Capital Roof & Supply Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1975

217 N.L.R.B. 1004 (N.L.R.B. 1975)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capitol Roof & Supply Company, Inc. and United
Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association , Local Union No.
137. Cases 31-CA-3878 and 31-CA-4003
May 16, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On May 8, 1974, Administrative Law Judge Irving
Rogosin issued the attached Decision in this proceed-
ing. Thereafter, Respondent and General Counsel filed
exceptions with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Capitol Roof & Supply Company, Inc.,
Santa Barbara, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
In addition to the commerce facts set forth in the Administrative Law
Judge's Decision, there appears in Respondent's answer an admission to the
complaint's allegations that Michael Towbes Construction and Develop-
ment, Inc, for whom Respondent performs services, "meets one of the
Board's jurisdictional standards other than the indirect inflow or indirect
outflow standard "
The complaint did not allege that, and the General Counsel was not
willing at the hearing to raise the issue of whether, Bill Adams was a
successor to Respondent who is obligated to remedy its unfair labor prac-
tices or is otherwise bound by its contract Nor does the record show that
the nature of Adams' relationship to Respondent and any legal liability
arising therefrom were fully litigated. Under these circumstances, we find
that these issues are not properly before us in this proceeding Accordingly,
we do not pass on the Administrative Law Judge's finding that Bill Adams
is a successor to Respondent who is obligated to remedy its unfair labor
practices and is bound by its contract.
DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Admunstrative Law Judge: These con-
solidated cases are companion cases to Home Roofing Co.,
Inc., 31-CA-4014, in which decision issued April 30, 1974
[211 NLRB 910]. By stipulation of the parties, the official
report of proceedings, including all exhibits, in that case was
incorporated by reference in these proceedings.
The consolidated complaint, as amended, issued December
21, 1973, alleges that Respondent' has engaged in unfair la-
bor practices within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended.2
Specifically, the consolidated complaint, as amended,
hereinafter referred to as the complaint, alleges that (1) from
about April 9, 1973, to date, Respondent has refused to bar-
gain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit by (a) refusing,
on about April 9, 1973, to pay retroactive wage increases due
said employees under the terms of a collective-bargaming
agreement between Respondent and the Umon, effective
from August 27, 1972, to August 27; 1974; (b) on about
August 6, 1973, rescinding or attempting to rescind said col-
lective-bargaining agreement; and (c) about August 6, 1973,
and thereafter, unilaterally, without bargaining with the
Union, changing the terms and conditions of employment of
all unit employees, by refusing to abide by the provisions of
said agreement, concerning vacation pay, dues checkoffs,
wage increases, and contributions to health and welfare and
pension trust funds, in violation of Section 8(a)(5), and (2)(a)
since about April 9, 1973, Respondent has discriminatorily
changed the terms and conditions of employment of all em-
ployees in the appropriate unit, by denying them retroactive
pay, as required by said agreement; and (b) since about Au-
gust 6, 1973, has discriminatorily changed the terms and
conditions of employment of all employees in the appropriate
unit, by denying them vacation pay and wage increases and
refusing to make contributions to the health and welfare and
pension trust funds, required by said agreement, thereby dis-
criminating in regard to the hire or tenure or terms and
conditions of employment, of its employees, to discourage
membership in a labor organization, in violation of Section
8(a)(3); and (3) by all the foregoing conduct, Respondent has
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7, thereby engaging
in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
In its answer to the original complaint (Case
31-CA-4003), Respondent admits generally the procedural
and jurisdictional allegations; denies, in substance, the re-
maining allegations, affirmatively alleging that the issues of
wage increases and contributions for fringe benefits are sub-
ject to the grievance and arbitration procedures under the
collective-bargaining agreement; alleges that Respondent has
requested arbitration but that the Union has refused to agree
to that procedure; and further alleges that, although Re-
spondent, on August 6, 1973, gave formal notice to the
I The name of Respondent has been corrected to conform to that given
in Respondent's brief
2 Designations herein are as follows: The General Counsel, unless other-
wise stated or required by the context, his representative at the hearing;
Capitol Roof & Supply Company, Inc., Respondent, the Company, or the
Employer, United Slate, Tile and Composition Roofers, Damp and Water-
proof Workers' Association, Local Union No 137, the Union or the Charg-
ing Party, the National Labor Relations Act, as amended (61 Stat 136, 73
Stat. 519, 29 USC § 151, et seq.), the Act, the National Labor Relations
Board, the Board. The charge in Case 31-CA-3878 was filed and served on
July 23, 1973, the charge in Case 31-CA-4003, on September 26, 1973
217 NLRB No. 173
CAPITOL ROOF & SUPPLY COMPANY, INC .
