees in
the Shop performing marine equipment work between January
and June 2007. He estimated that approximately 12 employees
were hired during this period. These employees work in the next
bay from his assigned location and he regularly eats lunch and
socializes with them during the workday. Manowski testified
that while he has not seen or read a copy of the Respondent Un-
ion’s Shop Agreement, he has discussed the benefits contained
therein with the laborer employees.
On February 9, 2009, Manowski was summoned to Kiser’s of-
fice and was presented with a typed document titled “Declaration
of Michael Manowski.” He testified that the Declaration was not
based on his words but he read it and signed the statement (GC
Exh. 1(ii)). In response to my questions concerning each of the
11 paragraphs in the Declaration, Manowski testified that with
the exception of paragraph 11 that he did not fully understand, all
other paragraphs were accurate and correct.6
Dhein has been the Charging Party business agent/
Organizer for approximately 8 years and services around 800
Millwright represented employees including the 4–6 shop Mill-
wrights at the Respondent Employer. He testified that he has
been the principal point of contact for the Respondent Employer
Millwright Craft employees since January 2006, and for a num-
ber of years prior to that time with the predecessor employers.

Exh. 1). In his pretrail affidavit given to the Board in 2008, Dhein
confirmed that Manowski is currently the shop steward. He further
acknowledged that Manowski, as the incumbent steward, had a duty to
report to him any new employees that were working in the shop but in
this situation the system failed. It is further noted that Dhein, on May
27, returned Manowski’s telephone call to discuss his inquiry about the
negotiation of the successor shop agreement (GC Exh. 37). This rein-
forces the conclusion that Manowski is an agent of the Charging Party
and Dhein recognizes him as the Carpenter steward. Indeed, Dhein
conceded that Manowski had no qualifier or reduced steward duties.
5 Spinnato credibly testified that Manowski informed him shortly af-
ter he became shop manager in July 2006 that he was the Carpenter
shop steward.
6 Manowski stated that Kiser did not inform him the meeting was
voluntary nor did he assure him that no reprisals would be taken against
him if he did not execute the Declaration. Manowski opined that he
signed the Declaration because he believed he did not have a choice. I
note that the complaint did not allege a violation of the Act based on
this conduct nor did the General Counsel request to amend the com-
plaint at the hearing to address this issue. Johnnie’s Poultry Co., 146
NLRB 770 (1964).
Dhein stated that between January 1, 2006, and June 2008, he
visited the Respondent Employer’s facility on eight separate
occasions. He maintains, in the regular course of business, a
written day-timer in which he records meetings/appointments and
also keeps a spiral notebook of telephone calls (GC Exhs. 32, 33,
34, 37, and R. Exh. 1).
The 2006 day-timer reflects that Dhein visited the facility on
March 16 and 22, April 10, and October 25, 2006. The purpose
of the March 16 and 22, 2006 meetings were to finalize a Shop
Agreement between the Respondent Employer and the Charging
Party. Dhein met with Kiser on both dates and a Shop Agree-
ment was tentatively agreed upon that was thereafter finalized on
April 10, 2006 (Jt. Exh. 4). The parties agreed to effective dates
of January 1, 2006, to May 31.
The purpose for the October 25, 2006 meeting was to discuss
the performance of two Millwright employees and was arranged
by Spinnato. Dhein agreed to remove one of the two employees
from the apprenticeship program. As of October 2006, there
were four Millwright Craft employees working in the shop and
one electrician. The electrician was the only laborer working in
the shop and was represented for collective bargaining by the
Respondent Union. At no time during this meeting did Spinnato
inform Dhein of any new work that he anticipated acquiring in-
cluding the marine industry line of business because contracts for
that work were not finalized until December 2006.
In 2007, Dhein was present at the facility on two occasions,
February 2 and July 23, 2007. During the February 2, 2007 visit
to the facility Dhein met with Kiser in his office and they had
preliminary discussions about executing an International Agree-
ment. An International Agreement allows the Employer to take
its field Millwright employees to perform work outside the State
of Wisconsin. Dhein testified that while he normally stops in the
shop to visit and talk to the Millwright Craft employees, he has
no recollection of doing so after his meeting with Kiser.
Dhein stated that on his next visit to the facility on July 23,
2007, he met with Kiser in his office around 10:30 a.m. They
discussed additional issues surrounding the execution of an Inter-
national Agreement but were unable to reach an understanding
(GC Exh. 35). The meeting lasted approximately 1 hour and
Dhein departed the facility without going into the shop to talk
and visit with the Millwright Craft employees.
On January 11, Dhein met with Kiser in his office. The pur-
pose of the meeting was to sign-up three new field Millwright
employees in the union. After the meeting, Dhein went to lunch
and then returned to the shop with the intention of talking to
some of the Millwright Craft employees. He proceeded to bay 1
where the majority of the Millwright Craft employees work (GC
Exh. 36; R. Exh. 7), but did not have any recollection of how
long he stayed or who he spoke with. He testified that he did not
observe any unfamiliar faces and no one informed him that a
number of laborer employees were now working in the shop.
By letter dated March 24, the Charging Party notified the Em-
ployer that they intended to open the Shop Agreement for modi-
fication (GC Exh. 2).
The parties held their first negotiation session on June 19. It
was at this meeting that Dhein learned for the first time that la-
borer employees had been hired in early 2007 to perform produc-
tion work in the shop for the marine equipment line of business
UNITED KISER SERVICES, LLC

