C & C Roofing Supply

National Labor Relations Board - Board Decisions

Mar 28, 2007

349 N.L.R.B. 667 (N.L.R.B. 2007)

C & C ROOFING SUPPLY, INC.
349 NLRB No. 64
667
C & C Roofing Supply, Inc. and United Union of
Roofers, Waterproofers and Allied Workers,
Local 135, AFL–CIO. Case 28–CA–20988
March 29, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW
AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceeding.
Pursuant to a charge and an amended charge filed on Sep-
tember 12 and October 10, 2006,1 respectively, the Gen-
eral Counsel issued the complaint on October 20, 2006,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 28–RC–
6417. (Official notice is taken of the “record” in the repre-
sentation proceeding as defined in the Board’s Rules and
Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an answer
admitting in part and denying in part the allegations in the
complaint and asserting affirmative defenses.
On November 17, 2006, the General Counsel filed a
Motion for Summary Judgment. On November 21, 2006,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response,
and the General Counsel filed a reply to the Respondent’s
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer and response, the Respondent admits its
refusal to bargain, but contests the validity of the certifica-
tion on the basis of conduct alleged to have affected the
results of the election,2 its contention that the Union’s
showing of interest in support of its petition for an election

1 The Respondent’s answer denies the complaint allegations con-
cerning the filing and service of the charge and amended charge. The
Respondent’s answer also denies the complaint allegation that the Un-
ion was certified as the exclusive collective-bargaining representative
of the unit on August 24, 2006. Copies of the charge, the amended
charge, the certificates of service of the charge and the amended
charge, and the certification of representative are included in the docu-
ments supporting the General Counsel’s motion, showing the dates as
alleged, and the Respondent does not contest the authenticity of these
documents.
2 Under well-established precedent, the Respondent waived its ar-
guments pertaining to conduct alleged to have affected the results of the
election by failing to file timely objections. Bishop Mugavero Center
for Geriatric Care, 323 NLRB 642 (1997).
was obtained through improper means,3 and the Regional
Director’s failure to hold the election in abeyance pursuant
to the Board’s “blocking charge” policy.4 In addition, the
Respondent contends that the Board’s decisions in Oak-
wood Healthcare, 348 NLRB 686 (2006), Croft Metals,
Inc., 348 NLRB 717 (2006), and Golden Crest Healthcare
Center, 348 NLRB 727 (2006), which issued after the
decision in the representation case, create special circum-
stances warranting reexamination of the Board’s decision
in the representation case to overrule challenges to the
ballots of 10 foremen whom the Respondent contends are
statutory supervisors. In Oakwood, Croft Metals, and
Golden Crest, the Board refined the analysis to be applied
in assessing supervisory status in light of the Supreme
Court’s decision in NLRB v. Kentucky River Community
Care, 532 U.S. 706 (2001), and adopted definitions for
“assign,” “responsibly to direct,” and “independent judg-
ment,” as those terms are used in Section 2(11) of the Act.
The Respondent contends that, under the standard articu-
lated in Oakwood, Croft Metal, and Golden Crest, the
foremen at issue are statutory supervisors based on their
authority with respect to the assignment and direction of
employees, and it requests that the representation case be
remanded to the Region and the hearing reopened to re-
ceive additional evidence on these issues.
All representation issues raised by the Respondent were
or could have been litigated in the prior representation
proceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence. With respect to the Respondent’s contention
that the Board’s decisions in Oakwood, Croft Metals, and
Golden Crest create special circumstances warranting re-
examination of the decision in the representation case, we
note that the Respondent failed to file timely exceptions to
the hearing officer’s February 17, 2006 report finding that
the foremen are not statutory supervisors and recommend-
ing that the challenges to their ballots be overruled.5 Con-

3 Inasmuch as the election has already been held, and as the matter is
newly raised, we reject the Respondent’s contention in regard to the
showing of interest. Crystal Art Gallery, 323 NLRB 258, 259 (1997);
Gaylord Bag Co., 313 NLRB 306, 307 (1993) (after the election, the
adequacy of the showing of interest is irrelevant).
4 Documents attached to the General Counsel’s motion show that on
December 9, 2005, 2 weeks before the election, the Respondent filed
unfair labor practice charges against the Union alleging that it violated
the Act by coercing and threatening employees, and by causing them to
engage in a strike on August 24, 2005. In its response, the Respondent
argues that given the pendency of these charges, a fair election could
not be held. However, we agree with the General Counsel that this
issue could have been raised in the underlying representation proceed-
ing. Therefore, the Respondent is precluded from litigating it now.
5 In the absence of timely exceptions, the Board adopted the hearing
officer’s findings and recommendations. Thereafter, the Respondent
filed a motion for reconsideration and to extend the time for filing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
sequently, the Respondent is barred from raising its argu-
ments regarding the supervisory status of the foremen in
the instant proceeding. HeartShare Human Services of
New York, 317 NLRB 611 (1995), enfd. 108 F.3d 467 (2d
Cir. 1997); Flatbush Manor Care Center, 314 NLRB 702
(1994).
Moreover, even if all of the putative supervisors were
excluded from the unit, it would not change the results of
the election. Thus, the initial tally of ballots that issued
after the election reflects that the Union received 19 votes,
15 votes were cast against the Union, and there were 13
determinative challenged ballots.6 Accordingly, the Union
would have won the election by a margin of 1 vote (19–
18) even if the 10 foremen at issue were found to be statu-
tory supervisors, the challenges to their ballots sustained,
and the remaining 3 challenged ballots counted for the
Respondent.7
We therefore find that the Respondent has not raised
any representation issue that is properly litigable in this
unfair labor practice proceeding.8 See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.9

