Kenmore Contracting Co.

National Labor Relations Board - Board Decisions

May 20, 1991

303 N.L.R.B. 1 (N.L.R.B. 1991)

1
303 NLRB No. 2
KENMORE CONTRACTING CO.
1 Kenmore was a member of CIEA.
2 The Respondents were not members of BEE and did not otherwise author-
ize BEE to bargain on their behalf.
Kenmore Contracting Co., Inc. and Sloan Steel
Erectors and Equipment Rental, Inc. and
International Association of Bridge, Structural
and Ornamental Iron Workers, Local No. 6,
AFL–CIO. Case 3–CA–11787
May 20, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On July 9, 1990, Administrative Law Judge Walter
H. Maloney issued the attached supplemental decision.
The General Counsel filed exceptions and a supporting
brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, as modified, and to adopt his recommended
Order as modified.
The instant proceeding is a backpay proceeding. In
the underlying unfair labor practice proceeding, the
Board found that the Respondents are alter egos and
that they violated Section 8(a)(5) and (1) of the Act by
failing or refusing to recognize and bargain collectively
with the Union and to apply the collective-bargaining
agreements to which the Respondent Kenmore was a
party, to the employees of the Respondent Sloan. Ken-
more Contracting Co., 289 NLRB 336 (1988) (recon-
sideration denied Dec. 23, 1988), enforced in an un-
published opinion (2d Cir. Sept. 5, 1989). The Board’s
Order, in relevant part, directed that the Respondents:
Maintain and give full effect to the 1981-1984
collective-bargaining agreement between [the
Union] and the Construction Industry Employers
Association, Inc. retroactive to February 1983,
and any amendments and subsequent agreements
covering the unit employees, retroactive to Feb-
ruary 26, 1983, including but not limited to: (1)
making whole all unit employees for any loss of
wages and benefits they may have incurred since
February 26, 1983, because of the Respondents’
failure to apply or maintain the established terms
and conditions of such agreements; [and] (2) mak-
ing required payments to the various trust funds
established by the collective-bargaining agree-
ments.
Thereafter, the Respondents filed a motion for re-
consideration with the Board which raised 8(f) issues.
On December 23, 1988, the Board issued an unpub-
lished decision that denied the Respondents’ motion
and left to the compliance stage questions concerning
the Respondents’ 8(f) status and whether, under the
terms of the underlying Order, the Respondents were
bound to any collective-bargaining agreements other
than the 1981–1984 Construction Industry Employers
Association, Inc. (CIEA) agreement that was in effect
when the unfair labor practices occurred.1
In determining the amount of backpay owed to
Sloan employees and the Union’s trust funds in the in-
stant proceeding, the judge narrowly interpreted the
Board’s underlying Order. Hence, he found that the
only collective-bargaining agreements potentially appli-
cable to the parties were those between CIEA and the
Union and that the only applicable agreement in fact
was the 1981–1984 CIEA-Union agreement because no
successor agreement was ever negotiated by these enti-
ties. Further, the judge construed the terms of the
1981–1984 CIEA agreement as requiring that contribu-
tions to trust funds named be made only on behalf of
union members, and found that no payments to the
funds were owed because Sloan employees were not
members of the Union or would not benefit from the
funds.
The General Counsel excepts to the judge’s failure
to find that in addition to the 1981–1984 CIEA con-
tract, the Respondents were bound by an interim work-
ing agreement executed by Jacqueline Hanley on be-
half of Kenmore on October 5, 1984, and pursuant to
the terms of the interim agreement by the 1984–1987
collective-bargaining agreement between the Union
and the Building and Erector Employers of Western
New York, Inc. (BEE), an employer association,2 from
June 1, 1984, through May 31, 1987, and from year
to year thereafter. The General Counsel also excepts to
the judge’s finding that no contributions to the various
funds are due and owing.
We agree with the judge’s finding that the only col-
lective-bargaining agreement enforceable under the
Board’s Order is the 1981–1984 CIEA agreement;
however, we do not agree with his rationale for that
finding or with his finding that no contributions are
owed to trust funds named in the agreement.
1. We note that nothing in the underlying Order was
intended to limit enforcement of the Order to CIEA-
Union agreements or to determine definitively the ap-
plicability or inapplicability of other collective-bargain-
ing agreements. Nor do we find in retrospect that the
language of that Order and the order denying reconsid-
eration lends itself to such a restrictive interpretation.
