Carlson Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1981

255 N.L.R.B. 393 (N.L.R.B. 1981)

CARLSON ROOFING CO., INC. 393
Carlson Roofing Co., Inc. and General Chauffeurs,
Helpers and Salesdrivers Union No. 325, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 33-CA-4414
March 30, 1981
DECISION AND ORDER
On September 22, 1980, Administrative Law
Judge David S. Davidson issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief, and
the Respondent filed a brief in answer to the ex-
ceptions.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommneded Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
i The Charging Party has excepted to certain credibility findings made
by the Administrative 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 Prod-
ucts 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.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed on August 17, 1979, by
General Chauffeurs, Helpers and Salesdrivers, Local
Union No. 325, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, hereinafter referred to as the Union
or the Teamsters. The complaint issued on September 21,
1979, alleging that Respondent Carlson Roofing Co.,
Inc., voluntarily recognized the Union as the exclusive
representative of certain of its truckdrivers in February
1978, and has failed and refused to recognize and bargain
with the Union since June 20, 1979, thereby violating
Section 8(a)(1) and (5) of the Act. In its answer Re-
spondent denied the commission of any unfair labor
practices.
A hearing was held before me in Rockford, Illinois, on
March 25, 1980. At the conclusion of the hearing the
parties waived oral argument and were given leave to
file briefs, which have been received from the General
Counsel and Respondent.
255 NLRB No. 67
Upon the entire record in this case including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a contractor engaged in commercial and
industrial roofing construction and repair. Its principal
office is in Rockford, Illinois. Respondent annually pur-
chases goods and materials valued in excess of $50,000
which are transported to it directly from points outside
the State of Illinois. I find that Respondent is an employ-
er engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
1. Introduction
For a number of years, Roofers Local Union 6 has
represented, under collective-bargaining agreements, Re-
spondent's journeymen roofers, apprentices, helpers,
working foremen, and all employees engaged in the ap-
plication and installation of roofing materials. In addition
to the work described in the agreement, the roofing em-
ployees have also driven Respondent's vehicles, carrying
crews and materials to and from jobsites.
For some years Respondent maintained a fleet of
trucks which included single-axle crew trucks or stake
trucks, pickup trucks, maintenance trucks, and one-crane
truck, which the roofing employees drove in conjunction
with their duties. Respondent also had an orange single-
axle semitractor and a red Ford double-axle semitractor
which were used by roofers to pull trailers from one
point to another on jobsites and to haul materials to and
from jobsites.
Through 1977, Respondent utilized a common carrier,
Hartwig Transit Company, for additional trucking serv-
ices requiring semitractors and trailers. Hartwig assigned
two tractors and drivers to haul roofing materials and
gravel from suppliers to jobsites. The drivers of these
trucks, Fred Buser and Jeff Wilmarth, were not members
of any labor organization. In late 1977, Respondent
bought a red and white double-axle semitractor, and at
about the same time Respondent hired Buser and Wil-
marth as part-time drivers. In their work for Respondent
they alternated in driving the newly purchased tractor.
They performed no roofing work but occasionally assist-
ed roofers in unloading materials from trailers. At the
time of Buser's hire, Respondent's vice president, Larry
Carlson, told him that they would pay Buser at a rate
equal to what he received from Hartwig and that he
would make provision for health insurance and pension
benefits comparable to what Buser received from
CARLSON ROOFING CO., INC.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hartwig.' Buser in turn communicated Carlson's inten-
tions to Wilmarth who started to drive for Respondent
shortly after Buser. While working part-time, for Re-
spondent, Buser and Wilmarth continued as full-time
drivers for Hartwig, hauling for Respondent.
2. The February 14, 1978, meeting between
Respondent and the Union
In late 1977, some of Respondent's roofing employees
complained to Schultz, the business agent of Roofers
Local Union 6, that Respondent had purchased a new se-
mitractor and hired a nonunion driver. Schultz in turn
transmitted the complaint to Teamsters business repre-
sentative, Giardono, identifying Buser as the driver in
question. Thereafter, Giardono called Glenn Torpoff, ex-
ecutive director of Northern Illinois Building Contrac-
tors Association (NIBCA) of which Respondent is a
member and, at Giardono's request, Torpoff arranged for
a meeting on February 14, 1978, between Giardono and
Larry Carlson at Torpoff's office.
