American Thoro-Clean, Ltd. And Unico, Ltd.

National Labor Relations Board - Board Decisions

May 26, 1987

283 N.L.R.B. 1120 (N.L.R.B. 1987)

1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
American Thoro-Clean, Ltd., and Unico , Ltd. and
United
.
Slate, Tile and Composition Roofers,
Damp and Waterproof Workers' Association,
Local Union No. 11 of Chicago, Illinois, Inter-
national Union of Roofers , -Waterproofers and
Allied Workers,,AFL-CIO. Case 13-CA-22573
26 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 19 December 1983 Administrative Law
Judge David S. Davidson issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and ,a motion that the Board consider
a related case involving these same parties (Case
13-CA-21389) and the instant case, Case 13-CA-
22573, together before the same Board panel. The
General Counsel and the; Charging Party each filed
briefs in, response to the Respondent's exceptions
and each filed motions to strike certain portions of
the Respodent's exceptions and brief. The General
Counsel also filed a response in opposition to the
Respondent's motion, and the Charging Party also
filed a motion that the Board impose sanctions
against,the Respondent's counsel. The Respondent
filed a response in opposition to, the motions of the
General Counsel and the Charging Party. The
Charging Party filed a motion to strike the Re-
spondent's response in opposition to the motions of
the General Counsel and the Charging Party.'
i Inasmuch as the instant case is being considered by the same three-
'member panel that considered Case 13-CA-21389, we find it unnecessary
to rule on the Respondent's motion.
Following the hearing, the Respondent attached a posthearing affidavit
and three exhibits (two of-them dated posthearing) to its brief to the ad-
ministrative law judge. One of the exhibits had been ruled inadmissable at
the hearing and placed in the rejected exhibits file In fn 3 of the at-
tached decision, the judge granted the joint motion of the General Coun-
sel and the Charging Party to strike these attachments from the Respond-
ent's brief to the judge The Respondent has attached the same affidavit
and three exhibits to its brief to the Board in support of exceptions to the
judge's decision The General Counsel and the Charging Party have filed
motions to' strike these attachments from the Respondent's brief to the
Board We affirm the judge's ruling striking this posthearing affidavit and
exhibits from the Respondent's brief to the judge, and we render that
same ruling here the motions of the General Counsel and the Charging
Party to strike the attachments to the Respondent's brief in support of
exceptions are granted We note, in any event, that consideration of the
stricken material would not have led, us to a different result than that
which we reach in this case
The General Counsel and the Charging Party also filed motions to
strike certain portions of the Respondent's exceptions and brief to the
Board in support of exceptions In this regard, the General Counsel
and/or the Charging Party contend that the Respondent, in its exceptions
and supporting brief, has improperly attempted to reopen argument on
the issues addressed in earlier Case 13-CA-21389, improperly argued that
the Charging Party acted unlawfully in filing the instant unfair labor
practice charges against the Respondent, filed frivolous exceptions, failed
to comply with the Board's procedural requirements for materiality, spec-
ificity, conciseness, and clarity of grounds for exceptions, and misstated
or mischaracterized the judge's decision or record evidence The motions
to strike are denied; however, consideration of the challenged portions of
The National Labor Relations Board has delegat-
ed 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; and
conclusions only to the extent consistent with this
Decision and Order.
The issue in this, case is whether, the Respondent
violated Section 8(a)(5) and (1) of the Act by repu-
diating its collective-bargaining agreement with,
and withdrawing recognition from, the Union; fail-
ing to pay contractually required wages; and failing
to make contractually required contributions to
various fringe benefit funds.
1. FACTS '
This case is a sequel to American Thoro-Clean,
Ltd., 283 NLRB 1107 issued, today (American
Thoro-Clean 1), involving the instant parties. In
American Thorn-Clean I, the Board applied its
recent decision in John Deklewa & Sons, 282 NLRB
1375 (1987), and found that the Respondent 'violat-
ed Section 8(a)(5) and (1) of the Act by repudiating
its 8(f) collective-bargaining agreement with the
Union, by substantial noncompliance with that con-
tract during its term. Some of the facts established
in American Thoro-Clean I are material to the reso-
lution of the instant case.
As found in American Thoro-Clean I, beginning
in 1977 the Respondent and the Union entered into
a series of collective-bargaining agreements permit-
ted under Section 8(f) of the Act. In February
1980, the Respondent became a member of the Chi-
cago Roofing Contractors' Association (CRCA), a
multiemployer association which, inter alia, negoti-
ated collective-bargaining agreements on behalf of
its members. On 1 June 1981 the CRCA (of which
the Respondent was then a member) and the Union
entered into a collective-bargaining agreement for
the period 1 June 1981 thru 31 May 1982. As found
the Respondent's exceptions and supporting brief has not affected the
result we reach in this case
The Charging Party has also moved the Board to impose sanctions
against the Respondent's counsel for alleged procedural improprieties in
his litigation of this case More specifically, the Charging Party requests
that the Respondent or its counsel be ordered to compensate the Charg-
ing Party for the assertedly excessive costs, expenses, and attorneys' fees
incurred by the Charging Party as a result of the Respondent's allegedly
dilatory, frivolous, and bad-faith tactics Although we do not endorse all
the litigation tactics employed by the Respondent's counsel, we neverthe-
less do not find that these tactics reached the level of bad-faith litigation
and willful abuse of judicial process to warrant imposition of such sanc-
tions as requested by the Charging Party See generally Roadway Express
v Piper, 447 U S. 752 (1980). Accordingly, the Charging Party's motion
for the imposition of sanctions is denied
Finally, the Charging Party filed a motion to strike the Respondent's
responses in opposition to the earlier motions of the General Counsel and
the Charging Party This motion is denied
283 NLRB No. 170
AMERICAN THORO-CLEAN
in American Thoro-Clean I, this, too, was an 8(f)
agreement.
