Carlson Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1979

245 N.L.R.B. 13 (N.L.R.B. 1979)

CARLSON ROOFING CO., INC.
Carlson Roofing Co., Inc. and Roofers Local No. 6,
United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO.
Case 33-CA-3680
September 19, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On July 11, 1979, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Carlson
Roofing Co., Inc., Rockford, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph (c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act."
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 In par. (c) of his recommended Order. the Administrative Law Judge
provided that Respondent shall cease and desist from "in any other manner"
interfering with, restraining, or coercing its employees in the exercise of their
rights guaranteed in Sec. 7 of the Act. However, it is the Board's policy that
such an order is warranted only where a respondent is shown to have a
proclivity to violate the Act, or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the employees' funda-
mental statutory rights. Hickmott Foods, Inc., 242 NLRB 1357 (1979). We
find that the broad injunctive order issued against Respondent is not war-
ranted in this case, and we will modify the Administrative Law Judge's
Order and notice accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidencc, it has been decided that
we violated the law and we have been ordered to post
this notice. We intend to carry out the Order of the
Board and to abide by the following:
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities ex-
cept to the extent that the employees' bargain-
ing representative and the employer have a
collective-bargaining agreement which im-
poses a lawful requirement that employees be-
come union members.
In recognition of these rights, we hereby notify
our employees that:
WE WIIL NOT threaten employees in order to
influence their protected concerted activities or
their activities on behalf of Roofers Local No. 6,
United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association, or
any other labor organization.
WE WILL NOT discharge or otherwise discrimi-
nate against employees and thereby discourage
their membership in or support for the above-
named Union, or any other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL make whole our employees for any
losses they may have suffered as a result of our
unlawful discrimination against them on April
12, 1978. plus interest.
CARLSON ROOFING CO., IN('C.
DECISION
BERNARD RIES, Administrative Law Judge: This matter
was heard in Rockford, Illinois. on April 17. 1979. The
245 NLRB No. 4
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint alleges that Respondent, on April 12, 1978,
threatened its employees with loss of work because of their
protected activities in violation of Section 8(a)(1) and, on
the same date, laid off almost all of its employees for I day
in violation of Section 8(a) (3) and (1).
Briefs have been received from the General Counsel and
Respondent. On the basis of the entire record,' the demea-
nor of the witnesses, and consideration of the briefs, I make
the following findings, conclusions, and recommendations.'
Respondent, which is engaged in the roofing construction
and repair business in Rockford, Illinois, has recognized the
Union as the bargaining representative of its employees for
perhaps 40 years. Since at least 1970 Respondent has bar-
gained with the Union on a multiemployer basis; it is the
largest Employer in the group, employing about 50 work-
ers.
Some 95 percent of Respondent's business consists of
roof construction; the other 5 percent is roof repair. Since
at least 1970 successive bargaining agreements have con-
tained the following provision relating to the manning of
repair crews:
Patch and repair crews shall consist of one or more
journeymen roofers along with helpers as required for
safe working conditions and accepted roofing practice.
If working conditions at job site proves need for addi-
tional help, the foreman shall call the employer for
additional help or instructions.
It appears from the testimony that under the foregoing
provision in years prior to 1978 it had been Respondent's
general practice to assign only one employee to perform
patch and repair work.' Philip Schultz, a former employee
of Respondent, became business agent of the Union in July
1977 and soon thereafter began a campaign of sorts to con-
vince the contracting roofers to send no less than two men
out on repair jobs, citing safety considerations. 4 The issue
was one of the matters discussed at a labor-management
meeting held in September 1977 between the Union and
representatives of Respondent and other contractors.
At that meeting Edwin Carlson, president of Respondent,
told Schultz that precedent back to 1940 permitted the con-
tractors to send only one employee to do repair work, and
that any change in that manning rule should await negotia-
tions for the successor to the existing bargaining agreement
due to expire on May 31, 1978. The Union, however,
pushed for two-man crews, and in the end, Carlson testified,
he "decided to give it a try, on a trial basis and see how it
works out." Schultz testified that it was left that there
should be two men "when you have to take materials up the
ladders."