As stated in the decision on the reconsideration mo-
tion, the Board limited its decision to resolving only
the question before it, i.e., the Respondents’ alter ego
status and the attendant unfair labor practices. The
only agreement in evidence in the unfair labor practice
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In exceptions, the General Counsel expressly declined to challenge the
judge’s finding that international agreements executed by Kenmore in 1958
and 1980 are not enforceable through this proceeding.
4 In this regard, we find that any contractual obligations under the interim
agreement or any such further contractual obligations stemming from the in-
terim agreement’s reference to a subsequent agreement with BEE, a multiem-
ployer association with no perceptible relationship with CIEA, present issues
which are not integrally related to the issues raised in the underlying unfair
labor practice case. Cf. NLRB v. Fant Milling Co., 360 U.S. 301 (1959). It
is immaterial that the Union has been a party with the Respondents to both
the CIEA and interim agreements. That fact cannot revive the terminated 8(f)
relationship that existed between the Respondents and the Union by virtue of
the CIEA agreements, because, as noted, once an 8(f) bargaining relationship
is repudiated, the union’s bargaining status does not survive beyond the dura-
tion of the 8(f) contract.
5 Cf. Prestige Bedding Co., 212 NLRB 690 (1974).
proceeding was the 1981–1984 CIEA-Union contract.
The Board acknowledged the possibility that there
might exist subsequent collective-bargaining agree-
ments that could govern the wages and other terms and
conditions of employment of unit employees during
periods following the expiration of that agreement. Ac-
cordingly, in formulating its order requiring the Re-
spondents to adhere to all applicable collective-bar-
gaining agreements, the Board, of necessity, left the
identification of such agreements to the compliance
stage.
Nevertheless, as stated above, we agree that the only
agreement enforceable pursuant to the underlying
Order is the 1981–1984 CIEA agreement. In John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843
F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889
(1988), the Board stated among other things that col-
lective-bargaining agreements permitted by Section
8(f) shall be enforceable through the mechanisms of
Section 8(a)(5) and Section 8(b)(3) but that on expira-
tion of 8(f) agreements, the signatory union will enjoy
no presumption of majority status, and either party
may repudiate the 8(f) bargaining relationship.
On January 26, 1983, Jacqueline Hanley wrote a let-
ter to CIEA withdrawing the association’s authority to
bargain on behalf of Kenmore and terminating all con-
tracts to which Kenmore was bound by virtue of its
membership in CIEA. The letter stated that a copy was
being forwarded to each of the unions with which
CIEA negotiated, and the Union does not challenge the
validity of the actions set forth in the letter. Although
the letter did not also state that Kenmore was repudiat-
ing the 8(f) relationship as well, there were no steps
then taken by Kenmore indicating that it intended to
continue a bargaining relationship with the Union on
another contractual basis. To the contrary, Kenmore’s
conduct of operating through alter ego Sloan as a non-
union entity establishes that it intended just the oppo-
site, i.e., to sever completely its relationship with the
Union. Applying the principles set forth in Deklewa,
we thus find that Hanley terminated the 8(f) relation-
ship between Kenmore (and therefore Sloan) and the
Union by her letter of January 26, 1983, and that the
termination was effective on the contract’s expiration
on May 31, 1984. Accordingly, it is not the nonexist-
ence of a successor CIEA collective-bargaining agree-
ment that restricts backpay liability to the 1981–1984
CIEA agreement, as the judge found, but rather Han-
ley’s termination of the 8(f) relationship between the
Respondents and the Union.