Union , of rescission of the collective-bargaining agreement, it
subsequently withdrew and abandoned said notice . Respond-
ent raised further defenses, based on the Union's alleged vio-
lation of ` other provisions of the agreement , also raised in
Home Roofing Co., Inc.
Pursuant to due notice , a formal hearing was held before
me on January 10, 1974 , at Santa Barbara, California. The
General Counsel and Respondent were represented by coun-
sel. All parties were'afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce oral and
documentary evidence relevant and material to the issues, to
argue orally, and to file briefs and proposed findings of fact
and conclusions of law. Both counsel argued informally on
the record.' The parties were granted until January 30,
1974, to file briefs and proposed findings of fact and conclu-
sions of law. Briefs were timely filed by the General Counsel
and Respondent, but no proposed findings of fact or conclu-
sions of law have been filed by any of the parties.
Upon the entire record in the case,° and based upon the
appearance and demeanor of the witnesses and the briefs of
the parties , including the briefs in the companion case, incor-
porated by reference in these proceedings, which have been
carefully considered, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent 's answer admits, and it
is hereby found, that Respondent, a California corporation,
with its principal place of business in Santa Barbara, Cali-
forriia, is engaged in business as a roofing contractor, in the
conduct of which it derives gross revenues in excess of
$500,000.
During the 12-month period preceding issuance of the
complaint , Respondent has performed services valued in ex-
cess of $50,000 for Michael Towbes Construction and Devel-
opment, Inc., a general contractor in the construction mdus-
try, which received gross revenues annually of approximately
$2, 500,000.
Upon the basis of the foregoing , the complaint alleges,
Respondent 's answer admits, and it is hereby found , that, at
all times material herein, Respondent has been an employer
within the meaning of Section 2(2), engaged in commerce and
in operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association , Local Union No. 137, the
Union herein , is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3 By agreement of counsel , oral argument in Home Roofing was deferred
until the close of the evidence in these cases , and counsel argued all the cases
at that time. '
4 Including the official report of the proceedings , consisting of the tran-
script and exhibits , in Home Roofing Co., Inc., Case 31-CA 3014
III THE UNFAIR LABOR PRACTICES
A. The Issues
1005
1. Whether Respondent has refused to bargain with the
Union , 'as exclusive representative of the unit employees by:
(a) Refusing to pay said employees retroactive wage in-
creases due them under the collective -bargaining agreement;
(b) Rescinding or attempting to rescind said collective-
bargaining agreement; and
(c) Unilaterally , and without bargaining with the Union,
changing the terms and conditions of employment of said
employees, by refusing to abide by the provisions of the agree-
ment concerning wage increases and specified fringe benefits.
2. Whether, by the foregoing conduct, Respondent has
discriminated in regard to the hire or tenure , or terms and
conditions of employment of, said employees, within the
meaning of Section 8 (a)(3).
3. Whether this is a proper case for the application of the
Board's policy of deferral to arbitration.
B. Preface
The findings and conclusions in the decision in Home Roof-
ing Co., Inc., Case 31-CA-4014, issued April 30, 1974, so far
as applicable to the facts in these consolidated cases, are
hereby adopted, incorporated by reference, and made part of
the record here. The basic facts, common to all these cases,
have been detailed there, and will not be repeated, except
where required to maintain continuity . It should be noted at
the outset, however, that the cases here differ from Home
Roofing in two significant respects. First, in contrast to re-
spondent in Home Roofing, Respondent here does not deny
but, on the contrary, expressly affirms that it executed, and
considered itself bound by, the Master Labor Agreement,
effective from August 27, 1972, to August 27, 1974. Second,
Respondent here rescinded the collective-bargaining agree-
ment on August 6, 1973, though it contends it later revoked
such rescission.