323
and were still presently working in that capacity. He also learned
that the laborer employees were represented for collective-
bargaining purposes by the Respondent Union and a contract had
been executed with the Employer (Jt. Exh. 6).
3. Discussion
Section 10(b) is a statute of limitations and is not jurisdictional
in nature. The Respondent Employer and the Respondent Union
have the burden of showing that the Charging Party knew or
should have known prior to the 10(b) period that the disputed
work was being performed by employees represented by the
Laborers. Dutchess Overhead Doors, 337 NLRB 162 (2001).
Section 10(b) of the Act states that “no complaint shall issue
based upon any unfair labor practice occurring more than 6
months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such
charge is made.” The 10(b) period begins to run when the ag-
grieved party receives actual or constructive notice of the conduct
that constitutes the alleged unfair labor practice. Concourse
Nursing Home, 328 NLRB 692, 694 (1999). “The concept of
constructive knowledge incorporates the notion of due diligence,
i.e., a party is on notice not only of facts actually known to it but
also facts that with ‘reasonable diligence’ it would necessarily
have discovered.” Nursing Center at Vineland, 318 NLRB 337,
339 (1995).
In Moeller Bros. Body Shop, Inc., 306 NLRB 192 (1992), the
Board held that the “Union is chargeable with constructive
knowledge by its failure to exercise reasonable diligence by
which it would have much earlier learned of the Respondent’s
contractual noncompliance.”
The Board has also held that based on the factual context unit
employees’ knowledge can be imputed to their bargaining repre-
sentative for the purposes of determining whether the Section
10(b) period commences. Courier-Journal, 342 NLRB 1093,
1103 (2004); Goski Trucking Corp., 325 NLRB 1032, 1034
(1998).7
The Charging Party filed its initial charge against the Respon-
dent Employer on August 21, more than 19 months after the first
laborer employees were hired in January 2007, and 16 months
after the execution of the Shop Agreement between the Employer
and the Respondent Union on March 1, 2007.
I find, for the following reasons, that the Charging Party had
actual or constructive knowledge of the existence of the Shop
Agreement and/or that the employees represented by the Respon-
dent Union were performing the marine equipment work in the
facility more then 6 months prior to the filing of the unfair labor
practice charge on August 21.
The evidence establishes and Spinnato confirmed that at the
inception of his employment in July 2006, the compliment of
employees in the shop consisted of four Millwright Craft em-
ployees represented by the Charging Party and one electrician
represented by the Respondent Union.