exceptions, but the Board denied the motion. Thus, that matter is res
judicata.
6 The final tally of ballots was 27 for the Union, 19 against the Un-
ion. (The challenge to one of the 13 determinative ballots was sus-
tained, and it was not opened or counted.)
7 In view of this result, we need not pass on the issue of whether, if
timely exceptions had been filed and found without merit, the Respon-
dent could now raise the applicability, if any, of the Board’s decision in
Oakwood Healthcare, supra.
8 The Respondent asserts that the charge allegations were not served
by the Union within the 6-month limitation period specified in Sec.
10(b) of the Act, as required under Sec. 102.14(a) of the Board’s Rules
and Regulations. As indicated above, affidavits of service by Board
agents certifying that they served the Respondent with copies of the
charge and amended charge by regular mail are included in the docu-
ments supporting the General Counsel’s motion, and the Respondent
does not dispute the authenticity of these documents. Although Sec.
102.14(a) of the Board’s Rules and Regulations provides that the charg-
ing party shall be responsible for the timely and proper service of a
copy of the charge, Sec. 102.14(b) provides that the Regional Director
will also cause a copy of the charge to be served by regular mail. In-
asmuch as copies of the charge and amended charge were served on the
Respondent by the Regional Director for Region 28 within the 6-month
limitation period specified in Sec. 10(b) of the Act, the Respondent’s
contention that the charge allegations should be barred as untimely is
without merit. T.L.B. Plastics Corp., 266 NLRB 331 fn. 1 (1983).
The Respondent additionally contends that the Union has lost major-
ity support. However, it is well established that, absent unusual cir-
cumstances, a union’s majority status is irrebuttably presumed to con-
tinue during the year following the union’s certification. The Respon-
dent does not cite any unusual circumstances. Ray Brooks v. NLRB,
348 U.S. 98 (1954); Action Automotive, 284 NLRB 251 (1987), enfd.
853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041 (1989).
9 In view of our decision on the Motion for Summary Judgment, we
find it unnecessary to rule on the General Counsel’s motion to strike
portions of the Respondent’s answer to the complaint, and we deny the
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Arizona corpo-
ration with an office and place of business in Phoenix,
Arizona, has been engaged in the building and construc-
tion industry as a roofing contractor.
During the 12-month period ending September 12,
2006, the Respondent, in conducting its business opera-
tions described above, purchased and received at its Phoe-
nix facility goods valued in excess of $50,000 directly
from points outside the State of Arizona.
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that United Union of Roofers, Waterproof-
ers and Allied Workers, Local 135, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 23, 2005, the Un-
ion was certified on August 24, 2006, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
Roofers and damp and waterproof workers, including
apprentices and trainees, tile loading forklift opera-
tors, small truck operators, cleanup workers, loaders,
yardmen, customer service roofers and allied workers;
excluding office staff, estimators, superintendents,
quality assurance inspectors, and supervisors as de-
fined in the Act.10
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On or about July 12 and August 28, 2006, the Union, by
letter,11 requested that the Respondent recognize and bar-

Respondent’s request that the complaint be dismissed and the Respon-
dent be awarded attorney’s fees and such other relief as may be just and
proper.
10 The unit description set forth in the complaint does not precisely
mirror the certified unit.
11 In its answer, the Respondent denies the complaint allegation that
by letters dated July 12 and August 28, 2006, the Union requested that
the Respondent recognize and bargain with it, but admits that it has
failed and refused to bargain with the Union. However, the General
Counsel has attached as exhibits to his Motion for Summary Judgment
copies of the letters described above. The Respondent does not contest
the authenticity of these documents. Accordingly, we find that the
Respondent’s denial raises no genuine issue of material fact warranting
a hearing.
C & C ROOFING SUPPLY, INC. 669
gain collectively with it as the exclusive collective-
bargaining representative of the unit.
By letter dated September 6, 2006, the Respondent re-
fused to bargain with the Union.12 The Respondent’s
September 6 letter stated that “C&C Roofing and Supply,
Inc. respectfully declines your request to bargain.”
We find that this refusal constitutes an unlawful re-
fusal to bargain in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since September 6, 2006, to
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); and Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, C & C Roofing Supply, Inc., Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Union of Roofers,
Waterproofers and Allied Workers, Local 135, AFL–CIO
as the exclusive bargaining representative of the employ-
ees in the bargaining unit.

12 In its answer, the Respondent denies complaint allegations that
certain individuals have at all material times been agents of the Re-
spondent within the meaning of Sec. 2(13) of the Act, and that another
individual has at all material times been a supervisor and agent of the
Respondent within the meaning of Sec. 2(11) and (13) of the Act. The
Respondent’s denials do not preclude summary judgment or raise mate-
rial issues of fact warranting a hearing because the Respondent admits,
in par. 6(b) of its answer, that it has refused to bargain with the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
Roofers and damp and waterproof workers, including
apprentices and trainees, tile loading forklift opera-
tors, small truck operators, cleanup workers, loaders,
yardmen, customer service roofers and allied workers;
excluding office staff, estimators, superintendents,
quality assurance inspectors, and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Phoenix, Arizona, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 6, 2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to mail and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with United
Union of Roofers, Waterproofers and Allied Workers,
Local 135, AFL–CIO as the exclusive bargaining repre-
sentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
Roofers and damp and waterproof workers, including
apprentices and trainees, tile loading forklift opera-
tors, small truck operators, cleanup workers, loaders,
yardmen, customer service roofers and allied workers;
excluding office staff, estimators, superintendents,
quality assurance inspectors, and supervisors as de-
fined in the Act.
C & C ROOFING SUPPLY, INC.