C. Facts Concerning Respondent
1. Unilateral withdrawal of wage and fringe benefit
increases
As one of a group of roofing contractors in Santa Barbara
and San Luis Obispo counties, Respondent had been a party
to the 1968-1972 Master Labor Agreement with the Union,
which expired, in accordance with its terms, on August 26,
1972. On about September 6 or 7, 1972, it executed an interim
agreement with the Union for a term of 30 days. About
November 5, 1972, Respondent executed the Master Labor
Agreement, involved in these proceedings, effective from Au-
gust 27, 1972, to August 27, 1974, automatically renewable
annually thereafter, in the absence of specified notice. As
found in the companion case, this agreement provided for
retroactive wage increases and fringe benefit contributions to
the trust fund. The agreement was submitted to the C.I.S.C.
(Construction Industry Stabilization Committee) and, on
April 9, 1973, that agency issued its approval of those eco-
nomic adjustments. On July 23, 1973, following a supplemen-
tal submission by the Union, the C.I.S.C issued approval of
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "[e]ntire agreement, including corrected foreman
premium."
On approval by the C.I.S.C., Respondent immediately
commenced paying the retroactive wage and fringe benefit
increases, but subsequently discontinued and withheld these
increases.'
Late in June and early in July, the Union engaged in a
strike against the contractors, including Respondent. The
strike was subsequently terminated as to all contractors who
executed an escrow agreement under which the wage in-
creases and fringe benefit contributions which had been with-
held were deposited in an escrow fund pending determination
of the issue in arbitration. Respondent, as well as Home
Roofing, however, refused to enter into an escrow agreement,
and the strike against them continued and was still in effect
at the time of the hearing.
Sometime in July, Respondent began hiring strike replace-
ments. According to Bill L. Adams, Respondent's president
and general manager, "[d]epending on their knowledge,
[and] ability, some were paid above union scale and some
were paid below." Admittedly, Adams did not discuss the
subject of wage scales for the replacements with Guerrero or
any other union representative.
Adams also conceded that he told these employees that he
"did not know if I was union or nonunion," but "considered
myself union although the union had advised that I was not
union." He, therefore, told these men that, since he was in
doubt about his status, he would include their vacation pay
and dues-checkoff sums in their weekly paychecks. He fur-
ther informed them that he would deposit the health and
welfare contributions in a separate account in their names,
until the matter was decided by arbitration, and that if the
dispute remained unresolved, he would provide them with
separate health and welfare coverage.
It was stipulated that, although Respondent made the re-
quired contributions to the Health and Welfare, Pension and
Vacation Trust Funds until August 1973, it made no such
contributions for the months of August through November.
According to Adams, he did, however, send a report,
together with a remittance, to the trust fund, on behalf of
union employees, only for the month of December, after the
Union notified him in mid-December of the existence of
checkoff 'authorizations for those employees.
On October 1, Respondent established a health and welfare
plan for the unit employees with the Great West Insurance
Company, admittedly, without prior notice to or negotiation
with the Union.
5 The record does not establish the exact date Respondent ceased making
these payments The date, April 9, 1973, alleged in the complaint, is presum-
ably based on the date of C I S C. approval of the retroactive increase It is
evident, however, that Respondent continued these payments, at least, until
the 1-day strike called by the Union in May, to protest the nonpayment of
retroactive wage increases and fringe benefit contributions. On May 23,
attorney Charles A. Kent, on behalf of the Association, subsequently formed
on July 6 , and its members , including Respondent , protested the disparate
treatment of his clients, on the ground that other contractors had been
permitted to commence payment of the increases as of April 26, 1973,
rather than August 27, 1972, the retroactive date
2. Attempted rescission
On August 6, attorney Kent, on behalf of the Association,
and its members, including Respondent, served a demand on
the Union to renegotiate the contract, stating that if the re-
quest were denied, the members would deem the second year
of the agreement canceled and rescinded. The same day,
Respondent notified the Union, in writing, with a copy to the
trust administrator, of its rescission of the agreement, includ-
ing any further obligation to pay health, welfare, dues check-
off, pension or vacation pay. The notice stated that, "we will
pay our employees all of their wages directly. If they wish to
make their own contributions to your local in order to keep
their standing with these plans, that is up to them."