On 1 April 1982,2 at the hearing in American
Thoro-Clean I, the Respondent, through its attor-
ney, stated its position that the successive collec-
tive-bargaining agreements between the Respond-
ent and the Union were prehire agreements (i.e.,
permitted under Sea. 8(f) of the Act); that at no
time since the inception of those agreements had
the Union ever achieved the support of a majority
of the employees in the unit; and that, therefore, in
accordance with the Respondent's view of the law,
the 1 June, 1981 thru 31 May 1982 contract was
voidable. The Respondent's attorney then gave
oral notice to the Union that the Respondent in-
tended to "cancel and terminate" its existing 1 June
1981 thru 31 May 1982 collective-bargaining agree-
ment with the Union; withdraw recognition from
the Union; and withdraw from membership in the
CkCA.3 The same day, 1 April, the Respondent
gave written notification to the Union and to the
CRCA that the Respondent was withdrawing its
recognition of the former and its membership in
the latter.
After -31 May the Respondent neither paid the
wage rates required by the expired collective-bar-
gaining agreement nor made contributions to the
various fringe benefit funds, as specified in the ex-
pired contract. In July, the Respondent modified
the employees' health insurance.
II. ANALYSIS AND CONCLUSION
As we found in American Thoro-Clean I, the 1
June 1981- thru 31 May 1982 contract in effect be-
tween the parties was a collective-bargaining
agreement permitted under Section 8(f) of the Act.
In Deklewa, supra, we held that although a collec-
tive-bargaining relationship permitted by Section
8(f) may not be unilaterally repudiated during its
term, and may be enforced during 'its term under
the provisions of Sections 8(a)(5) and 8 (b)(3), such
an 8(f) relationship may lawfully be unilaterally re-
pudiated by either party upon the expiration of its
term .4 Thus; the Respondent 's failure to pay con-
tractual wages and to make contractually required
contributions to fringe benefit funds since 1 June
(i.e., following the 31 May expiration of the con-
tract) and its modification of health insurance cov-
erage in July are not unlawful under Deklewa.
However , the Respondent 's 1 April repudiation
of the collective-bargaining agreement and with-
drawal of recognition of the Union were prior to,
2 All subsequent dates are 1982, unless otherwise indicated
a There is no allegation that the Respondent's notifications of intent to
cancel the contract and withdraw from the CRCA were untimely.
4 2$2 NLRB at 1375, 1376, 1382.
1121
the 31 May expiration of this 8(f) collective-bar-
gaining agreement and were therefore in violation
of Section 8(a)(5) and (1) of the Act.'
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. 6
ORDER,
The National Labor Relations Board orders that
the Respondent, -American Thoro-Clean, Ltd. and
Unico, Ltd.,, Mokena, Illinois, -its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Repudiating its 1 June 1981 thrll 31 May 1982
collective-bargaining agreement with the Union
and withdrawing recognition' of the Union as the
exclusive collective-bargaining representative of
the Respondent's employees covered by that agree-
ment, during the term of that agreement, ' through
31 May 1982.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the-ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative 'action neces-
sary to effectuate the policies of the Act.'
(a) Post at its Mokena, Illinois office copies of
the attached notice marked "Appendix." Copies
of the notice, on forms, provided by the Regional
Director for Region 13, after being signed by the
Respondent's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices 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 John Deklewa & Sons, supra.
6 As part of our remedy for the Respondent's unfair labor practices in
American Thoro-Clean I, we have ordered the Respondent to comply
with the terms of its 1 June 1981 thru 31 May 1982 ,collective-bargaining
agreement for the duration of its term and to make employees whole for
any -losses they may- have suffered as a result of the Respondent's failure
to comply with the agreement until it expired Inasmuch as that is the
same obligation that we would impose on the Respondent as a remedy
for its 1 April repudiation of the contract and withdrawal of recognition
in the instant case, we shall not require a"make-whole remedy or compli-
ance with the contract in this case
' 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 Nation-
al 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 "
1122 DECISIONS OF THE NATIONAL-LABOR RELATIONS BOARD
(b) Sign, and return to the Regional Director suf-
ficient copies of the attached notice marked, "Ap-
pendix" for posting by the Union, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(c) Notify the Regional Director in writing
within 20 days from. the date of this Order what
steps the -Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
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 -ordered us'to post and abide by this notice.