Significantly, there is no evidence that Hanley took
action at any relevant time inconsistent with the repu-
diation of the 8(f) relationship, and the Respondents
were not party to any other collective-bargaining
agreement at that time on which backpay liability as
an alter ego could be assessed.3 We reject the General
Counsel’s contentions that Jacqueline Hanley’s execu-
tion of the interim working agreement on behalf of
Kenmore over 4 months later, on October 5, 1984,
provides any basis for extending the scope of the re-
medial coverage in this proceeding. Whatever contrac-
tual obligations may have ensued from Kenmore’s exe-
cution of the interim working agreement, these obliga-
tions are wholly separate from those stemming from
the previously terminated 8(f) bargaining relationship,
and thus are not enforceable in this proceeding.4
2. Regarding contributions to trust funds named in
the 1981–1984 CIEA agreement, we find that the
judge erred in construing the agreement to require that
contributions be made only on behalf of members. In
rationalizing this interpretation of the agreement, the
judge relied solely on capitalized references to ‘‘Iron-
workers’’ in that agreement as support for his finding
that this benefit was intended to be accorded solely to
unit employees who were members of the Union. We
find that such a restrictive interpretation is not to be
so readily inferred, particularly in view of precedent
clearly establishing the patent illegality of exclusive
bargaining agreement provisions which confer benefits
based solely on an employee’s union status.5 Accord-
ingly, we agree with the General Counsel that the use
of the term ‘‘Ironworker’’ throughout the collective-
bargaining agreement contemplates all employees cov-
ered by the agreement and not simply union members.
Additionally, we reject the judge’s more general rea-
soning that because Sloan employees may not benefit
from the named trust funds, the payment of contribu-
tions is inappropriate. As is evident from the language
in our original Order quoted above, the Respondents’
obligation to provide the trust fund contributions is not
directly conditioned on there being a certainty that the
employees will benefit from these funds. Rather, the
Board’s established premise that such employees may
have a future interest in the integrity of these funds is
sufficient linkage to warrant that the trust fund con-
tributions be paid. As restated in Roman Iron Works,
292 NLRB 1292 fn. 15 (1989), the diversion of con-
tributions from union funds may harm the funds and
undercut the ability of those funds to provide for future
3KENMORE CONTRACTING CO.
6 The 1981–1984 CIEA collective-bargaining agreement provides for the
payment of a 10-percent delinquency fee in the event of late payment or non-
payment of contributions to the funds. See Merryweather Optical Co., 240
NLRB 1213 (1979).
1 This date was the beginning of the 10(b) period.
needs. See also Stone Boat Yard v. NLRB, 715 F.2d
441, 446 (9th Cir. 1983), enfg. 264 NLRB 981 (1982).
Therefore, we find that the Respondents are liable to
pay contributions to the trust funds under the terms of
the 1981–1984 CIEA agreement for the period ending
with the effective repudiation of the 8(f) relationship,
May 31, 1984.
ORDER
The Respondents, Kenmore Contracting Co., Inc.
and Sloan Steel Erectors and Equipment Rental, Inc.,
Cheektowaga, New York, jointly and severally, and
their agents, officers, successors, and assigns, shall
(1) Pay to the employees named in the judge’s rec-
ommended Order the amounts of net backpay set forth
opposite their names, with interest as prescribed in the
recommended Order.
(2) Pay to the trust funds named below the amounts
opposite the names of the funds.6
Fund Contribution Delin-quency Total
Health Care Fund $2,828.19 $282.82 $3,111.01
Pension Fund 3,666.51 366.65 4,033.16
Vacation Fund 2,361.38 236.14 2,597.52
Joint Apprenticeship
Fund 79.09 7.91 87.00
C.I.F. Fund 110.73 11.07 121.80
SUPPLEMENTAL DECISION
WALTER H. MALONEY, Administrative Law Judge. On
June 24, 1988, the Board issued a decision and order in
which it found both Respondents guilty of a violation of Sec-
tion 8(a)(1) and (5) of the Act. This Order was affirmed by
the United States Court of Appeals for the Second Circuit in
an unpublished decision issued on September 5, 1989. The
details of the Board’s decision and rationale are set forth in
its decision and need not be repeated here. In summary, the
Board found that the Hanley family—husband, wife, and two
adult children—owned, operated, and controlled both Ken-
more Contracting Company, Inc. (Kenmore), and Sloan Steel
Erectors and Equipment Rental, Inc. (Sloan). Both companies
were engaged in the steel erection business and in the rental
of steel erection equipment. Sloan was found to be an alter
ego of Kenmore.
Kenmore was a union company and had a contract with
Ironworkers Local 6 as well as other labor organizations in
the building trades in Western New York State. Its contract
with Local 6, as well as contracts with other building trades
locals, were negotiated for Kenmore by an employer associa-
tion, the Construction Industry Employers Association, Inc.
(CIEA), of which Kenmore was a member. In fact, in 1981,
when Kenmore and Local 6 concluded their last agreement,
Hugh P. Hanley Jr., a principal in Kenmore, was a member
of the CIEA negotiating committee.