On October 25, Respondent, allegedly on advice of a Board
agent, withdrew the notice of rescission, after being informed
that this action constituted a refusal to bargain. Respondent
reserved the right, however, to have a court determine the
issue of its obligations under the contract, and of the Union's
alleged breach of the contract.
With regard to the withholding of the retroactive wage
increase, Adams testified that he commenced paying the new
wage scales immediately without questioning the amounts.
When he learned in July, according to him, that other con-
tractors were challenging the new wage schedules which
Business Agent Joe Guerrero had submitted, he withheld
further payment of the wage increase. The record reveals,
however, that from the outset, beginning in May, when a
group of contractors, including Adams, met with Guerrero to
discuss the allocation of the wage increase, as well as the
status of foremen and apprentices under the wage increase,
Respondent allied itself with other contractors, including
Home Roofing, who denied that they were bound by the
agreement. Thereafter, at least as early as May 23, when
attorney Kent demanded certain changes in the collective-
bargaining agreement , Respondent made common cause with
the other contractors in asserting their demands for renego-
tiating the contract, while insisting on arbitration of their
grievances . Maintaining that, because of the allegedly errone-
ous figures Guerrero had submitted, Respondent had "over-
paid" wages under the current, as well as the previous, con-
tract, and that the Union had itself violated provisions of the
agreement, Respondent unilaterally determined to withhold
further wage and fringe benefit increases until the contro-
versy was determined by arbitration.
Without passing on the merits of Respondent's position,
the fact remains that it withheld the wage increases unilater-
ally, and without bargaining with the Union before undertak-
ing that action. Respondent's position that the Union's fig-
ures were erroneous or that the Union had itself engaged in
violations of the contract furnished no justification for Re-
spondent's unilateral action. Any negotiations in which Re-
spondent may have attempted to engage with the Union were
based on a fait accompli. Respondent withheld the increases
and then sought to bargain about the issue as only one of
myriad grievances invoked in a scarcely concealed attempt to
compel renegotiation of the contract.
With regard to Respondent's attempted rescission of the
contract, on August 6, the action constituted a unilateral
repudiation of the contract and, as such, a refusal to bargain.
Respondent's letter of October 25 did not constitute an effec-
CAPITOL ROOF & SUPPLY COMPANY, INC.
tive withdrawal of-its attempted rescission . The letter makes
it abundantly clear that Respondent was not renouncing its
efforts to terminate and renegotiate the contract and to pur-
sue its claim against the Union for alleged violation of the
contract, including the no-strike provisions . As stated in the
letter , all that Respondent was withdrawing was the "rescis-
sion aspect" of the letter . Respondent left no doubt that it did
not intend to abide by the terms and conditions of the Master
Labor Agreement, particularly those relating to the payment
of wage increases and fringe benefits. Moreover , in its letter
of rescission , Respondent notified the Union that it intended
to deal directly with the employees , in derogation of the
Union's status as exclusive representative . It is, therefore,
found that Respondent 's letter withdrawing the notice of
rescission did not constitute an effective withdrawal of that
notice. It is further found that, by attempting to rescind the
collective-bargaining agreement , on August 6, 1973, Re-
spondent further refused to bargain with the Union in viola-
tion of Section 8(a)(5) of the Act.
The record fully establishes that in July , when it began
hiring replacements, and unilaterally established their wage
rates, Respondent discontinued making the vacation pay and
checkoff contributions to the trust funds required by the
contract. Respondent 's contention that its contributions were
refused is not supported by the record - The contributions
which Respondent sought to make were on behalf of nonunit,
clerical employees only. Be that as it may, Adams told these
employees that he would include their vacation pay and dues
checkoffs in their weekly paychecks , and informed them that
he would cover them for health and welfare benefits by a
separate policy of insurance . Thereafter , he withheld these
cons ributions from the trust funds from August through
November, and did not resume payments of checkoffs until
the month of December . On October 1, he established the
health and welfare insurance plan.