At the meeting, Giardono told Carlson that he under-
stood that Respondent had some new semitractors and
trailers which were being driven by nonunion drivers
and that other union business agents were complaining
about nonunion drivers coming onto union jobs. Giar-
dono said that he wanted the drivers of the semi-tractors
to carry Teamsters cards and that as long as they were
working full-time he would not object if roofers occa-
sionally drove the trucks. Giardono also said that he was
not concerned about the smaller trucks which were tra-
ditionally driven by roofers. There was some discussion
of the possibility of having those who drove the semi-
tractors carry dual cards so that they would be able to
perform nondriving duties, and Giardono said that there
were such arrangements with other employers. Giardono
said that the men with the Teamsters cards should be
paid the wages, pension, and health and welfare benefits
provided by the Teamsters agreement with NIBCA.
Giardono gave Carlson one or two checkoff authoriza-
tion cards for employees to sign.
To this extent the testimony of Giardono and Carlson
as to the February 14 meeting is in basic agreement.
However, their testimony is in conflict as to further dis-
cussion of the Teamsters contract. According to Giar-
dono, he initially said that he would give Carlson a copy
of the contract, but then asked Torpoff to give Carlson
one. Giardono testified that he said he wanted Carlson to
sign the contract and that Torpoff replied there was no
need for Carlson to sign an agreement since Respondent
was a NIBCA member. Carlson testified that Giardono
specifically stated that he did not expect Carlson to sign
a contract. Torpoff testified he did not remember that
there was any discussion about whether Carlson should
sign a contract or that he told Giardono that it would
not be necessary for Respondent to sign a contract. With
respect to the latter, Torpoff testified that it would have
been highly unusual and nearly impossible for him to
have made such a remark because NIBCA did not have
While it is not clear from the record, it appears that the discussion of
pension and insurance benefits was in anticipation of eventual full-time
employment of Buser and Wilmarth by Respondent.
the written consent from Carlson, required by its bylaws,
to bind Carlson to the NIBCA contract with the Union.
While Torpoff's overall recollection of the February 14
meeting was less complete than that of Giardono and
Carlson, I am persuaded that his testimony as to discus-
sion of signing a contract is more accurate than that of
Giardono or Carlson. With respect to Giardono, his testi-
mony makes it clear that at the time of the meeting he
was under the erroneous impression that Respondent was
bound by the NIBCA contract. In this circumstance, I
find it more likely that he did not ask Carlson to sign the
contract because he did not believe it necessary to do so
than that Torpoff, who knew the requirements of the
bylaws, erroneously assured Giardono that it was not
necessary for Carlson to sign. At the same time, with re-
spect to Carlson, I find it highly likely that Giardono
disclaimed any expectation of having a signed agreement.
I conclude that Torpoff did not remember discussion
about signing a contract because no such discussion oc-
curred and that the recollections of Giardono and Carl-
son were colored by their separate impressions of what
the result of the meeting had been and the substantial
passage of time before the events of the meeting became
an issue.
Following the February 14 meeting, Larry Carlson re-
ported to Respondent's president, Ed Carlson, what had
happened and they agreed to ask Buser to join the
Union. Carlson then asked Buser if he had any objections
to becoming a member of Teamsters and offered to pay
Buser's initiation fee and 3 months' dues if Buser would
pay his own dues thereafter. Buser agreed to do so.
About a month later, Giardono called Larry Carlson to
complain that Wilmarth was also driving and was not a
member of the Teamsters. Carlson then asked Wilmarth
if he would be willing to join the Teamsters, making the
same offer to pay his initiation fee and first 3 months'
dues. Wilmarth also agreed to join. Although Wilmarth,
and possibly Buser, signed union authorization cards at
the time Carlson asked them to join the Union, Respond-
ent did not check off dues on their behalf, but both main-
tained their Teamster membership through direct pay-
ment of dues to the Teamsters following their first 3
months of membership.s
In March 1978, Respondent began to remit pension
and health and welfare contributions for Buser to the
Construction Industry Funds showing him as a member
of the Union. In April, Respondent began to remit such
contributions on Wilmarth's behalf. At around the same
time Buser and Wilmarth stopped working for Hartwig
and became full-time employees of Respondent. As Carl-
son had earlier indicated to Buser, Respondent paid them
at the same hourly rate as Hartwig. That rate differed
from the rate required by the union contract.