Because of changes in the construction industry in West-
ern New York State, the Hanley family established Sloan to
operate as a steel erection company in the nonunion or open
shop segment of the building industry in that locality. The
Board found that, by failing to apply to Sloan’s employees
the terms and conditions of the 1981–1984 CIEA contract
with Local 6, both Respondents violated the Act. It ordered
both Respondents to ‘‘maintain and give full effect to the
1981–1984 collective-bargaining agreement between Iron
Workers Local No. 6 and the Construction Industry Employ-
ers Association, Inc., retroactively to February 26, 1983,1 and
any amendments and subsequent agreements covering the
unit employees, retroactive to February 26, 1983.’’ The
Order went on to provide a make-whole remedy, which in-
cluded ‘‘making required payments to the various trust funds
established by the collective-bargaining agreements.’’
The record in this phase of the case reflects that the Han-
leys, viewed in the light of their total activities in the steel
erection business, completely left the unionized segment of
that business in 1984, with one exception to be discussed
later. On January 26, 1983, Jacqueline C. Hanley, president
of Kenmore, wrote a letter to CIEA, which stated:
Please be advised that Kenmore Contracting Co.,
Inc., no longer wishes the Construction Industry Em-
ployers Association to negotiate with any of the respec-
tive basic trades on its behalf for the forthcoming con-
tracts.
A copy of this letter is being forwarded to each of
the unions with whom the association negotiates. Fur-
thermore, this letter should be considered as the notice
of termination under each of the contracts.
The letter indicated that copies were sent both to Local 6 and
to the other building trades locals with whom CIEA nego-
tiated. Thomas Michaels, financial secretary-treasurer and
business agent of Local 6, admits that his Union received a
copy of this letter.
CIEA was composed of more than 100 general contractors
and subcontractors who utilized union referrals in 8 different
trades. On the expiration of contracts which ended in 1984,
it ceased negotiating with all of these unions except the La-
borers. Since that time CEIA has had contracts only with La-
borers Local 210.
In the Western New York area served by Iron Workers
Local 6, there is another employer association made up ex-
clusively of contractors who employ ironworker employees.
Called the Building and Erector Employers of Western New
York, Inc. (BEE), it is composed of eight members. How-
ever, other so-called independents who wish to secure refer-
rals from the Local 6 hiring hall are required to adopt the
Local 6-BEE contract and do so by signing the document
which the Union and the Association negotiate. These parties
had an agreement, running from 1981 through 1984. It was
identical in its terms to the CIEA-Local 6 agreement, at issue
in the complaint portion of this case and referred to in the
above-quoted excerpt from the Board’s order. Neither Ken-
more nor Sloan has ever designated BEE as its bargaining
representative and the General Counsel concedes that neither
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 These trust funds are the Health Care Fund, the Pension Fund, the Vaca-
tion Fund, the Joint Apprenticeship Fund, the Construction Industry Fund
(CIF), an Annuity Escrow Fund, a Guarantee Fund, and another fund set up
to pay supplemental medical benefits.
employer was a party to the 1981–1984 Iron Workers agree-
ment with BEE.
As noted above, Kenmore went out of the steel erection
business and, with one miniscule exception, has remained out
of that business during the backpay period covered by the
Specification. Its business activities have been confined ex-
clusively to equipment rentals. Michaels admitted as much,
stating that there were no union referrals to Kenmore, no
trust fund payments by Kenmore, and, to his knowledge, no
union members employed by either Kenmore or Sloan during
the backpay period. Neither Kenmore nor Sloan ever exe-
cuted the 1984–1987 contract between BEE and Local 6 nor
the agreement concluded by these parties for the period
1987–1990.