7 In the Goski case the administrative law judge found that the union
steward knew of the existence of the issue in dispute outside the 10(b)
period and his knowledge could be imputed to the Union since the
steward acted as an agent. See also Carpenters Local 17 (A&M Wall-
board), 318 NLRB 196 fn. 3 (1995).
In late December 2006, the Employer acquired additional
work in the marine equipment industry. In January 2007, Spin-
nato contacted Gallino to discuss entering into a Shop Agreement
to cover the labor employees that would be performing the pro-
duction work for the marine equipment line of business. Such an
Agreement was ultimately signed with an effective date of March
1, 2007. Spinnato began to hire a laborer work force in January
2007, and by March 2007, had five laborers working in the shop.
Thereafter, four additional laborers were hired in the remaining
portion of 2007 (R. Exh. 2).
The General Counsel argues that Dhein exercised due dili-
gence by visiting the facility on eight occasions between January
2006 and June 2008, but was never told by anyone nor did he
observe that laborers were performing the marine equipment line
of work. The General Counsel further argues that Dhein made
reasonable efforts to uncover the existence of this work including
making shop visits but did not learn about the hiring of the la-
borer employees who were represented by the Respondent Union
until June 2008.
For the following reasons, I find that the General Counsel did
not conclusively establish the underpinnings of this argument.
The evidence discloses that Dhein made four visits to the facil-
ity in 2006. These visits occurred on March 16 and 22, April 10,
and October 25, 2006. During this period the compliment of
employees in the shop consisted of four Millwright Craft em-
ployees and one electrician. Thus, any visits during 2006 would
not have uncovered the existence of the laborer employees due to
the fact that the first hires did not commence employment until
January 2007.
In the year 2007, Dhein made two visits to the facility on Feb-
ruary 2 and July 23, 2007. Dhein testified that he had no recol-
lection of visiting the shop after completing his meeting on Feb-
ruary 2, 2007, and did not visit the shop after his meeting with
Kiser on July 23, 2007. Therefore, in the absence of visiting the
shop on any occasions in 2007, it was impossible for Dhein to
have learned whether laborers were working in the facility on the
marine equipment line of business. Such inaction does not dis-
play due diligence. This is in stark contrast to the unrebutted
testimony of Gallino who regularly visits the shop once or twice
a week to meet with Employer officials and interact with the
laborer employees the Respondent Union represents.8
Dhein also testified that he visited the shop on January 11, af-
ter having lunch but did not observe any unfamiliar faces. The
January 11 visit was on a Friday and Dhein acknowledged that it
could have been a scheduled nonworkday as the shop employee’s
work a four 10-hour workweek.9 In any event, I find that had
Dhein exercised due diligence during the entire year of 2007, by
regularly talking to Manowski or going into the shop work
area/visiting the facility on a more frequent basis, he could have
learned that laborers were working in the shop.

8 Gallino, in his testimony, addressed the openness of the shop area
which permits a clear view of all employees working in the bay areas.
Indeed, although only 5’ 4” tall, Gallino asserted that when he visits the
shop area he has no problem in observing both the Millwright and
laborer employees who are working in bays 1, 2, and 3 (R. Exh. 7).
9 Spinnato confirmed that the Millwright employees work schedule
in the shop is four 10-hour days Monday–Thursday.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

324
Manowski, who was appointed the Carpenter shop steward by
Dhein and has held the position since at least January 1, 2006,
credibly testified that he was aware since at least early 2007 that
the production employees represented by the Respondent Union
were performing the disputed work in the facility and that they
were working under a collective-bargaining agreement between
the Employer and the Respondent Union. He further testified
that as shop steward he is the point of contact for the employees
to discuss terms and conditions of employment with the Em-
ployer.
Even if Dhein was not personally aware of the Laborers Shop
Agreement prior to June 2008, it is undisputed that Manowski
was fully aware that the disputed work was being performed by
employees represented by the Respondent Union in the facility
under a collective-bargaining agreement with the Employer since
at least early 2007. Thus, Manowski’s knowledge is imputed to
the Charging Party. See Goski Trucking Corp. and Courier-
Journal, above.
Additionally, even if the Charging Party lacked actual knowl-
edge of the conduct underlying the unfair labor practice charge, it
had constructive knowledge of the conduct well in advance of
June 2008. With any reasonable diligence, Dhein could have
discovered prior to June 2008 that the disputed work had been
performed since at least early 2007 and continued through 2008.
See Moeller Bros. Body Shop, Inc., above (the Union is charge-
able with constructive knowledge by its failure to exercise rea-
sonable diligence by which it would have much earlier learned of
the Respondent’s contractual noncompliance).10
For all of the above reasons, and particularly noting that the
Charging Party had actual or constructive notice that employees
represented by the Respondent Union were performing the dis-
puted work under a collective-bargaining agreement more than 6
months prior to the filing of the initial charge on February 21, I
find that the subject unfair labor practice charges are time-barred
under Section 10(b) of the Act.11
Accordingly, I recommend that the 8(a)(1), (2), (3), and (5)
and 8(b)(1)(A) and (2) charges be dismissed in there entirety.12
C. The Respondent Employer’s Refusal to Negotiate
The General Counsel alleges in paragraph 10 of the complaint
in Case 30–CA–18129 that since on or about August 25, the
Employer has refused to negotiate with the Charging Party.13