3. The negotiation of a new area agreement
The area agreement to which the Teamsters was a
party was scheduled to expire in July 1978. On April 10,
2 Buser testified that he signed some papers for the Teamsters at Re-
spondent's request but did not remember what they were. Wilmarth was
asked to sign a checkoff form and did so. and it seems likely that Buser
also did.
-------- - --
395CARLSON ROOFING CO., INC.
1978, Giardono sent a form letter to Respondent giving
60 days' notice of the Union's desire to negotiate changes
in the agreement. On April 13, Carlson spoke to Torpoff
and wrote NIBCA to go on record that it did not repre-
sent Respondent in negotiations, but Respondent did not
reply directly to Giardono's letter. On July 5, Giardono
sent a form letter to Respondent announcing the wage
and benefit increases of the new area agreement which
had been reached and enclosing a Memorandum of
Agreement for Respondent's signature. Respondent did
not sign the agreement and did not reply to Giardono's
letter.
4. The Peterson grievance and subsequent events
In 1979, Respondent purchased an additional brown
and white double-axle semitractor. Until its purchase,
Buser and Wilmarth had alternated driving the red and
white semitractor but thereafter each was regularly as-
signed one of the two newer semitractors to drive.
In March 1979, Giardono was informed that Ralph Pe-
terson, a nonunion employee of Respondent, was driving
trucks for Respondent. Giardono filed a grievance with
Respondent but received no response. He then called
Torpoff and requested a grievance meeting as provided
in the grievance procedure of the area agreement. When
no meeting was scheduled, Giardono told Torpoff that
he would present the grievance to the Joint Area Com-
mittee, but that he would attempt to settle the grievance
directly if Torpoff was able to set up a meeting with Re-
spondent. On March 27, 2 days before the next sched-
uled Joint Area Committee meeting, Giardono received
a copy of a letter from Respondent's attorney stating that
Respondent had no contract with the Teamsters and
therefore would not attend the committee meeting.
On April 2, the Committee decided the grievance in
favor of the Union and awarded 3 days' backpay as a
remedy. Shortly thereafter, Giardono told Torpoff that if
Respondent did not comply with the decision, the Union
would strike. Torpoff asked Giardono to wait until Re-
spondent received the decision and offered a meeting
with Respondent.
On April 5, 1979, Giardono, Larry Carlson, Respond-
ent's office manager, Jarvi, and Roofers business agent,
Schultz, met. After some discussion of Peterson's work,
Giardono stated he wanted Carlson to pay the amount
awarded by the Joint Area Committee. Carlson respond-
ed that he was not obligated to pay since Respondent
never had a collective-bargaining contract with the
Union. Giardono replied that Respondent was bound to
the agreement with the Union because it was a member
of NIBCA. Carlson denied that Respondent had entered
into an agreement with the Union at the February 1978
meeting and said that Giardono had only asked to have
the two men become Teamsters and receive benefits.
Torpoff arrived at the meeting after it started and, when
questioned by Giardono, denied that he had told Giar-
dono at the February 1978 meeting that Respondent was
bound to the area agreement because of its membership
in NIBCA. Giardono threatened to strike Respondent if
the award was not paid, and Carlson suggested they con-
tinue the discussion and seek another means of resolving
the disagreement. Carlson expressed concern that the
Union was taking over roofing companies, and Giardono
told Carlson that the Union did not want to take over
Respondent's operation but only wanted to represent the
full-time semitractor drivers. Giardono offered to put his
claim in writing. At the close of the meeting Giardono
said that he was going on vacation and that if the award
was not paid by his return he would strike Respondent.
That evening, Carlson called Giardono at his home
and asked how they could settle the dispute. Giardono
responded that the only settlement he would consider
would be payment of the grievance and a signed con-
tract. Giardono again said that he would strike and
added that he would file charges with the National
Labor Relations Board.
Sometime after Giardono returned from his vacation,
as a consequence of a conversation between Carlson and
Schultz, Giardono prepared a proposed contract adden-
dum providing that Respondent recognize the Union as
the exclusive representative of all "six-wheel dump, semi-
dump and flat bed truck drivers employed by the Em-
ployer, but excluding outside and inside sales persons,
office clerical employees, guards, supervisors, and work
traditionally performed by members of Roofers Local
Union No. 6, except as provided above." Schultz deliv-
ered the addendum to Carlson who refused to sign it.