Sloan has continued to operate on a nonunion basis during
this period of time. The General Counsel seeks to impose
backpay liability on Sloan, as the alter ego of Kenmore, dur-
ing that portion of the backpay period beginning June 1,
1984, on the basis of two agreements signed by Kenmore
with the Iron Workers International in 1958 and 1980, and
on the basis of an interim agreement, signed by Kenmore
with Local 6 on October 5, 1984. Kenmore signed the in-
terim agreement in order to obtain a Local referral on the
Tops job, a union job which Kenmore performed in Western
New York State in late 1984 or early 1985. By virtue of
these contractual undertakings by Kenmore, the General
Counsel and the Charging Party seek to tie both Kenmore
and Sloan to the ongoing relationship between BEE and
Local 6 and to backpay liability on the part of Sloan which
would continue on even after the immediate matters involved
in this litigation are resolved. The backpay period at issue
herein ceases on December 10, 1989, but, in the view of the
Charging Party and the General Counsel, this is merely a
temporary respite necessitated by the fact that the General
Counsel’s investigation into the books of Sloan was sus-
pended as of that date to permit the preparation and prosecu-
tion of the Specification herein. According to that Specifica-
tion, as amended, liability to that date for wages for 98 Sloan
employees amounts to $455,166.94, payments to eight joint
union-employer trust funds on their behalf amounts to
$444,923.39, and delinquent fees for late payments of trust
fund contributions amounts to $44,492.33. The grand total is
$944,582.66, on which interest would be assessed in accord-
ance with the Board’s decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). I regard the contentions of
the Charging Party and the General Counsel regarding any
backpay liability after May 31, 1984, to be farfetched and
fanciful and their position oppressive, punitive, and wholly
unconscionable.
In addressing the several contentions of the General Coun-
sel, two observations should be made at the outset. Hanley,
who defended both Respondents pro se at the backpay hear-
ing, said in his opening remarks that Sloan, a nonunion con-
tractor, does not observe strict craft lines and that its employ-
ees are not all engaged in ironworking. Some of them per-
form the functions of carpenters, bricklayers, truckdrivers,
and members of other trades. The Board order in the com-
plaint case was restricted to the CIEA-Local 6 contract which
covers only ironworking and spells out in considerable detail
just what that work involves. The original Specification made
no distinctions between the ironworking performed by Sloan
employees named in the Specification and other work they
might perform. At the hearing, the General Counsel amended
the Specification to reduce the backpay liability throughout
the entire period to an amount which is 80 percent of what
was requested in the original Specification in order to ac-
knowledge the merit of Hanley’s contention. Hanley agreed
that this reduction appropriately reflected the amount of work
that Sloan employees did that would have been covered by
the Local 6-CIEA contract, had it been applicable, as distin-
guished from work which would be done by members of
other trades. The record was kept open to receive into evi-
dence the amended Specification. It is received into evidence
and will control and limit this proceeding.
The Board order specifically addressed the Local 6-CIEA
contract which expired May 31, 1984, as that contract was
the only one before it when the complaint portion of this
case was litigated. Its order directed a make-whole remedy
based on that contract, as well as any amendments and sub-
sequent agreements covering unit employees. The sums in
question in the Specification relating to amounts due and
owing for wages paid to Sloan employees between the begin-
ning of the 10(b) period and the expiration of the above-ref-
erenced contract on May 31, 1984, apply only to 17 Sloan
employees who were on its payroll at that time. The aggre-
gate liability for wages alleged in the amended complaint for
that period of time is only $25,656.17 (plus interest), a far
cry from the $455,166.94 (plus interest) requested by the
General Counsel in the wage portion of the Specification. Li-
ability for these wages is already firmly established in the
Board order, enforced by the court of appeals, and may not
be disturbed in this proceeding.
The General Counsel also seeks from the Respondents
payments allegedly due and owing to a total of eight joint
employer-union trust funds referred to in the Local 6-CIEA
contract, together with a 10-percent penalty established by
that contract for late payments.2 Trust fund and penalty pay-
ments are sought not only for the initial segment in the tri-
furcated backpay period noted above, which is separately set
forth in the Specification, but also for the periods covered by
the 1984–1987 and 1987–1980 contracts between Local 6
and BEE.
The Board’s make-whole remedy refers to ‘‘making re-
quired payments to the various trust funds established by the
collective bargaining agreeents.’’ In addressing this require-
ment, it is important to note that the individual Sloan em-
ployees named in the Specification, not the Union or the
trustees of the eight trust funds, are the discriminatees in this
case for whom the make-whole remedy is designed. The
Board pointed out in its initial decision that the CIEA-Local
6 agreement prohibits members of Local 6 from working for
nonunion contractors. Michaels testified that he knew of no
members who had worked for Sloan during the backpay pe-
riod, and there is no indication from union referral or trust
fund records that any did. It is quite clear from this record
that none of the 98 Sloan employees named in the Specifica-
tion is a member of Local 6 nor was a member during the
backpay period covered by any portion of the Specification.