That these actions were taken unilaterally , and without
bargaining with the Union , is manifestly clear. Moreover, by
dealing directly with the employees , and bypassing the bar-
gaining agent , in derogation of its status as exclusive repre-
sentative, Respondent was refusing to bargain within the
meaning of Section 8(a)(5) of the Act.
As to Respondent's contention that it was justified in tak-
ing the unilateral action because of the Union 's alleged viola-
tion of the no-strike and other provisions of the contract, it
is sufficient to point out that Respondent had other remedies
available to it to redress the Union's alleged contract viola-
tions. In fact , Respondent and other contractors eventually
resorted to a civil action, on the last day of the hearing, to
vindicate its position . It did not , however, have the right to
take unilateral action to discontinue and withhold wage in-
creases and fringe benefit contributions required by the con-
tract to accomplish its purpose.
On the issue of deferral to arbitration, Respondent is taking
ambivalent , if not inconsistent positions , by attempting to
repudiate the collective -bargaining agreement while seeking
to resort to the grievance and arbitration machinery to re-
solve grievances not germane to the issues raised in the com-
plaint.
In view of all the circumstances , and for reasons stated in
1007
Home Roofing, it is found that this is not a proper case for
deferral to arbitration , and that the policies of the Act will
best be effectuated by deciding the issues in this proceeding.
It is, therefore , found that, by unilaterally and without
prior notice to or negotiation with the Union , discontinuing
and withholding retroactive wage increases and fringe benefit
contributions; by unilaterally , and without regard to the col-
lective-bargaining agreement, establishing the wage rates of
strike replacements ; by paying directly to replacements, or
depositing to their credit in separate accounts, vacation pay
and dues checkoffs , instead of into the trust funds , as required
under the contract ; by establishing a separate health and
welfare plan in derogation of the Union 's status as exclusive
representative of the employees in the appropriate unit,
Respondent has refused to bargain with the Union , thereby
engaging in unfair labor practices within the meaning of
Section 8 (a)(5), and interfering with , restraining, and
coercing employees in the exercise of rights guaranteed in
Section 7 , in violation of Section 8(a)(1) of the Act.6
As of December 31, 1973, 10 days before the hearing in
these proceedings , Respondent sold a substantial part of its
equipment and physical assets to Bill Adams, Respondent's
former president and general manager. According to John
Franklin, secretary -treasurer and director of the corporation,
no dissolution is presently contemplated , and the assets of the
corporation are adequate to satisfy all foreseeable obligations,
including those which may arise out of these proceedings.
The business of Respondent has been a family enterprise, and
all the stock of the corporation has been owned by a testa-
mentary trust, under which Mildred Adams , mother of Bill
Adams, is lifetime beneficiary . Adams acquired no accounts
receivable and assumed no accounts payable. The lease of the
premises, previously occupied by Respondent, was ter-
minated , and a new lease executed with Adams , commencing
January 1 , 1974. Adams is conducting the roofing business,
previously operated by Respondent, as a sole proprietor, on
a portion of the same premises , employing the majority of
Respondent's former employees . Although Respondent has
assumed liability for obligations arising out of the contract,
Adams has indicated that he does not intend to be bound by
the terms or provisions of the contract , including payment of
wage increases and fringe benefit contributions . It is obvious,
however, that Adams acquired the principal assets of Re-
spondent with full knowledge of the outstanding unfair labor
practice proceeding , and has continued to operate the busi-
ness at the same location , with substantially the same group
of employees , and the same management.
It is, therefore , found that Adams is a successor to the
corporation , jointly and severally liable with Respondent to
redress the unfair labor practices found, and bound by the
contract.