I Certain errors in the transcript have been noted and are hereby cor-
rected.
2The pleadings establish that assertion of jurisdiction by the Board is
warranted here, and that the Charging Party is a statutory labor organiza-
tion.
Resp. Exh. I is a compilation of repairjobs for the years 1968-78, and on
its face it gives the impression that until 1977 virtually no repair jobs were
manned by two-man crews. However, Respondent's President Carlson testi-
fied that the jobs shown on the exhibit were chosen at "random"; he "didn't
pick every job." The exhibit is, therefore, useless for most purposes.
4 At the hearing Schultz spoke of the danger involved in hauling matenals
up a ladder and also referred to the case of an employee alone on a roof who
had suffered a heart attack.
Thereafter, although he considered the practice uneco-
nomical and unfair to his customers, Carlson for the most
part referred two employees to repair jobs. There were
some occasions, however, on which Carlson reverted to
sending only one man to do repair work. In this connection
Carlson mentioned employee George Gentzel, who was
"doing the majority of the repair." After September 1977
Gentzel "had done one or two or three small repair jobs"
by himself. While Carlson said that during this period
Gentzel showed more "resistance" to working alone on re-
pair jobs, he "did not refuse" to so work. On a few occa-
sions after September 1977 Carlson discussed the two-man
crew issue with business agent Schultz, saying that he was
unhappy with the arrangement. On one of the last occa-
sions, according to Carlson, Schultz said "that it would be
changed June Ist' to get this thing cleared because there
was a difference of opinion."
On April II Carlson assigned Gentzel to a small repair
job in Oconomowoc, Wisconsin, for the following day.
Gentzel testified that he told Carlson that he "would like to
have some help because it's kind of a tough job to get to.
You have a lot of walking to do." Carlson said that he did
not want to send a second man to this minor job. Gentzel
conceded that he also told Carlson that he desired help
because he "couldn't afford to be fined" by the Union. Fi-
nally, however, Gentzel said "okay" and prepared his truck
fbr travel the following day.
The Union constitution requires that notice be given by a
local to a sister local in whose jurisdiction work is going to
be performed by the former. Accordingly, Gentzel called
Schultz, his business agent, to notify him of the Wisconsin
job, also saying, according to Schultz, that he "didn't want
to go by himself." Schultz reminded Gentzel of the practice
of clearing with a sister local when moving into its territory.
Apparently operating on the assumptions that Respondent
would or should have two men working the Oconomowoc
job and that Respondent would also honor the union con-
stitution provision regarding having sister locals share a job
equally in these circumstances, Schultz then contacted the
Milwaukee local himself. He "cleared" Gentzel into the
Milwaukee jurisdiction and also arranged for an employee
to be referred by the Milwaukee local to the Oconomowoc
site.
Schultz then called Bob Hallberg, Respondent's superin-
tendent, and told him about the arrangement with the Mil-
waukee local. Hallberg said that Respondent wanted Gent-
zel to do the job himself, and that he would cancel, i.e.,
postpone, the repair job for the present. Hallberg told
Schultz to convey that information to Gentzel and to the
Milwaukee local.
Early the next morning Hallberg informed Carlson of the
conversation with Schultz. Carlson then spoke with em-
ployee Nick Di Angelo, a 38-year employee and a member
of the union executive board. Carlson said that he and his
brother, a co-owner of Respondent, had decided that two-
man crews were too expensive. Di Angelo advised him to
"go by the contract" and also to call Schultz.
At about 6:45 a.m. Carlson called Schultz at the union
hall and said that he and his brother had been discussing
' As noted, the contract was to expire May 31.
14
CARLSON ROOFING CO., INC.
the question of two-man crews and felt that the precedents
favored the use of only one man. Schultz "mentioned some-
thing about that to be a subject of negotiations," and Carl-
son then asked what would happen if he sent a man home
for refusing to do some work by himself. Schultz replied
that "a man would have a right to file a grievance." When
Carlson then asked what would happen if he sent all the
employees home, Schultz said "that was up to him." Di
Angelo testified without contradiction that after Carlson
completed this call he kicked a pail and said, "We ain't
going out until we get this damn thing straightened out. I
don't care if it takes until June the Ist."