Eligibility for benefits under these trust agreements is set
forth in the CIEA-Local 6 agreement. The language used in
5KENMORE CONTRACTING CO.
3 The General Counsel notes that this contract was actually invoked by Ken-
more to perform a job on the Bethlehem Steel job but the record is silent as
to where that job was located or when it was performed. Michaels testified
that the job was performed with members of a regular complement of iron-
worker employees which Kenmore used when it was still in the construction
business. Since I have credited testimony in the record that Kenmore did not
employ members of Local 6 after May 31, 1984, except on the Tops job, I
conclude that the Bethlehem Steel job was performed sometime before the ef-
fective date of the 1984–1987 Local 6-BEE contract.
the contract to define eligibility differs only slightly from
fund to fund. In the clauses establishing some of the funds,
eligibility to participate is conferred only on an ‘‘Iron-
worker’’ (with a capital I), meaning a member of Local 6,
or ‘‘Ironworker Journeyman and working apprentice.’’ The
measure of employer contributions is normally a fixed sum
per hour worked by an ‘‘Ironworker.’’ It is clear that the
only persons eligible to receive benefits from these funds are
members of Local 6 (or possibly other Iron Worker locals
whose members might be working temporarily in the juris-
diction of Local 6). It is equally clear that none of the 98
nonmembers named in the Specification are or would be eli-
gible to receive any benefits from these funds during the
backpay period or at any other time, unless and until they
are admitted to membership in Local 6.
The make-whole statutory scheme established by the Act
is exclusively remedial. The Board may not use its processes
to punish anyone. If the Respondents in this case are re-
quired to make payments to the eight trust funds named in
the Specification based on money assertedly due and owing
to or for Sloan employees, this money will not and cannot
be used for the benefit of any of the 98 nonmember employ-
ees named in the Specification because they are ineligible to
receive benefits which are restricted exclusively to union
members. As to them, there is nothing remedial about a re-
quirement aimed at trust fund payments which will provide
them nothing. As pointed out above, it is they who are the
exclusive beneficiaries of the Specification. Requiring the
Respondents to make trust fund and delinquent penalty pay-
ments to the funds here in question in the amount of several
hundred thousand dollars will confer an enormous and
unmerited windfall on those funds but will in no way further
the remedial purposes and policies of the Act. As to the Re-
spondents, such payments can be only burdensome and puni-
tive. Accordingly, I will not recommend to the Board that the
Respondents herein be required to make any trust fund or de-
linquent payments for any of the periods set forth in the
Specification.
The General Counsel seeks backpay for Sloan employees
for the periods covered by the two Local 6-BEE contracts
from two employers who never signed or adopted those con-
tracts and who never specifically authorized BEE to nego-
tiate on their behalf. Any such liability must proceed on the
premise that somehow Kenmore and Sloan, its alter ego,
were in privity of contract with Local 6 so that they were
contractually obligated to pay employees doing iron work
whose names are on either of their payrolls in accordance
with the terms and conditions set forth in Local 6-BEE con-
tracts.
To support this contention, the General Counsel looks first
to a contract entered into by Kenmore back in 1958 with the
Iron Workers International covering work to be performed
outside Kenmore’s home area. The contract in question has
no termination date.3 By entering into this contract, an em-
ployer recognizes the Iron Workers International, not any af-
filiated local, as the bargaining agent to carry out the limited
terms and conditions set forth in the contract. It agrees ‘‘to
abide by the General Working Rules of this Association (the
International) and to pay the scale of wages, work the sched-
ule of hours and conform to the conditions of employment
in force and effect in the locality in which the Employer is
performing or is to perform work . . . .’’ A signatory also
‘‘agrees to employ Journeymen in any territory where work
is being performed or is to be performed in accordance with
the Referral Plan in force and effect in the jurisdiction of the
Local Union where such work is being performed or is to
be performed.’’
Michaels explained that this agreement permits an em-
ployer, with the permission of the International, to go into
any locality and obtain referrals from the local Iron Worker
union, provided the employees referred are employed under
local wages and working conditions, even though such wages
and working conditions might be different from what is ob-
served in the employer’s home area. By following this agree-
ment, a signatory can avoid actually entering into a contract
with an Iron Worker local in another area in which he wants
to perform a job. In the absence of this agreement, an em-
ployer working outside his home area would actually have to
execute a contract with the Iron Worker local for the area
in which his job was located if he wanted referrals and want-
ed to work union.