WE WILL NOT withdraw recognition from, or re-
pudiate our collective-bargaining agreement with,
United Slate, Tile and Composition Roofers, Damp
and" Waterproof Workers' 'Association, Local
Union No. 11- of Chicago, 'Illinois, International
Union of Roofers, Waterproofers and Allied Work-
ers, AFL-CIO, during the 1 June 1981 thru 31
May- 1982,term of that agreement. '
WE. WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise -of the- rights- guaranteed you by Section 7 of
the Act.
AMERICAN THORO-CLEAN, LTD. AND
UNICO, LTD.
Melvyn Basan, Esq., for the General Counsel.
Gerard, C. Smetana, Esq., of Chicago, Illinois, for the Re-
spondent.
"Margo R. Newman, Esq., of Chicago, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE,
DAVID S. DAVIDSON, Administrative Law Judge. This
case was tried in Chicago, Illinois, on May 16 and 17,
1983. The charge was filed by United Slate, Tile and
Composition Roofers, Damp and Waterproof Workers'
Association, Local Union ' No. 11, of Chicago Illinois,
International Union, of Roofers, Waterproofers and
Allied Workers, AFL-CIO (Local 11) on September 22,
1882, and"the 'complaint issued on November 4,, 1982.1
The only issue in this case is whether Respondent unlaw-
fully withdrew recognition from the Union on April 1,
1982, 'and made unilateral changes in terms and condi-
'- This 'case was later -consolidated with Case 13-CA-22666 but was
severed from that case after it was settled.
tions of employment in violation of Section 8(a)(5) and
(1) of the Act.
On the entire record,2 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the parties," I make the following
FINDINGS OF FACT
1. JURISDICTION
American Thoro-Clean, Ltd. is engaged in the business
of industrial vacuuming and cleaning of roofs. Respond-
ent Unico, Ltd. is engaged in the business of leasing
automobiles, trucks, and other goods. At all times materi-
al, American Thoro-Clean, Ltd. and Unico, Ltd. have
been affiliated business enterprises with common officers,
ownership, directors, management, and supervision.
They have formulated and administered a common labor
policy with respect to the employees of both operations,
have shared common premises and -facilities, have pro-
vided services for and made sales to each other, and
have interchanged personnel with each other. American
Thoro-Clean, Ltd. and Unico, Ltd. constitute a single-in-
tegrated business enterprise and a single- employer. They
are referred to jointly as, Respondent in this decision.
They provide annual services valued in excess of $50,000
for other enterprises that are themselves engaged- in
interstate commerce and that meet Board jurisdictional
standards, Respondent admits and I find that it is an em-
ployer engaged,in commerce within the meaning of Sec-
tion Z(6) and (7) of the Act. I find further that Local 11
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
This case is a sequel to American Thoro-Clean, Ltd.,
Case 13-CA-21389 decided by Administrative Law
Judge Robert A, Giannasi on December 14_1982, and
presently pending before the Board on exceptions. The
facts in that case can be briefly summarized. On August
23, `1977, Respondent and the Union entered into a col-
2 The General Counsel has filed a motion to correct the record. As the
corrections requested appear to be warranted, the General Counsel's
motion is granted.
" Respondent attached an affidavit and three exhibits to its posthearing
brief. Counsel for the General Counsel filed a motion to strike these at-
tachments that the Charging Party joined Respondent filed a motion for
leave to file opposition to the General Counsel's motion to strike and to
file a reply brief, which the General Counsel opposes. For the reasons set
forth by the General Counsel in his motion to strike, that motion is grant-
ed To the extent that Respondent's reply brief states the basis for Re-
spondent's opposition to the General Counsel's motion to strike, Re-
spondent's reply brief has been considered. However, Respondent's
motion for leave to file a reply, brief is otherwise denied for the, reasons
set forth in the General Counsel's response in opposition Although Re-
spondent contends that a reply brief is in order because it appeared to
Respondent during the trial that the General Counsel did not press his
contention as to the appropriate remedy for the alleged unilateral discon-
tinuation of dues payments by Respondent, the transcript shows that on
the second day of the hearing counsel for the General Counsel clearly
stated the same position that he took in his posthearing brief
AMERICAN THORO-CLEAN
lective-bargaining agreement for a unit of all employees
engaged in the application and installation of roofing ma-
terial and all other work in connection with or incidental
to that work . With one renewal that agreement contin-
ued in effect until May 31 , 1980 . In February 1980 Re-
spondent became a member of the Chicago Roofing
Contractors Association (CRCA), and from June 1, 1980,
until May 31 , 1982, Respondent 's employees were part of
the Association unit under agreement between CRCA
and the Union.
Under the terms of the successive agreements in effect
from August 23, 1977, through May 31, 1982, Respond-
ent's employees were required to become members of
Local 11 within 7 days after the beginning of their em-
ployment or the effective date of the agreement , and Re-
spondent was obligated to pay wage rates specified in
the agreement and to make payments on behalf of all
bargaining unit employees to various union trust funds,
including pension , welfare, and training funds.
As found by Judge Giannasi , during the period the
contracts were in effect , Respondent did not fully report
to the Local 11 trust funds all hours worked by all its
employees nor did it pay the contractual wage rates to
its employees . Furthermore , Respondent did not require
all employees to become union members, but paid for
union cards for some employees and supplied them to
others than the employees whose ' names were on them so
that they could show them to union agents when they
worked on union jobs . In July 1978, Local 11 learned
that Respondent was not paying contractual wage rates
and that some of its employees were not union members.