Shortly thereafter, Carlson called a meeting of the 30 to
35 roofers present and waiting to go to work. The various
testimonial accounts are in some conflict as to what oc-
curred, but I believe the following is a reasonably accurate
summary.
Carlson read aloud the contract provision about repair
crews and told the employees that the use of two-man crews
was contrary to a long past practice and was uneconomical.
Employee John York, a witness for General Counsel, testi-
fied that Carlson stated that "if he sent one guy out, the guy
will be fined. Somebody in the local said that one man
would be fined if he goes to work by himself." Carlson
further said that the employees would not work until the
dispute was straightened out. Evidently based on a claim by
Carlson to Di Angelo that some of the men wanted to work
by themselves in doing repair work Di Angelo asked that he
name the men. Carlson named Gentzel, Ray Miethke, and
John Sypnieski. Someone, probably Di Angelo, then asked
Gentzel if he wanted to work alone on repair jobs. He re-
plied that he did not. Sypnieski may have made a similar
statement and, according to the probably accurate testi-
mony of employee David Sadtler, who appeared for Re-
spondent, Miethke said that as long as "his understanding
of the contract" was that "one man shouldn't work by him-
self," he would not do so. Gentzel did not, however, cate-
gorically refuse to work on the Oconomowoc job or on any
other job by himself.6 According to his own testimony, Di
Angelo stated to Gentzel toward the end of the meeting
that "either you guys have got to go by the contract or we'll
get rid of it. We'll tear it up." The meeting ended with
Carlson saying that there would be no "work that day until
'To the extent that Carlson's somewhat confused testimony states that
Gentzel "refused" to work on April 12 I think that he draws an erroneous
conclusion. After saying that Gentzel "refused" to work alone, Carlson ex-
plained, "He said that he did not want to go to that job unless he had help."
Gentzel, an impressive witness, testified that he did mention the possibility of
a fine to Carlson on April II but said that after Carlson told him not to
worry about it he said "okay" and prepared for the trip. In his first appear-
ance on the stand Carlson stated that he talked with Gentzel on April I I: in
his second appearance he did not even "remember talking to George on
April i1," although he surely did have a conversation with Gentzel then.
Although Superintendent Hallberg testified that Gentzel had not told him
that he did not want to do the job by himself, Carlson said that Hallberg had
related that Gentzel had said he did not want to, and that he feared being
fined. It appeared to me that Carlson, obviously a decent individual, was
caught up in the justice of his cause, and that his testimony was accordingly
somewhat tendentious. The initial testimony of Sadtler to the effect that
Gentzel said, on April 12, that he "didn't want to go" is not inconsistent with
Gentzel's testimony that he expressed reluctance, not refusal. Although Sadt-
ler subsequently made it sound as if Gentzel had flatly refused, he conceded
that he could not recall the "exact words."
we get this settled." That he further made reference to ter-
minating work until June 1. the expiration date of the con-
tract, is indicated not only by Carlson's testimony that he
asked the employees if the issue was so vital to them that
they "would stay out until June Ist" but also by Respon-
dent witness Sadtler's testimony that Carlson said that "we
may not work until June."
The work was suspended for only I day. Carlson testified
that legal counsel advised him to return the men to work.
and he did so on April 13. It appears that Gentzel was the
only one of the suspended employees who had been as-
signed to repair work on April 12; the others had evidently
been detailed to work in large crews on roof construction
jobs.7
The evidence is hazy regarding the issue of the imposition
of union fines on members who performed repair work by
themselves. It is clear that the Union never formally an-
nounced such a rule. There is testimony that when the re-
pair crew issue had been occasionally discussed at union
meetings Schultz "communicated that it was the Executive
Board's and my position that the men were not safe work-
ing by themselves." Gentzel, the union recording secretary,
testified that at these meetings, "the position of the Board
. . .was that two men were required on patch and repair
jobs." Schultz further testified that at one meeting a mem-
ber had mentioned something about fining members who
worked alone.