On June 20, 1979, the Union's attorney made a written
demand for bargaining for Respondent's "Drivers of all
six-wheel dump and semi-dump trucks and flat bed
trucks but excluding outside and inside sales persons,
guards, office clerical employees, supervisors and other
work traditionally performed by members of Roofers
Local Union No. 6." On July 2, Respondent's attorney
replied that Respondent doubted the appropriateness of
the unit requested and the Union's claim to represent a
majority of those in any appropriate unit. Thereafter, the
Union filed the charge in this case.
B. Concluding Findings
The General Counsel contends that Respondent's full-
time semitractor drivers constitute an appropriate unit
for collective bargaining and that on February 14, 1978,
Respondent voluntarily recognized the Union and en-
tered into a prehire agreement with the Union, giving
rise to a continuing obligation for Respondent to bargain
with the Union after Buser and Wilmarth became mem-
bers of the Union. Respondent contests both the appro-
priateness of the unit and the claims that it recognized
the Union and entered into an agreement with it.
Assuming that a unit of Respondent's full-time semi-
tractor drivers is appropriate, I find that the evidence
does not establish that Respondent entered into a prehire
agreement with Respondent. I have found above that at
the February 14, 1978, meeting, Giardono mentioned
wages, pension, and health and welfare benefits, but did
not ask Respondent to sign the area agreement, apparent-
ly in the mistaken belief that Respondent was bound by
it through its membership in NIBCA. Carlson neither
said nor did anything at the meeting to indicate that Re-
spondent agreed to be bound by the area agreement.
After the meeting, as Giardono had requested, Carlson
asked Buser and Wilmarth to join the Union, and Re-
FI CO., INC.
395
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent paid their initiation fees and 3-month dues. Re-
spondent also made health and welfare and pension con-
tributions for them, corresponding to those required by
the area agreement, but Respondent did not pay them
contract wages, nor did it check off dues in their behalf.
Respondent never replied to the Union's request for bar-
gaining for a new agreement in April 1978, only a few
months after the purported recognition, and it did not
sign and return the new memorandum agreement sent to
it by Giardono in July. Whatever affirmative indication
of Respondent's intention to become a party to the
agreement with the Union may be drawn from its re-
cruitment of Buser and Wilmarth to join the Union and
its contributions to the Construction Industry Funds, the
other factors summarized above give a contrary indica-
tion. Respondent did not engage in a course of conduct
designed to lead the Union to believe that it had become
a party to the area agreement. Rather, if anything, it was
Giardono's preexisting belief as to the consequences of
NIBCA membership which led him to assume that Re-
spondent was bound by the area agreement and to stop
short of asking Respondent to become a party to that
agreement. In these circumstances I find that Respondent
was not a party to or bound by the area agreement.3
The General Counsel contends in the alternative that
Respondent was obligated to bargain with the Union fol-
lowing its June 20, 1979, formal request to bargain be-
cause Respondent had direct personal knowledge that its
two full-time drivers executed checkoff authorization
forms and were members of the Union, relying on
Nation-Wide Plastics Co. Inc., 197 NLRB 996 (1972), and
E. S. Merriman & Sons, etc., 219 NLRB 972 (1975). As
set forth, the evidence shows that Buser and Wilmarth
became members of the Union when Larry Carlson ap-
proached them and asked them to do so, offering at the
same time to pay their initiation fees and 3-month dues.
At least one of them also signed a checkoff authoriza-
tion. Apart from any other consideration, in the absence
3 Cf. J D. Industrial Insulation Company, 234 NLRB 163, 167-168
(1978), enfd. as modified 615 F.2d 1289 (10th Cir. 1980); Marquis Elevator
Company, Inc., 217 NLRB 461, 465-466 (1975).
of any prehire union-security agreement between the
Union and Respondent, the manner in which the check-
off authorizations and memberships were obtained pre-
cludes reliance upon them as evidence of the Union's
majority.4
Accordingly, I conclude that Respondent was not ob-
ligated to bargain with the Union at the time of the
Union's demands for bargaining in the spring of 1979 and
shall recommend that the allegations of the complaint be
dismissed.
CONCLUSIONS OF LAW
1. Carlson Roofing Co., Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. General Chauffeurs, Helpers and Salesdrivers Local
Union No. 325, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has failed to establish that Re-
spondent has engaged in unfair labor practices as alleged
in the complaint.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I hereby issue the following rec-
ommended:
ORDER5
The complaint is dismissed in its entirety.
4 Central Casket Co., 225 NLRB 362, 400-401 (1976). Sopps, Inc., 175
NLRB 296 (1969).
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 find-
ings, 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.