Local 11, filed a grievance against Respondent and
caused an investigation and audit to be made to deter-
mine Respondent 's compliance with the contract. On a
few later occasions , union agents checked Respondent's
jobsites and again discovered similar practices.
On August 4, 1981 , Local 11 filed the charge in Case
13-CA-21389, and the complaint issued thereafter alleg-
ing that Respondent had unilaterally changed fringe ben-
efit cons ributions , wage rates, and the union -security pro-
visions of the agreements ' without bargaining . Respond-
ent contended, among other things, that it was not obli-
gated to bargain with Local 11 because the original
August 23, 1977 contract was obtained through coercion,
because it did not accurately reflect the agreement of the
parties, and because all the agreements were prehire
agreements under Section 8(f) of the Act that were
therefore cancellable at will in the absence of evidence
that Local 11 had achieved majority status.
Judge Giannasi rejected these contentions. Specifical-
ly, he found that Local 11 had obtained majority status
shortly after the August 23, 1977 agreement was signed
and that Respondent therefore was barred from question-
ing the Union 's representative status during the term of
the agreement between Local 11 and CRCA and from
repudiating that contract. Accordingly , Judge Giannasi
found that the undisputed failure of Respondent to pay
its employees the contractual wage rates, to make fringe
benefit payments for all hours worked by its employees,
and to enforce the union-security provisions of the agree-
ment were unilateral changes that violated Section 8(a)
(5) and (1) of the Act.
1123
As a remedy Judge Giannasi recommended that Re-
spondent be ordered to bargain with the Union as the ex-
clusive representative of its employees and to comply
with the terms and conditions of the CRCA agreement,
including the payment of back wages and other mone-
tary obligations , retroactively to a date ti months before
the filing of the charge and prospectively until such time
as Respondent gave proper and timely notice of its with-
drawal from the CRCA agreement.
2. Respondent's withdrawal from Association
bargaining
On April 1, 1982,4 at the hearing in Case 13-CA-
21389 Respondent 's counsel orally gave notice to Local
11 that Respondent intended to withdraw from CRCA
effective immediately and to cancel and terminate the
CRCA agreement to the extent that Respondent might
be bound by it. Respondent 's counsel stated that Re-
spondent "will bargain in good faith for a new agree-
ment individually in the event the Union represents a
majority in an appropriate unit ." On the same day Re-
spondent's counsel delivered a letter to Local 1 l stating
that he had been instructed to notify the Union that Re-
spondent terminated any obligation it might have under
the current collective-bargaining agreement and that it
wished to bargain individually for a new collective-bar-
gaining agreement "if your labor organization represents
a majority of employees employed by American Thoro-
Clean, Ltd ., in an appropriate bargaining unit." At its
conclusion , Respondent 's counsel stated, "We will, under
separate cover, within the next few weeks inform you of
our suggestions for a proposed agreement and appropri-
ate times when we may be able to meet."
On April 2 the Union answered Respondent by letter
stating its position that the notice of withdrawal from the
Association unit was untimely.
On May 19 Respondent 's counsel wrote the Union to
amplify its position. In his letter, he stated Respondent's
position that the April 1 letter was a timely notice of ter-
mination of any contract to which Respondent might be
bound , that the CRCA contract was not applicable to
Respondent because Local 11 had never represented a
majority of employees , and that in any event even if it
should be determined that Local 11 represented a majori-
ty of its employees Respondent had given timely notice
of termination of the existing contract . The letter stated
further that Respondent "is prepared to negotiate direct-
ly with Roofers Local No. 11 for a new collective bar-
gaining agreement for its employees for the period com-
mencing June 1, 1982." However , it concluded : "Noth-
ing in this letter should be taken as" an admission by
American Thoro-Clean, 'Ltd., that a majority of its em-
ployees in fact desire to be represented by Roofers' Local
No. 11 for purposes of bargaining . Prior to sitting down
with Roofers Local No. 11 for contract negotiations, we
trust you will be able to furnish us' with proof of your
majority status in an appropriate bargaining unit.'"
On May 19 Respondent also posted a notice to all em-
ployees that stated that on advice of counsel , Respondent
4 All dates that follow were in 1982 unless otherwise indicated
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would no longer make any payments for dues or initi-
ation fee installment payments to the Union without
written authorization from each employee, that employ-
ees were free to make such payments directly to the
Union without reimbursement by Respondent, and that if
any employee desired Respondent to withhold money
from their paychecks for the payment of dues or initi-
ation fees the employee must, furnish Respondent with
written authorization to do so.
On May 23 Respondent received a letter from the
Congress of Independent Unions (CIU) asking Respond-
ent to recognize CIU as the bargaining agent of its em-
ployees,5 and on June 17 CIU filed a representation peti-
tion in Case 13-RC-16033 seeking an election in the unit
of "all employees employed by the employer at its facili-
ty located at Tenley Park, Illinois," with customary ex-
clusions.