10 I further find that the complaint is untimely under Sec. 10(b) of the
Act because the only unlawful conduct alleged is based upon a time-
barred event—the March 1, 2007 execution of the Laborers Shop
Agreement. Local Lodge No. 1424 (Bryan Mfg.), 362 U.S. 411, 417
(1960) (the complaints were time barred because the conduct occurring
within the limitations period can be charged to be an unfair labor prac-
tice only through reliance on an earlier unfair labor practice and to
permit the [time-barred] event itself to be so used in effect results in
reviving a legally defunct claim).
11 The charge in the CB case was filed on October 27.
12 In view of my finding that the subject charges were untimely filed,
it is not necessary to address the General Counsel’s arguments found on
pp. 37–54 of its posthearing brief as well as similar arguments ad-
vanced by the Charging Party.
13 The record confirms, and the parties stipulated, that the Employer
and the Charging Party met on June 19, August 14, November 7, and
December 4 to negotiate a successor Shop Agreement. No bargaining
The Employer defends its conduct by asserting that the Charging
Party insisted upon negotiating to expand the scope of the bar-
gaining unit, a permissive subject of bargaining, to which it law-
fully exercised its right not to engage in bargaining. The Re-
spondent further argues that it did not refuse to negotiate on Au-
gust 25 because the Shop Agreement with the Charging Party
extended for an additional year through May 31, 2009.
The Board has held that an impasse created in part “on bar-
gaining about a permissive subject is invalid under the Act” and
constituted an independent violation of Section 8(a)(5). Quality
House of Graphics, 336 NLRB 497, 510 (2001). See also Read-
ing Rock, Inc., 330 NLRB 856, 861 (2000) (a party may advance
a proposal on a permissive subject of bargaining . . . so long as it
does not insist upon it as a price for an overall agreement) and
Raymond F. Kravis Center for the Performing Arts, 351 NLRB
143, 144 (2007) (as explained more fully in the judge’s decision,
the respondent insisted to impasse that, inter alia, the collective-
bargaining agreement would apply only to those workers referred
from the union’s hiring hall. The judge found, and we agree, that
this constituted an insistence by the respondent on changing the
scope of the bargaining unit, which included all workers perform-
ing stagehand work. The scope of the bargaining unit is a per-
missive subject of bargaining over which a party may not insist to
impasse. Thus, we find that the respondent’s declaration of im-
passe was unlawful). A union’s insistence upon permissive sub-
jects of bargaining to the point of impasse likewise, constitutes a
per se refusal to bargain. NLRB v. Longshoremen (ILA) South
Atl. & Gulf Coast Dist. (Lykes Bros. S.S. Co.), 443 F.2d 218 (5th
Cir. 1971), enfg. 181 NLRB 590 (1970).
1. Facts
The Shop Agreement between the Charging Party and the Re-
spondent Employer was scheduled to terminate on May 31.14 By
letter dated March 24, the Charging Party notified the Respon-
dent Employer of its intention to renegotiate the Shop Agreement
(GC Exh. 2).15
The parties stipulated that four collective-bargaining sessions
were held for the purpose of renegotiating the Shop Agreement
(Jt. Exh. 1).
Spinnato testified that he attended all of the negotiation ses-
sions and stated that during the August 14 meeting he asked
Dhein whether the Carpenters intended to represent everyone in
the shop. Dhein replied that we do not have a position and are
not taking a stance.16

sessions have been held between the Employer and the Charging Party
since March 6, 2009.
14 The Shop Agreement by its terms may be renewed from year to
year unless either party gives 90 days advanced notice to the other.
15 Dhein independently requested to renegotiate the parties’ Shop
Agreement in May 2008, as he was unaware of the Charging Party’s
March 24 letter. He testified that he knew the Shop Agreement was
about to expire but did not focus on the time constraints contained
therein in order to open negotiations.
16 By letter dated July 16, the Charging Party informed the Employer
that they recently learned that it had signed an agreement with another
union to cover the same work and positions as provided under their
Shop Agreement. The Charging Party stated that if the Agreement is
not repudiated, it will have no choice but to pursue our legal remedies
(GC Exh. 4).
UNITED KISER SERVICES, LLC