6 The complaint alleges that Respondent's conduct in denying unit em-
ployees retroactive pay, and in withholding fringe benefit contributions, also
violates Sec . 8(a)(3) Since such a finding would not affect the remedy, it
is unnecessary to decide this issue
1 1008' DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
D. The Refusal To Bargain
I. The appropriate unit; majority representation
The complaint alleges, Respondent's answer admits, and it
is 'hereby found, that the following-described unit is, and at
all times material herein has been, an appropriate unit for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees employed by Respondent engaged in
the application of roofing, waterproofing, slate, tile, as-
bestos (rigid), abestos and composition siding and roof
insulation materials including enamelers , protective
coating workers, pipe wrappers, journeyman roofers,
roofers, shinglers and siders, but excluding office clerical
employees, guards and supervisors as defined in the Act.
The complaint further alleges, Respondent's answer ad-
mits, and it is hereby found that, at all times material herein,
more particularly since August 27, 1972, to date, the Union
has been the representative for the purposes of collective
bargaining of the employees in the unit described above, and,
by virtue of Section 9(a) of the Act, has been, and is now, the
exclusive representative of all the employees in said unit for
the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment.
2. The refusal to bargain
The record establishes that, although Respondent initially
granted its employees the retroactive wage increase, and con-
tributed the increased payments to the trust fund, it subse-
quently ceased making these payments without legal justifica-
tion. The reasons advanced by Respondent here are
substantially those raised by the Respondent in Home Roof-
ing, and for reasons there stated, are rejected.
It is, therefore, found that, by its conduct, previously de-
tailed, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5), thereby interfering
with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7, in violation of Section 8(a)(1)
of the Act:
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above,
occurring in connection with the operations of Respondent,
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several states and tend to lead to labor disputes obstruct-
ing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act, it will be recommended that it cease and desist there-
from, and take certain affirmative action designed to effectu-
ate the policies of the Act. It has been found that Respondent,
unilaterally and without prior notice to or negotiation with
the Union , discontinued and withheld retroactive wage in-
creases and fringe benefit contributions , required by the Mas-
ter Labor Agreement, effective from August 27, 1972, to
August 27 , 1974. It will, therefore, be recommended that
Respondent reimburse said employees for the amounts of said
wage increases , less such partial payments which Respondent
may have paid retroactively , together with interest, computed
in accordance with the formula prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). It will also be recom-
mended that Respondent continue to pay its employees the
wage increases required under said Master Labor Agreement,
and make the contributions to the Health and Welfare Fund,
Apprenticeship and Training Fund , together with the wage
deductions for the Vacation Fund and the Union Dues check-
off, as required by said collective-bargaining agreement,
together with interest computed in accordance with the Isis
formula.
Upon the basis of the above findings of fact, and upon the
entire record in the case, including the record in Home Roof-
ing Co., Inc., Case 31-CA-4014, I make the following:
CONCLUSIONS OF LAW
1. Capitol . Roof & Supply Company, Inc., Respondent
herein , is now , and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association, Local Union No. 137, the
Union herein, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3. All employees employed by Respondent engaged in the
application of roofing, waterproofing, slate, tile, asbestos
(rigid), asbestos and composition siding and roof insulation
materials including enamelers, protective coating workers,
pipe wrappers, journeymen roofers, roofers, shinglers and
siders, but excluding office clerical employees, guards and
supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
4. United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association, Local Union No. 137, the
Union herein, was, on August 27, 1972, and, at all times
material has been, the exclusive representative of all the em-
ployees in the appropriate unit described above for the pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
5. By unilaterally, and without prior notice to or negotia-
tion with the Union, discontinuing and withholding retroac-
tive wages and fringe benefit contributions; by unilaterally
determining the wage rates to be paid to employees; by failing
and refusing to make required contributions to the trust funds
on behalf of employees or strike replacements; by unilaterally
establishing a health and welfare plan, in derogation of the
trust fund provisions of the collective-bargaining agreement;
by rescinding said agreement; and by all the foregoing con-
duct, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5), thereby interfering
with, restraining, and coercing employees in the exercise of
CAPITOL ROOF & SUPPLY COMPANY, INC.
rights guaranteed in Section 7, in violation of Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER7
The Respondent, Capitol Roof & Supply Company, Inc.,
Santa Barbara, California, its officers, agents, successors and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate
unit, by unilaterally and without prior notice to or negotia-
tion with the Union, discontinuing and withholding retroac-
tive wage increases and fringe benefit contributions; unilater-
ally determining wage rates to be paid to employees; failing
and refusing to make required contributions to the trust funds
on behalf of employees or replacements; unilaterally estab-
lishing a health and welfare plan in derogation of the trust
fund provisions of the collective-bargaining agreement; re-
scinding said agreement; or in any like or similar manner
making any changes in wages, hours, or terms or conditions
of employment of our employees in the appropriate unit.