On June 24 Local 11 sent Respondent a one-line letter
enclosing the newly negotiated agreement between Local
11 and CRCA describing it as "tithe contract to which
you are bound until May 31, 1983."
On June 30 the Regional Director for Region 13 noti-
fied CIU that the pending 8(a)(5) charge in Case 13-CA-
21389 precluded finding that a question concerning rep-
resentation existed and that he was therefore dismissing
the CIU petition subject to Petitioner's request to rein-
state it if the unfair labor practice charge was later dis-
missed.
On July 12 CIU again wrote Respondent stating that it
had in its possession applications for membership from a
majority of Respondent's employees and renewing its,re-
quest for recognition of CIU as the representative of Re-
spondent's employees. At the end of the letter, CIU
stated: "Due to the unfair labor practice charge filed in
the National Labor Relations Board blocking the Com-
pany from recognizing CIU on projects in the jurisdic-
tion of Roofers Union Local No. 11, we will expect to
represent your employees working out of Local No. I I's
jurisdiction."
On July 23 Respondent entered into an agreement
with CIU for a 1-year term. Two or three weeks later a
second agreement bearing the same date was executed
and substituted for the initial agreement. Both agree-
ments purported to apply to any area outside Local 11's
jurisdiction. As renegotiated, the agreement provided
hourly rates of pay of $9 for journeymen, $8 for semi-
journeymen, and $7 for laborers. It also provided that
crew leaders would be paid 50 cents per hour above the
regular rate of pay and that an insurance plan would be
provided employees.
On July 26 Respondent filed a request for review of
the Regional Director's dismissal of the CIU representa-
tion petition.
On August 19 Respondent's counsel wrote the manag-
er of the Local 11 trust funds stating its position that it
was not,bound by the ' June 1, 1982 agreement between
Local 11 and CRCA and that it was unlawful for Re-
5 After receiving this letter Respondent's manager, Brian Flanagan,
held a meeting with some of Respondent's employees It is unnecessary
to resolve a dispute as to what he said at this meeting because the result
is the same in any event.
spondent to contribute to the funds until the appeal in
the representation case was resolved. On the same day,
Respondent replied to Local 11's June 24, letter, remind-
ing Local 11 that Respondent terminated any collective-
bargaining agreement that it might have been bound and
had offered "to negotiate with you for a new agreement
in the event that you in fact represented a majority of
the employees employed by American Thoro-Clean,
Ltd." The letter continued, "You have not responded
that you do, in fact, represent a majority of the employ-
ees of American Thoro-Clean, Ltd. If you, in fact, do so,
please notify us by telegram and be prepared to present
proof of current union authorization cards and dues
check-off requests." The letter went, on to state-that as a
result of the representation case pending before the
Board Respondent had been confronted with a demand
for recognition by CIU, that Respondent had been in-
formed that CIU had authorization cards representing a
majority of its employees, and that based on discussion
with CIU, Respondent had entered into a collective-bar-
gaining agreement for all its employees working in the
jurisdiction not covered by the agreement between
CRCA and Local 11.
On October 26 Local 11 filed a charge in Case 13-
CA-22666 alleging that Respondent had violated Section
8(a)(1) and (2) of the Act by recognizing and entering
into an agreement with CIU. In settlement of that case
Respondent terminated its agreements with CIU,
On December 7 Respondent's counsel by letter offered
to bargain with Local 11 individually for a new contract,
stating, among other things:
We hereby inform you that we no longer predi-
cate such bargaining request upon your demonstrat-
ing to us that you represent a majority of the em-
ployees of American Thoro-Clean, Ltd., however,
it is our position,as a matter of law that such prior
letters asking that you demonstrate majority do not
constitute a violation of Section 8(a)(5) because at
the time we were also confronted with a claim of
majority representation from another labor organi-
zation-To make it clear, we are now unconditional-
ly offering to bargain with you for a new collective
bargaining, agreement without the need of your
demonstrating to us that you represent a majority of
American Thoro-Clean, Ltd.'s employees.
It is our position that, had you demonstrated ma-
jority to us previously, we could have sat -down to
negotiate an agreement with you which was- a full
collective bargaining agreement under Section 9(a)
of the Labor Act. We are now prepared to sit down
and negotiate a collective bargaing agreement with-
out asking whether or not you represent a majority
of the employees of American Thoro-Clean, Ltd.,
and we understand that such agreement can be ne-
gotiated and entered into even if you do not repre-
sent a majority of employees under Section 8(f) of
the Labor Act.
The letter also stated that the NLRB Regional, Office
had decided that Respondent's withdrawal from CRCA
was timely and therefore that the letter of June 24, 1982,
AMERICAN THORO-CLEAN
from the Union enclosing a copy of the Association
agreement was not applicable to Respondent.
On December 22 the Board affirmed the Regional Di-
rector's dismissal of the petition filed by CIU, concluding
that no substantial issues had been raised that warranted
reversal of the Regional Director's action.
In February 1983, Respondent and the Union entered
into a new contract applicable,to Respondent's employ-
ees-that was to remain in effect until May 31, 1983.
Between April and August 1982, there were no other
communications from Respondent to Local 11 concern-
ing its intention to enter into agreement with the Union.