The General Counsel says that this agreement puts Ken-
more and Sloan in privity with Local 6, so that they are con-
tractually bound to any contract to which Local 6 is a party.
The whole thrust of the agreement is to accord recognition
to the International, not to any area local, and to avoid the
necessity of becoming a party to a local agreement. If this
is true with respect to a local in another area, it is surely true
with respect to a local in an employer’s own home area, if,
in fact, the agreement had any relevance to work in an em-
ployer’s home area. It manifestly does not.
Moreover, this agreement lies outside the parameters of
the Board’s remedial order, which was issued in conjunction
with its decision in the complaint portion of this case. That
order directed both Respondents to maintain and give full ef-
fect ‘‘to the 1981–1984 collective bargaining agreement be-
tween Iron Workers Local 6 and CIEA . . . and any amend-
ments and subsequent agreements covering the unit employ-
ees . . . .’’ (Emphasis supplied.) Necessarily this order re-
fers only to amendments and subsequent agreements between
CIEA and Iron Workers Local 6, not any subsequent (or ear-
lier) agreement between Kenmore and the Iron Workers
International, because the Local 6-CIEA agreement was the
only contract litigated in that proceeding or mentioned in any
way in the decision of the Board or the administrative law
judge who heard that case. Accordingly, this facet of the
General Counsel’s argument must fail.
He makes the same argument respecting an agreement be-
tween the National Council of Erectors, Fabricators and
Riggers (NCEFR) and the Iron Workers International, which
Kenmore accepted on March 17, 1980. This contract does
not cover all ironworking but is applicable only to certain
phases of the trade, namely remodeling, repair, replacement,
maintenance, and renovation work. Here again the employer
signatory to the agreement recognizes and enters into privity
with the Iron Workers International, not any specific local,
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Michaels testified that he never presented either the 1984–1987 agreement
or the 1987–1990 agreement with BEE to Kenmore for signature.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
and agrees to abide by local wages and conditions when
working in a particular area. The agreement is more detailed
than the 1958 contract, referred to above, mainly in that it
establishes certain trust funds and obligates employer sig-
natories to contribute to them. It also is more specific con-
cerning hours of employment, transportation, shifts, and
overtime. This contract does not incorporate by reference any
contract made by Local 6 nor does it require or even suggest
that a signatory enter into privity of contract with Local 6.
Moreover, it does not cover all bargaining unit work em-
braced in the Local 6-CIEA contract referred to in the
Board’s order. Most important, it is not the Local 6-CIEA
contract referred to by the Board in its order, nor is it an
amendment thereto. It is also not a subsequent agreement be-
tween those parties. Therefore, like the 1958 contract be-
tween Kenmore and the International, this 1980 agreement
falls outside the ambit of the Board’s remedial order in this
case and does not serve to extend backpay liability of the
Respondents beyond the expiration of the contract set forth
in the Board’s order.
About 6 months after the expiration of the Local 6-CIEA
contract and while a contract between Local 6 and another
employer organization, BEE, was being negotiated, Kenmore
was in need of a union ironworker to man the Tops job. Ac-
cording to testimony from Mrs. Hanley, she met with George
J. Colern, Recording Secretary of Local 6, at a hot dog stand
across the street from the Kenmore office and signed a docu-
ment entitled ‘‘Interim Working Agreement.’’ The date of
this meeting was established as October 5, 1984.
The interim agreement provided, in part:
On and after June 1, 1984, we, the undersigned,
agree that we will comply with all wages, fringe bene-
fits and conditions of the new agreement negotiated by
Iron Workers Local No. 6 for all members and non-
members of the Building and Erectors Employers of
Western New York, Inc.
. . . .
This agreement shall be in force until such time as
a successor agreement is adopted and printed. Upon
adoption of the successor agreement, the union and the
employer shall immediately sign and execute the suc-
cessor agreement.