The manning subject had also been the subject of discus-
sion at union executive board meetings. Schultz said that he
had never personally mentioned the possibility of a fine at
these meetings, but Gentzel said that the board, talking "as
a group" at the board meetings, "discussed that there
should be a fine brought up to try and stop it."' Since Gent-
zel admittedly mentioned the possibility of a fine to Carlson
on April I I, it can be argued either that he seriously feared
that possibility, or he was simply using it as an excuse to
persuade Carlson to comply with the union position on
manning. The latter seems more likely. Thus, Carlson's tes-
timony indicates that Gentzel had referred to the fine sanc-
tion prior to April I 1 but had nonetheless gone out alone to
work. Gentzel, asked whether he had worked alone on re-
pair work even after the executive board meeting in which a
fine had been discussed, said that he had done so. Di An-
gelo also referred to an occasion prior to April 12 on which
Gentzel had said to him that members could be fined for
working alone, and Di Angelo had told him that he was,
"wrong. We can't fine anybody."
Nonetheless, it does appear that the Union was paying
attention to the situation. On one occasion, probably
around April, Sadtler had been sent out on a one-man job,
and when he returned Gentzel inquired about whether he
had been working by himself, saying that he was not sup-
posed to. Sadtler lied, saying there had been another man
with him. The following day he ran into Schultz, who in-
quired whether Sadtler had worked alone the previous day:
Sadtler said that he had not.
Six employees were not present at the meeting, being engaged elsewhere
at the time.
I The record is unclear as to the practice of other contractors under con-
tract to the Union with regard to this issue.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions
The complaint alleges that the layoff of all but six of
Respondent's employees on April 12 was provoked by the
fact that "the Union on their behalf and the employees
themselves engaged in protected Union and/or concerted
activities" and accordingly violated Section 8(a)(3) and (1)
of the Act.
As a broad characterization of the facts, the complaint
appears to be accurate. The chain of events which led to the
l-day layoff-beginning with Gentzel's stated reluctance on
April I to work alone, which would have been contrary to
the Union's well-known position on that question; continu-
ing with the report to Carlson on April 12 that Schultz had
arranged with the Milwaukee local for a second roofer to
accompany Gentzel; and ending with the resistance ex-
pressed by Gentzel and one or two other employees at the
April 12 meeting on the subject of working alone-unques-
tionably constituted "concerted" activity by the employees
taken in support of union policy. Respondent argues, how-
ever, that the position being espoused by the Union and the
employees was not statutorily "protected" because it was "a
repudiation of a promised obligation under the contract,"
citing N.L.R.B. v. The Sands Manufacturing Co., 306 U.S.
332 (1939).
Sands is inapposite. There the union had informed man-
agement that "the company could close its entire plant if it
chose, but it could not operate the machine shop in accord-
ance with the provisions of the contract." The Supreme
Court held that since the company "rightly understood that
the men were irrevocably committed not to work in accord-
ance with the contract," it was free "to treat them as having
severed relations with the company because of their
breach." The differences between that case and this one are
significant.
For one thing the union position as expressed by
Schultz-that two men should be assigned to repair work
"when you have to take materials up the ladders"--can
scarcely be considered, in the circumstances, a declaration
of intent "not to work in accordance with the contract."
The disputed contract provision requiring "one or more
journeymen roofers along with helpers as required for safe
working conditions" is clearly susceptible to a construction
that at least two employees should be assigned to any job at
which it can reasonably be contended that safety would be
imperiled by anything less. The fact is that despite the prior
practice of operating with one-man repair crews Respon-
dent acquiesced from September 1977 until April 1978, a 7-
month period, in Schultz' interpretation of the clause by
manning virtually all repair jobs with two-man crews. This
experience not only lends support to the construction of the
agreement urged by the Union, but it also shows that Re-
spondent had, so far as Schultz knew, fully agreed, however
grudgingly, to keep that interpretation in effect until nego-
tiations for the new agreement were conducted.