3. Changes in terms and conditions of employment
after expiration of the CRCA agreement on May
31, 1982
From June 1, 1982, until Respondent and Local 11
reached agreement in February 1983, Respondent made
no payments to the various union trust funds. During
that period Respondent paid the wage rates provided in
the CIU agreement to all employees for doing roofing
work, whether they were working inside or outside the
jurisdiction of Local 11.6
Before April 1, 1982, Respondent had provided some
hospitalization insurance for some employees. After the
CIU contracts were executed, restrictions on qualifica-
tions for insurance were eased, and insurance benefits
became more available to employees.
Following execution of the CIU contracts, Respond-
ents deducted money from the pay of employees for CIU
dues and initiation fees, which it remitted to CIU. It did
not require its employees, to become or remain members
of Local 11.
B. Concluding Findings
For purposes of this decision , I^ rely on the findings
and conclusions of Judge Giannasi in Case 13-CA-21389
with respect to the unfair labor practice committed by
Respondent before the issues in this case arose. To be
sure, if his decision should be reversed in any substantial
part, the underpinnings of this case may well disappear.
However, whether affirmed or reversed by the Board or
a court of appeals, the decision in that case will be res
judicata as to the issues decided in it, and they are not
subject to relitigation in this case. Thus, that decision es-
tablishes that Local 11 was the majority representative of
Respondent's employees prior to April 1 , 1982, that Re-
spondent unilaterally changed the terms provided by the
collective-bargaining agreements in effect - between
CRCA and the Union from February 4, 1981 , through
April 1, 1982, by failing to make ` fringe benefit contribu-
tions for all its employees , by failing to pay contractual
wage rates , and by supplying nonunion employees with
the union cards of other employees . Further premises are
that these unilateral changes violated Section 8(a)(5) of
the Act, and the appropriate remedy for these violations
included an order requiring Respondent to bargain ' with
6 Respondent had a single homogeneous group of employees who
worked at all locations. It paid these employees at lower rates for time
spent at yard work and driving to and from fobs The rates paid by Re-
spondent were not the rates provided in the expired CRCA agreement
1125
Local 11 and to- comply retroactively with the terms of
the-CRCA agreement.
It is undisputed that from April 1, 1982, until February
1983, Respondent did not bargain with Local 11. The
initial question to be decided is whether Respondent had
any obligation to do so.
On April 1, 1982, at the hearing in the earlier case, Re-
spondent took two positions as to its future relationship
with Local 11. First, it announced its withdrawal from
multiemployer bargaining through CRCA and, second, it
announced that it would bargain with Local l l for a
new agreement in the event Local 11 represented a ma^
jority in an appropriate unit.
Although Local 11 took the position in correspond-
ence with Respondent thereafter and at the hearing in
this case that Respondent's withdrawal from CRCA was
untimely, the Regional Director agreed with Respond-
ent's position that withdrawal was timely, and Local I I's
effort to raise the issue at'the hearing as an alternative
theory to support the complaint was rejected as an at-
tempt by the Charging Party to amend the complaint.
Thus, the only question is whether Respondent had any
obligation to bargain with Local 11 for an individual
agreement.
The existence of the CRCA contract, which Judge
Giannasi found had become a 9(a) agreement, established
a presumption during the term of that agreement that the
Union was the majority representative of-Respondent's
employees. Respondent's timely withdrawal from CRCA
did not destroy the presumption. Rather, following its
withdrawal the presumption continued that the Union
represented a majority in a unit of Respondent's employ-
ees with the same composition ' as the CRCA contract
unit. Chicago Magnesium Castings, 256 NLRB 668, 674
(1981).
On expiration of the CRCA agreement the presump-
tion of the Union's continuing majority became rebutta-
ble, and Respondent lawfully, could withdraw recogni-
tion anticipatorily for purpose off negotiations for a new
agreement "if and only if the employer can demonstrate
that, on the date of withdrawal and in a context free of
unfair labor practices, the union in fact had lost its ma-
jority, or, respondent's withdrawal was predicated on a.
reasonable doubt based on objective considerations of the
union's majority status." Abbey Medical/Abbey Rents, 264
NLRB 969 (1982).
Respondent asserts here that it had a good-faith doubt
of the Union's continuing majority which it should have
been allowed to establish as a defense to the General
Counsel's contention that its bargaining obligation con-
tinued. The General Counsel and the Charging Party
contend that Respondent's prior unfair labor practices
provided the context that deprived Respondent of that
defense.
Whether committed out of animus, ignorance, or
simple, economic self-interest, the unfair labor practices
found by Judge Giannasi were of the kind that are inher-
ently destructive of a collective-bargaining relationship.
Respondent entered into a collective-bargaining agree-
ment with the Union and then failed to live up to its
terms by denying employees the benefits it had agreed
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to. It not only failed to enforce the union-security provi-
sion, but used subterfuge to conceal its violation from the
Union. The unilateral denial of contract benefits to em-
ployees "graphically portrayed to the employees that Re-
spondent was in a position to confer or withdraw eco-
nomic benefits without regard to the presence of the
Union." Guerdon Industries, 218 NLRB 658, 661-662
(1975). Respondent's unilateral changes in terms and con-
ditions of employment that had been established by
agreement denied the Union its rightful status as bargain-
ing representative of the employees and "necessarily
tended to undermine the Union's authority among the
employees, whose interest it was obligated to represent
in such matters, with erosion of majority status the prob-
able result." Id. at 662.