325
By email dated August 25, the Employer informed the Charg-
ing Party that they could not meet on September 4 as originally
planned. Rather, the Employer needed to postpone the meeting
until further notice in order to review the union jurisdiction mat-
ter in the shop between the Laborers and the Millwrights (GC
Exh. 5).
By letter dated October 22, the Employer acknowledged that it
had previously suspended negotiations in order to obtain a legal
review of the jurisdictional issue, and now that the review has
been completed, it was prepared to resume negotiations (GC Exh.
6).
2. Discussion
I find that the Respondent Employer did not refuse to negotiate
on August 25 for the following reasons.
First, the correspondence between the parties establishes that
the Employer postponed negotiations pending its review of the
jurisdictional issue raised by the Charging Party in its letter of
July 16, and the filing of the subject charge against the Employer
on August 21. Contrary to the General Counsel, I find that there
was never a firm refusal to negotiate by the Employer. Indeed,
once the legal review was finalized, the Employer agreed to re-
sume negotiations and held two additional bargaining sessions on
November 7 and December 4. See Massey-Ferguson, Inc., 184
NLRB 640, 644 fn. 6 (1970) (employer notified the union that it
was suspending bargaining to obtain legal advice regarding the
impact of a decertification petition).17
Second, I find that there was never an obligation by the Em-
ployer to commence negotiations for a successor Shop Agree-
ment because neither of the parties gave 90 days advance notice
to the other to open negotiations. Indeed, the Charging Party
Attorney conceded this fact in a January 23, 2009 letter to the
Regional Director wherein he stated that neither party gave the
required 90 days advance notice to the other and therefore, the
Shop Agreement renewed for the time period of June 1 through
May 31, 2009 (R. Exh. 24).18 Therefore, since the Respondent
Employer never had an obligation to negotiate over a successor
Shop Agreement in the first place, it did not independently refuse
to do so on August 25, or unlawfully delay the bargaining proc-
ess. Since the Shop Agreement renewed on June 1, the actions of
the Employer in voluntarily meeting with the Charging Party to
explore possible revisions to the existing agreement cannot be
construed as a waiver by the Employer in not previously object-
ing to the timeliness of the reopener notice.
Lastly, I note that the Respondent Employer argues that it was
privileged to not engage in bargaining on August 25 because the
Charging Party insisted upon negotiating to expand the scope of
the unit, a permissive subject of bargaining.

17 The General Counsel’s reliance on Dresser Industries, 264 NLRB
1088 (1982), is misplaced. In that case the respondent refused to con-
tinue bargaining with the union. In the subject case, bargaining was
postponed not permanently canceled.
18 See also GC Exhs. 16 and 18, that confirms this fact and notes that
no future contract negotiations are necessary.
Contrary to the Respondent Employer, I find that the facts do
not substantiate this position. Rather, Spinnato testified that he
asked Dhein at the August 14 negotiation session whether the
Charging Party intended to represent everyone in the shop and
Dhein replied that they have no position and are not taking a
stance. Charging Party Director of Organizing Mark Kramer,
who attended the August 14 negotiation session, testified that he
never informed any of the Employer negotiators that the Mill-
wright Craft employees should be performing the marine equip-
ment line of work. Further, there was no evidence presented by
the Respondent Employer that the Charging Party attempted to
negotiate over expanding the scope of the unit or that they would
negotiate to impasse on this issue at any of the bargaining ses-
sions held between the parties. Lastly, the Respondent Em-
ployer’s reliance on the Charging Party’s letter of July 16 is also
unavailing. Nothing contained therein establishes that the Charg-
ing Party intended to negotiate over expanding the scope of the
unit.
Based on the totality of the above discussion, however, I find
that the Respondent Employer did not refuse to negotiate with the
Charging Party on August 25 or unlawfully delay bargaining.
Therefore, I recommend that paragraph 10 of the complaint be
dismissed and further recommend that the Respondent Employer
did not violate Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. United Kiser Services, LLC is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party and the Respondent Union are labor
organizations within the meaning of Section 2(5) of the Act.
3. Respondent Employer did not violate Section 8(a)(1), (2),
(3), and (5) of the Act because the underlying original and
amended unfair labor practice charges were untimely filed and it
did not refuse to negotiate or unlawfully delay bargaining as
alleged in the complaint.
4. Respondent Union did not violate Section 8(b)(1)(A) and
(b)(2) of the Act because the underlying unfair labor practice
charge was untimely filed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended19
ORDER
The complaint is dismissed.

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.