A further distinction between this case and Sands, even
assuming arguendo that the construction asserted by the
Union was an improper one, is that here the Union made
no unequivocal declaration of its intent to enforce that con-
struction. The possibility of fining a member for working
alone had been unquestionably bruited about, but the no-
tion had never remotely achieved the status of formal union
policy. Schultz, clearly the most important union official,
had never mentioned the word. The executive board had
discussed the subject but took no action. A member had
evidently urged it at a union meeting, but the matter was
pursued no further. It is obvious that Schultz was staking
out a staunch position on the two-man crew issue, and that
Gentzel and perhaps the few other employees who per-
formed most of the repair work thought it at least conceiv-
able that a fine could eventuate from working alone. But
that possibility had evidently not seemed serious enough to
deter Gentzel from contravening the policy; Carlson's own
testimony shows that Gentzel had gone out alone on recent
previous occasions after alluding to a fine.
Nor is there any merit in Respondent's related contention
that a "partial strike" occurred here. In view of Carlson's
testimony that he consistently sent out two-man crews for a
7-month period pursuant to Schultz' request in September
1977 it is difficult to follow Respondent's assertions on brief
that "[flor months the Union and employees had resisted
Respondent's legitimate directions in running its business"
and that "Carlson had advised Schultz repeatedly ... that
his insistence on two men for repairs was unacceptable."
The "legitimate directions" given during the relevant period
had, in fact, been that two men, not one, should do repair
work; and while Carlson told Schultz several times that
two-man crews were undesirable, his actions belie the claim
that he called them "unacceptable."
Furthermore, there was no "strike." As I have found
above, Gentzel no more "refused" to work alone on April
12 than he had on earlier occasions when he had indicated
to Carlson that he did not want to work alone and then did
so anyway. What obviously made the difference on April 12
is that Carlson became angered by Schultz' perceived pre-
sumptuousness in contacting the Milwaukee local about
sending another man out. Instead of simply telling Schultz
to cancel the arrangement with the Milwaukee local and
then ordering Gentzel to do the job by himself Carlson lost
his temper and put Gentzel on the spot in front of the other
employees. When Gentzel repeated that he did not want to
work alone and one or two others similarly expressed them-
selves in answer to a hypothetical question Carlson's anger
exploded and a mass suspension ensued, mostly affecting
employees who were in no way involved in the dispute.
Trying to force these tentative and untested employee senti-
ments into a "partial strike" mold is a futile effort in this
context.
Respondent further argues that it did not violate Section
8(a)(3) because it merely engaged in a lawful I-day lockout
of employees for a legitimate business purpose.
Ordinarily, when an employer adversely affects the em-
ployment status or privileges of his employees for reasons
connected with the exercise in a manner not deemed to
render that exercise unprotected of their right to assist or be
represented by labor organizations, he engages in the kind
of discrimination proscribed by Section 8(a)(3). Because
locking out working men-refusing to let them perform
available work-has such a potentially devastating effect on
their personal lives and a concomitantly inhibiting effect on
their willingness to engage in Section 7 activities when the
lockout is patently related to their collective action the
16
CARL30N ROOFING CO., INC.
Board has, over the years, generally held lockouts to be
unlawful. As collected by the United States Supreme Court
in American Ship Building Co. v. N.L.R.B., 380 U.S. 300,
307 (1965). the Board, prior to that case, had sanctioned
lockouts only to safeguard against loss where a strike was
reasonably thought imminent, Quaker State Oil Refining
Corporation, 121 NLRB 334 (1958): to prevent seizure of a
plant, Link-Belt Company (Dodge Plant), 26 NLRB 227
(1940): to thwart repetitive disruptions of an integrated op-
eration, Internaiolnal Shoe Company, 93 NLRB 907 (1951):
to avoid materials spoilage resulting from a sudden work
stoppage, Duluth Bottling Association el al.. 48 NLRB 1335
(1943): to avert the immobilization of property belonging to
customers, Belts Cadillac Od.s, Inc., 96 NLRB 268 (1951):
and to preserve the integrity of a multiemployer bargaining
unit from disintegration by a whipsaw strike. Bufdalo Linen
Suppvly Compan el al., 109 NLRB 447 (1954).