Respondent contends that in order for unfair labor
practices to taint a doubt of a union's majority status,
there must be a showing that the unfair labor practices
caused the disaffection from the union or were designed
to gain time to destroy the union's majority, citing Cel-
anese Corp. of America, 95 NLRB 664, 673 (1951), and
Guerdon, above. However, as Guerdon itself makes clear,
the required proof is that the unfair labor practices were
of "a character as to either affect the Union's status,
cause employee disaffection, or improperly affect the
bargaining relationship itself." Id. at 661. The unfair
labor practices in this case meet the Guerdon test and
were if anything more egregious than those in Abbey
Medical, above. I find that because of the unfair labor
practices found in the earlier case, Respondent could not
lawfully rely on its alleged' good-faith doubt of Local
I1's majority to rebut the presumption of its continuing
majority on expiration of the CRCA agreement. There-
fore, I find that Local 11 continued as majority repre-
sentative of Respondent's employees after June 1, 1982,
and that Respondent was obligated to bargain with the
Union as the representative of its employees.
The question remains' whether there was a refusal to
bargain by Respondent. Before April' 1, Respondent was
a member of CRCA with which Local 11 was about to
begin bargaining for a new agreement. Before Local 11
had any opportunity to request bargaining on an individ-
ual basis,' Respondent simultaneously announced its with-
drawal from the Association and told Local I1 that it
would bargain for a new agreement "in the event the
Union- represents, a majority in an appropriate unit." Re-
spondent took the position that the expiring agreement
was an 8(f) agreement and that Local 11 had never rep-
resented a majority of its employees. Respondent reiter-
ated its position in later letters, specifying in May 19 and
August 19 letters that before negotiating, it expected to
be furnished with proof of Local 11's majority. For its
part, Local 11 responded on April 2, 1982, that it regard-
ed Respondent's withdrawal from CRCA as untimely,
and on June 24 it sent Respondent a copy of the new
CRCA agreement asserting that Respondent was bound
by it until May 31, 1983.
Although Local 11 did not request bargaining on an
individual basis after April 1, Respondent's position made
such a request futile. Respondent's refusal to recognize
and bargain with Local 11 preceded any indication of
Local I I's position and were independent of it. Thus, the
initial refusal occurred before Local I 1 had -an opportu-
nity to react to Respondent's withdrawal. After Local 11
took the position that the withdrawal from Association
bargaining was untimely, Respondent's only condition to
bargaining remained that Local 11 prove its majority,
not that the Union must make a formal request to bar-
gain separately for Respondent's employees. Indeed, on
December 7, 1982, without any request from Local 11 to
bargain on an individual basis, Respondent uncondition-
ally offered to bargain with the Union on an individual
basis, and bargaining began not long thereafter.
I conclude that Respondent's obligation to bargain
with Local 11 continued at all times material and that
Respondent was not relieved of its obligation because of
the Union's failure to request bargaining on an individual
basis because such a request would have been futile
before Respondent's December 7 letter. Richardson
Chemical Co., 222 NLRB 5, 6 (1976); Old Town Shoe Co.,
91 NLRB 240 (1950).
The remaining issue in this case is whether Respondent
made unilateral changes in terms and conditions of em-
ployment in violation of its bargaining obligation. The
Order in Case 13-CA-21389 recommended by Judge
Giannasi requires Respondent to abide by its agreement
with CRCA effective until May 31, 1982, and to comply
with its terms and conditions prospectively until Re-
spondent gives timely and proper notice of withdrawal.
Because such notice was given, that Order governs Re-
spondent's obligations through May 31, 1982. Although
the CRCA agreement terminated on May 31, 1982, Re-
spondent had a continuing obligation to bargain with
Local 11 and as part of that obligation Respondent was
required to maintain in effect the terms and conditions of
the expired contract until Local 11 was given an oppor-
tunity to bargain. Hen House Market No. 3, 175 NLRB
596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970); Peerless
Roofing Co., 247 NLRB 500 (1980), enfd. 641 F.2d 734
(9th Cir. 1981).
From June 1, 1982, on, Respondent did not maintain in
effect the wage rates required by the expired Association
contract or make contributions to Local 11, trust funds.
In addition, Respondent made additional unilateral
changes in insurance benefits as a result of its agreement
with CIU. By failing to maintain these terms and condi-
tions of employment, in effect Respondent unilaterally al-
tered them in violation of its bargaining obligation.?
There remains for consideration Respondent's discon-
tinuation of its practice of paying Local 11 dues and ini-
tiation fees for some of its employees. The General
Counsel contends that these payments were a unilateral
benefit provided by Respondent above and beyond con-
tract requirements that, once granted, Respondent was
obligated to continue until it had bargained about its ter-
mination. In the General Counsel's view, these payments
7 The agreement creating the Local 11 pension fund specifically pro-
vides that the obligation to contribute to the fund-shall continue while
collective-bargaining agreements are being negotiated The welfare trust
fund agreement is silent as to the obligation to make payments during ne-
gotiation The absence of such a provision does not relieve Respondent
of the obligation to continue making the payments pending negotiation of
a new contract Hen House Market No 3, above, Peerless Roofing Co.,
above.