(b) In any like or related'manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to
self organization , to form labor organizations , to join or assist
United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association, Local Union No. 137, or
any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in other
protected concerted activities for the purpose of collective
bargaining or other mutual aid or protection guaranteed in
Section 7 of the Act, or to refrain from any and all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, permitted by the proviso
to Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which, it is found,
will effectuate the policies of the Act:
(a) Bargain collectively with the Union as the exclusive
representative of Respondent's employees in the appropriate
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment.
(b) Abide by, and apply the terms and conditions of, the
Master Labor Agreement, effective from August 27, 1972, to
August 27, 1974, with regard to retroactive wage increases
and fringe benefit contributions, and tender backpay to, and
make contributions to the trust funds, on behalf of the em-
11[n the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
1009
ployees in the appropriate unit, in the manner set forth in the
section above entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its place of business at Santa Barbara, Cali-
fornia, copies of the attached notice marked "Appendix. "8
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by Respon-
dent's authorized representative, shall be posted by Respond-
ent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Respond-
ent to ensure that said notices are not altered, defaced, or
covered by other material.
(e) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
8 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers' Association, Local Union No.
137, as the exclusive representative of all our employees
in the appropriate unit, by unilaterally, and without
prior notice to or negotiation with the Union, discon-
tinuing or withholding retroactive wage increases and
fringe benefit contributions required by the Master La-
bor Agreement, effective from August 27, 1972, to Au-
gust 27, 1974; unilaterally determining wage rates to be
paid employees; failing and refusing to make required
contributions to the trust funds on behalf of employees
or replacements; unilaterally establishing a health and
welfare trust plan in derogation of the trust fund provi-
sions of the collective-bargaining agreement; rescinding
said agreement; in any like or related manner making
any changes in wages, hours, or terms or conditions of
employment of our employees, without notice to and
consultation with said Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the right to self-organization, to form labor organiza-
tions, to join or assist United Slate, Tile and Composi-
tion Roofers, Damp and Waterproof Workers' Associa-
tion, Local Union No. 137, or any other labor
organization, to bargain collectively through representa-
1010 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
tives of their own choosing and to engage in other pro-
tected concerted activities for the purpose of collective
bargaining or other mutual aid or protection guaranteed
in Section 7 of the Act, or to refrain from any and all
such activities , except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization, as permitted by the proviso to Sec-
tion 8(a)(3) of the Act, as amended.
WE WILL NOT fail or refuse to pay our employees in the
appropriate unit, described below, all wage increases
required under the Master Labor Agreement, above
described, and make the contributions of fringe benefit
increases to the trust funds , required under said Agreement.
WE WILL bargain collectively with the Union as exclu-
sive,representative of our employees in said appropriate
unit with respect to rates of pay, wages , hours and other
terms and conditions of employment.
WE WILL abide by, and apply the terms and conditions
of the Master Labor Agreement, above described, to the
employees in the appropriate unit, retroactively to the
effective date thereof, and tender backpay to, and make
contributions for fringe benefits to the trust funds, on
behalf of the employees in the ' appropriate unit, in the
manner set forth in the section of the Decision entitled
"The Remedy."
The appropriate unit is:
All employees employed by Respondent engaged in
the application of roofing , waterproofing , slate, tile,,
asbestos (rigid), asbestos and composition siding and
roof insulation materials including enamelers , protec-
tive coating workers, pipe wrappers, journeyman roof-
ers, roofers , shinglers and seders , but excluding office
clerical employees , guards and supervisors as defined
in the Act.
CAPITOL ROOF & SUPPLY COMPANY,
INC