In American Ship, supra, and N.L.R.B. v. Brown e al..
dba Brown Food Store, 380 U.S. 278 (1965), the Court took
a fresh look at the lockout and concluded that the Board
had been applying the statute too stringently. The Court
held in the former case that an offensive lockout, that is.
one not merely designed to be protective, may be accept-
able: "an employer violates neither §8(a)(1) nor §8(a)(3)
when. after a bargaining impasse has been reached, he tem-
porarily shuts down his plant and lays off his employees for
the sole purpose of bringing economic pressure to bear in
support of his legitimate bargaining position." 380 U.S. at
318. In Brown the Court ruled that it was not unlawful for
nonstruck, i.e., whipsawed, members of a multiemployer as-
sociation to lock out employees and hire temporary replace-
ments for them in order to maintain parity with the struck
employer who had hired such replacements.
These decisions issued on the same day. The pendulum
appeared to swing precipitously in favor of the lockout in
Justice Stewart's opinion for the majority in American Ship.
which seemed to conclude that a lockout should generally
be held lawful in the absence of specific evidence of wrong-
ful motivation, with only the exception of "some practices
which are inherently so prejudicial to union interests and so
devoid of significant economic justification that no specific
evidence of intent to discourage union membership or other
antiunion animus is required." 380 U.S. at 300. The Brown
test for finding a violation in the absence of a showing of
actual motive was spelled out by Justice Brennan in argu-
ably less restrictive terms: the Board need not inquire into
motivation in order to find an unfair labor practice "where
the employer conduct is demonstrably destructive of em-
ployee rights and is not justified by the service of significant
or important business ends" 380 U.S. at 282.
Subsequently, in Darling and Company, 171 NLRB 801
(1968). where it was found that the parties had bargained
"extensively and in good faith on all subjects." the union
had declared that it would strike, if it did so, at a time of its
own choosing, and there had been a history of work stop-
pages in the busy season; the Board, following the lead of
the Supreme Court, held that the employer committed no
violation in locking out the employees prior to an actual
impasse in the negotiations.
On review of this decision, Lane v. N.L.R.B., 418 F.2d
1208, 1211 (D.C. Cir. (1969)). the court, while upholding
the Board, noted that the "Supreme Court's approach to
Sections 8(a)(1) and (3) of the Act is presently in a state of
flux," but that "[i]n twtr-ater cases, however, the Court
seems to have retreated from its per se approach in Ameri-
can Ship." The later cases were N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26 (1967), and N.L.R.B. v. Fleetwood
Trailer Companv, Inc.. 389 U.S. 375, 378 (1967), where "the
Court added to its American Ship formulation a new cate-
gory covering employer conduct which had only a 'com-
paratively slight' adverse effect on employee rights ... once
the union has shown some adverse effect upon the rights of
the employees, the employer must bear the burden of estab-
lishing the 'legitimate and substantial business justifica-
tions' for his conduct." To this most recent gloss on Section
8(a)(3) and (I), the district court added that "[p]erhaps the
most significant part of this test is the Court's requirement
that the reasons advanced be substantial. Apparently the
employer must demonstrate that his interest in pursuing the
conduct at least balances the harm inflicted on the rights of
the employees" 418 F.2d at 1209, 1210, 1211.
It would not be unreasonable to argue that in the present
case Carlson was inspired by union "animus" in taking the
action that he did. His ire was, it seems clear, specifically
aroused by union representative Schultz' call to the Mil-
waukee local, and I feel confident that had it not been for
that 30 to 35 men would not have been laid off on April 12.'
While the record shows that Respondent had otherwise
maintained a lengthy and positive relationship with the
Union, this flash of anger, resulting in reprisal against the
employees because of the conduct of their agent. might ar-
guably be classified as the sort of union animus which ren-
ders a lockout unlawful.