On February 13, 1985, Local 6 sent a detailed letter to BEE
in which it detailed the changes to the 1981–1984 agreement
that had been agreed on during the negotiations of the pre-
vious ten months. The letter stated that ‘‘the following
wages, terms, and conditions shall amend the 1981–1984
contract between (Local 6) and (BEE).’’ It provided that
‘‘the contract shall remain in effect from June 1, 1984, to
May 31, 1987.’’ In 1987, as noted above, a new three-year
contract was concluded between these parties. Neither con-
tract was ever printed in booklet form, apparently because
the employer association did not want to bear the expense of
printing. Kenmore never signed or executed the 1984–1987
successor agreement or any other subsequent agreement with
Local 6. It is on the basis of the above-quoted provision that
the General Counsel argues that both Respondents have been
and remain in continuous privity with Local 6 throughout the
backpay period and are still in privity with the Union, so that
all nonunion employees of Sloan must be compensated in ac-
cordance with all terms and conditions of the Local 6-BEE
contracts as they are negotiated and renegotiated from time
to time.
Giving it the most liberal and expansive interpretation pos-
sible, the interim agreement executed by Mrs. Hanley on Oc-
tober 5, 1984, with Local 6 expired on February 13, 1985,
the day on which Local 6 and BEE concluded their negotia-
tions and entered into a successor agreement to the 1981–
1984 agreement covering the ensuing 3 years. On that date
the interim period contemplated by the interim agreement
came to an end and the contract which was not yet con-
cluded when the interim agreement was signed then came
into effect. The interim agreement may, by its terms, have
obligated Kenmore to sign the 1984–1987 successor agree-
ment, but Kenmore did not do so. Giving the interim agree-
ment a reading most unfavorable to Kenmore would mean
that, by its failure to sign the 1984–1987 successor agree-
ment, Kenmore was in breach of the interim agreement with
Local 6.4 That default might mean that Kenmore had
breached the interim agreement and that Local 6 was under
no further obligation to refer ironworkers to Kenmore from
its hiring hall, but this was a situation which Kenmore could
readily live with since Kenmore was no longer in the steel
erection business and had no further need of Local 6 refer-
rals. However, such a failure to abide by its undertaking to
execute a new agreement when Local 6 and BEE had come
to terms could not possibly make Kenmore, or its alter ego,
a party to that agreement. When Kenmore failed to sign any
more agreements with Local 6, it was no longer in any kind
of contractual privity with Local 6 and was no longer obli-
gated to abide by the terms and conditions of any agreement
which Local 6 might enter into with any other employer or
any other employer association. Perforce the same holds true
with respect to Kenmore’s alter ego.
What was said before with respect to the ambit of the
Board’s remedial order to contracts between Kenmore and
the International applies with equal force to contracts entered
into between Local 6 and BEE. The Board order obligates
Kenmore and Sloan to give full effect to ‘‘the 1981–1984
collective-bargaining agreement between Iron Workers Local
6 and CIEA . . . and any amendments and subsequent agree-
ments covering the unit employees . . . .’’ (Emphasis sup-
plied.) However, as stated above, the latter phrase means any
subsequent agreements between Local 6 and CIEA, not sub-
sequent agreements between Local 6 and BEE or some other
employer. Accordingly, so much of the Compliance Speci-
fication which imposes liability on the Respondents for fail-
ing to apply the terms and conditions of the Local 6-BEE
contracts to Sloan’s nonunion employees on and after June
1, 1984, must be dismissed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondents, Kenmore Contracting Co., Inc., and
Sloan Steel Erectors and Equipment Rental, Inc.,
7KENMORE CONTRACTING CO.
6 See New Horizons for the Retarded, supra.
Cheektowaga, New York, jointly and severally, and their
agents, officers, successors, and assigns, shall pay to their
employees the amounts of net backpay set forth below oppo-
site the names of the employees, with interest thereon at the
rate prescribed in the Tax Reform Act of 1986 for the over-
payment and underpayment of income tax,6 less withholding
for income taxes for social security required by Federal and
state laws:
Louis Cooper $134.06
Robert W. Cooper 1,030.24
Wilson L. Cooper, Jr. 178.74
Joe DiFrancisco 466.71
Mitchell Duval $2,312.87
Frederick L. Gleave, Jr. 786.96
William E. Hamann 2,285.66
Hugh Hanley, III 1,393.41
Patrick Hanley 151.05
David Isaacs 3,879.70
David B. Jimerson 945.83
Mitchell A. Marciszewski 494.31
Loren A. Mika 238.32
James J. Morgan 248.25
Terry D. Orton 51.44
Douglas Preisch 372.38
Michael E. Schroder 696.24