AMERICAN THORO-CLEAN
simply constituted an additional form of remuneration to
employees.
The difficulty with this position, of course, is that Re-
spondent did not provide these payments to the employ-
ees as additional remuneration , but provided them direct-
ly to Local 11 for Respondent's own purposes. Section
302 of the Act provides, with very limited exceptions,
that it is unlawful for an employer to pay money to any
labor organization, representing his employees. The ex-
ception for employee dues extends only to dues deducted
from the wages of employees who have given the em-
ployer written authorization to make such deductions.
Although one may argue that direct payment of dues is
tantamount to additional remuneration where a contract
exists containing both union-security and checkoff provi-
sions, the fact is that Congress was particular in' its re-
quirements concerning the enforcement of such provi-
sions. Paying union dues may be made a condition of
employment, but it is left to the employese to decide
whether to meet that condition and how to do it. An ar-
gument similar to that made by the General Counsel
here has been made by employers defending against
charges of unlawful assistance, with the General Counsel
successfully arguing the opposite position. Sweater Bee by
Banff, 197, NLRB 805 (1972); Western Auto Assn. Store,
143 NLRB 703 (1963). The cited cases make` it likely
than in an appropriate proceeding, the Board ' would
enjoin the very practice that the General Counsel now
asks the Board to find was unlawfully stopped. Although
employees may have had an unexpected windfall as a
result of Respondent's practice, I yfind that it would be
contrary to the policies of the Act to find its termination'
unlawful. Accordingly, I find that Respondent did not
violate the Act when it stopped paying union dues on
behalf of some of its employees.8
III. THE REMEDY
Respondent contends that even if it violated its bar-
gaining obligation, no remedial order is needed because
the parties negotiated an agreement in February 1983
and, Respondent asserts, entered into a 3-year renewal
agreement following the close of the hearing in this case.
Respondent also contends that it should not be required
to make employees whole for losses they suffered as a
result of unilateral changes because absent Local I I's po-
sition that Respondent was bound by the CRCA agree-
ment, the parties would have reached a separate agree-
ment earlier. However, I have already found that Re-
spondent's refusal to recognize Local 11 as' majority rep-
resentative of its employees without a new demonstration
of its majority made futile any further demand for bar-
gaining by Local 11, and when Respondent' finally
changed - its position with respect to recognizing Local
11, bargaining on an individual basis soon followed. I
$ After June 1, 1982, there was no collective-bargaining agreement in
effect covering Respondent's employees Respondent had no obligation
after that date to enforce the requirements of the expired contract as the
union-security or checkoff provisions Bethlehem Steel Co„ 133 NLRB
1347 (1961), 136 NLRB 1500 (1962), enf. denied 320 F.2d 615 (3d Cir
1963), cert. denied 375 U S. 984 (1964)
1127
find that Respondent must bear responsibility for the in-
terference with the bargaining process because of its uni-
lateral changes found in the prior case, its refusal to rec-
ognize Local 11 after its withdrawal from the Associa-
tion, and its failure after the expiration of the CRCA
agreement to maintain ' its terms and conditions of em-
ployment pending negotiations.
Accordingly, I shall recommend that Respondent be
ordered to cease and desist from the unfair labor prac-
tices found in this case and to take certain affirmative
action designed to effectuate the policies of the Act.
Respondent shall be required to make its employees
whole for any losses they may have suffered between
June 1, 1982, and the effective date of the February 1983
agreement between Respondent and Local 11 as a result
of Respondent's failure to pay them the wages required
by the expired CRCA agreement. Backpay is to be com-
puted in accord with the Board's decision in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as set forth in Florida Steel
Corp., 231 NLRB 651 (1977} In addition, Respondent
shall be required to make the appropriate trust funds
whole for losses suffered as a result of Respo'ndent's fail-
ure to make payments to them on behalf of its employees
during the same period and for administrative costs,
other expenses, and loss of interest incurred by them as a
result of their - acceptance of retroactive payments, as
provided in Clerks & Checkers Local 1593 (Caldwell Ship-
ping Co.), 243 NLRB 8 (1979), enfd. 644 F.2d 408 (5th
Cir. 1981).
On the basis of the, above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. American Thoro-Clean, Ltd. and Unico, Ltd. con-
stitute a single employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 11 is a labor organization `within the meaning
of Section 2(5) of the Act.
3. All employees performing roofing work and work
incidental thereto for Respondent, excluding all office
clerical employees, guards, and' supervisors as defined in
the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material, Local I I has been and contin-
ues to be the exclusive representative of the employees in
the unit described in paragraph 3 for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing to recognize Local 11 as the exclusive
bargaining representative of its employees on and after
April 1, 1982, and by unilaterally failing to maintain in
effect wages and insurance as required by an expired
agreement and failing to make payments to fringe benefit
funds without first bargaining with Local I1 following
its expiration, the Respondent, has violated Section
8(a)(5) and (1) of the Act.
[Recommended Order omitted from publication]