However, being less than certain about this argument, I
shall address the combinations of elements set out in Great
Dane Trailers, supra, which render unnecessary an inquiry
into actual motive. The first Grea Dane category, making
unlawful "inherently destructive" employer conduct even
though the conduct maN be based upon important business
considerations, might apply here. As seen by the bystander
employees, Respondent's drastic response to the allegiance
to union policy expressed by a single employee might well
have engendered among them a widespread and deeply
rooted fear of provoking Respondent about such matters in
the future. a result which seemingly qualifies as "inherently
destructive" of their Section 7 rights. '
There is no need to resolve that question, however, be-
cause it is clear that the second Great Dane category re-
quires a finding of violation here. Certainly, the suspension
had at least a "comparatively slight" effect on the rights of
the employees for the reason given above, and it thus be-
comes incumbent upon Respondent to come forward with
"evidence of legitimate and substantial business justifica-
' As Carlson testified. "A business agent doesn't hire people oIfr us . If
the nion is going to request men, then the' should pay for them. So that
was wrong.
10 Compare Great Dane Trailers, supra, 388 U S at 32: "The act of paying
accrued benefits to one group of employees while announcing the extinction
of the same benefits for another group of employees who are distinguishable
only by their participation in protected concerted activities surely may have
a discouraging effectl on either present or future concerted activity."
17
DECISIONS OF NATIONAL LABOP .:'LATIONS BOARD
tions for the conduct." Respondent's effort to meet that
burden falls far short of the mark.
As pointed out above, it seer' .s probable that at one
level Carlson was acting out of sheer pique. Di Angelo's
testimony that as Carlson "booted a pail" he said, "We
ain't going out until we get this damned thing straightened
out" also suggests that Carlson had in mind settling the
crew size issue to his satisfaction. That is arguably a legiti-
mate bargaining objective, but in the circumstances, the
failure to achieve that objective cannot constitute a "legiti-
mate and substantial business justification" for suspending
the employees.
For one thing, Carlson chose to hammer out the issue not
by negotiation with Schultz, the plainly responsible union
spokesman with whom he had been dealing in the past, but
by confronting a group of surprised employees who do not
appear to have had any authority for negotiating clarifica-
tions of the multiemployer contract. For another, passing
the question of the propriety of such direct dealing with
individual employees, Carlson did not negotiate but rather
dictated. He did not call Schultz to seek agreement to revi-
sion of the detente under which the parties had been living
for 7 months, and as to which, according to Carlson's own
testimony, when he had recently broached the matter with
Schultz it was left that "it would be changed June Ist to get
this thing cleared because there was a difference of opin-
ion."" He did not even test the intensity of Gentzel's con-
viction by ordering him to perform the Oconomowoc job by
himself. Instead, without exploring any other avenue of re-
lief, Carlson abruptly chastised the employees for their ad-
herence to an arrangement under which he had, to all ap-
pearances, been living peacefully for 7 months and,
perceiving no immediate change of position on their part,
laid all of them off.
Unlike Darling and Company, supra, there was no threat
to strike, no history of past work stoppages, and no "bar-
gaining extensively and in good faith on all subjects." In
these circumstances it can scarcely be said that a "legiti-
mate and substantial business justification" existed for lay-
ing off all the employees on April 12.'2
I note that in describing above Respondent's reason for
the layoff I may be stating the case to Respondent's advan-
tage. Carlson testified that he told the man, "If we give in
today, we've lost it, as far as I was concerned. We were
setting a precedence [sic] and now we are giving in." Re-
spondent's brief states, "As explained by Carlson, the pur-
pose for his action was to avoid a precedent at the negotiat-
ing session for a new contract." If what Carlson meant here
was that sending two men to do a repair job would set a
precedent, then he was simply wrong, since that had been
the general practice for 7 months. If he meant that allowing
Gentzel to refuse to do the job without sanction was the
precedent he wished to avoid, that could have been pre-
ll Negotiations for the new agreement did not begin until April 17.
12 Compare N.L.R.B. v. David Friedland Painting Co., Inc., 377 F.2d 983,
939 (3d Cir. 1967): "The natural tendency of [the lockout] was to discourage
in some degree membership in Local 144. As slight as that tendency may
have been, it looms large when compared with the economic justification for
Friedland's actions."
vented by ordering Gentzel to do the work and then if he
declined disciplining him. In an immediate dispute which
involved only the possible insubordination of one employee
there can be no "legitimate and substantial" justification for
the suspension of the entire work force.)
On the basis of the foregoing considerations I conclude
that by suspending its employees from work on April 12,
1978, Respondent violated Section 8(a)(l) and (3) of the
Act. For similar cases see Romo Paper Products Corp., 208
NLRB 644, 651 (1974), and Dust-Tex Service, Inc., 214
NLRB 398 fn. 1 (1974). Although it seems superfluous to
also find that Carlson violated Section 8(a)(I ) by his threat
on April 12 to lay off the employees until June . since the
complaint so alleges, I shall so find.
CON(CLUSIONS OF LAW
I. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent interfered with, coerced, and restrained
employees in the exercise of rights guaranteed in Section 7
of the Act, thereby committing unfair labor practices pro-
hibited by Section 8(a)(l) of the Act by: (a) layoff off its
employees on April 12, 1978, and (b) threatening employees
with layoff on April 12.
4. Respondent discriminated with respect to tenure and
terms and conditions of employment, thereby discouraging
membership in a labor organization and committing unfair
labor practices prohibited by Section 8(a)(3) and (1) of the
Act by laying off its employees on April 12, 1978.
TIlE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices within the mean-
ing of Section 8(a)( I) and (3) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the
Act. Accordingly, Respondent shall be ordered to make its
employees whole for any loss of earnings they may have
suffered because of the discrimination against them result-
ing from the layoff on April 12, 1978.' 4 Backpay and inter-
est shall be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
1' In the par. devoted by counsel for General Counsel in her bnef to con-
sideration of the lockout issue she asserts, inter alia, that no legal lockout
occurred because the bargaining agreement "contained an implied no-strike/
no-lockout clause by its grievance procedure which required final and bind-
ing resolution of disputes by the Joint Board," citing Local 174, Teamsters,
Chauffeurs, Warehousemen Helpers of Amerca v. Lucas Flour Co, 369 U.S,.
95 (1962). In fact, the contractual grievance procedure applied only to al-
leged violations by roofing contractors and as to those contractors who were
members of the association provided only for submission to the joint board
for a trial of the alleged violation: thereafter, if the violation was found the
finding "shall be reported to the Executive Board of Roofers' Local 6 for
action."
14 The record is not clear as to which employees would have worked on
April 12 I shall leave that question to the compliance stage of this proceed-
ings.
18
CARLSON ROOFING CO., INC.
231 NLRB 651 (1977). I shall also recommend that tradi-
tional notices be posted.
Upon the foregoing findings of fact, conclusions of law.
and the entire record and pursuant to Section 10(c) of the
Act I hereby issue the following recommended:
ORDER'
The Respondent, Carlson Roofing Co., Inc., Rockford,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoff because of the po-
sitions taken by their union representative and by the em-
ployees acting concertedly.
(b) Discriminating against employees in regard to hire.
tenure, or any term or condition of employment, thereby
discouraging membership in or activities on behalf of Roof-
ers Local No. 6, United Slate, Tile and Composition Roof-
ers, Damp and Waterproof Workers Association, AFL-
CIO, or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
'5 In 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 shallt, 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.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Make whole its employees for losses incurred as a
result of the layoff of April 12. 1978, in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, reports, and all other records necessary to analyze
and determine the amount of backpay due under the terms
of the Order.
(c) Post at its Rockford, Illinois. facility copies of the
attached notice marked "Appendix."6 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 33, after being duly signed by Respondent's represent-
ative, shall be posted by Respondent immediately upon
receipt thereof and maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 33, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"s In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
19