D & E Roofing, L.L.C.,

National Labor Relations Board - Board Decisions

Apr 17, 2001

333 N.L.R.B. 124 (N.L.R.B. 2001)

333 NLRB No. 124
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can be
included in the bound volumes.
D & E Roofing, L.L.C. and United Union of Roofers,
Waterproofers and Allied Workers, Local 135,
AFL–CIO. Case 28–CA–16879
April 17, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND WALSH
Upon a charge filed by the Union on November 22,
2000, the Acting General Counsel of the National Labor
Relations Board issued a complaint on January 30, 2001,
against D & E Roofing, L.L.C., the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the National
Labor Relations Act. Although properly served copies of
the charge and complaint, the Respondent failed to file an
answer.
On March 12, 2001, the Acting General Counsel filed a
Motion for Summary Judgment with the Board. On
March 15, 2001, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service, all
the allegations in the complaint will be considered admit-
ted. Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the Region, by letter
dated February 22, 2001, notified the Respondent that
unless an answer was received by March 2, 2001, a Mo-
tion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting Ge neral
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a limited liability
corporation, with an office and place of business in Phoe-
nix, Arizona, has been engaged in business as a roofing
contractor in the commercial construction industry. Dur-
ing the 12-month period ending November 22, 2000, the
Respondent, in conducting its business operations, pur-
chased and received at the Respondent’s facility goods
valued in excess of $50,000 directly from points outside
the State of Arizona. We find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Tom Edwards held the position of
manager and has been a supervisor of the Respondent
within the meaning of Section 2(11) of the Act and an
agent of the Respondent within the meaning of Section
2(13) of the Act. At all material times, Fran Edwards held
the position of bookkeeper and has been an agent of the
Respondent within the meaning of Section 2(13) of the
Act.
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full and part-time roofing employees including
foremen, journeymen I and journeymen II, apprentices
and pre-apprentices employed by the Respondent at its
place of business and jobsites located within the State of
Arizona within the counties of Apache, Gila, Coconino,
Maricopa, Mohave, Navajo, Pinal, Yavapai, and Yuma,
and the Navajo Reservation in its entirety, excluding
Cononcito, Alamo, and Ramah; but excluding all guards
and supervisors as defined in the Act.

Since about July 13, 1999, and at all material times,
based on Section 9(a) of the Act, the Union has been the
designated exclusive collective-bargaining representative
of the unit, and since then the Union has been recognized
as the representative by the Respondent. This recognition
has been embodied in a collective-bargaining agreement
effective from July 13, 1999, to May 31, 2001 (the
Agreement).
The Agreement provides for the payment by the Re-
spondent of contributions on behalf of the unit into the
Arizona Roofers Health and Welfare Trust Fund, the Na-
tional Roofing Industry Pension Fund, and the Arizona
Roofers Apprenticeship Trust Fund (J.A.C.), and Appren-
ticeship Training Program (the Funds).
The Agreement also provides for the payment by the
Respondent of wage assignments on behalf of the unit
received from the unit as initiation fees, dues, and assess-
ments to be provided to the Union.
Since September 2000, the Respondent has failed and
refused to make monthly payments to the Funds as de-
scribed above and the Respondent has failed and refused
to provide the Union with the collected wage assignments
described above.
The above subjects relate to the wages, hours, and other
terms and conditions of employment in the unit, and are
mandatory subjects for the purposes of collective bargain-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
ing. The Respondent engaged in this conduct without
prior notice to the Union and without affording the Union
an opportunity to bargain with the Respondent with re-
spect to this conduct and the effects of this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees and has thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by failing since September 2000 to
make contractually required contributions to the Arizona
Roofers Health and Welfare Trust Fund, the National
Roofing Industry Pension Fund, and the Arizona Roofers
Apprenticeship Trust Fund (J.A.C.), and Apprenticeship
Training Program, we shall order the Respondent to make
whole its unit employees by making all such delinquent
contributions, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). In addition, the Respon-
dent shall reimburse unit employees for any expenses en-
suing from its failure to make the required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).1
Furthermore, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to remit to the Union
wage assignments that were deducted from the pay of unit
employees as provided for in the contract, we shall order
the Respondent to remit such withheld wage assignments
to the Union as required by the agreement, with interest as
prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the Re-
spondent, D & E Roofing, L.L.C., Phoenix, Arizona, its
officers, agents, successors, and assigns, shall
1. Cease and desist from

1 To the extent that an employee has made personal contributions to a
fund that were accepted by the fund in lieu of the employer’s delinquent
contributions during the period of the delinquency, the respondent will
reimburse the employee, but the amount of such reimbursement will
constitute a setoff to the amount that the respondent otherwise owes the
fund.
(a) Failing and refusing, since September 2000, to make
contractually required contributions to the Arizona Roof-
ers Health and Welfare Trust Fund, the National Roofing
Industry Pension Fund, and the Arizona Roofers Appren-
ticeship Trust Fund (J.A.C.), and Apprenticeship Training
Program, and failing and refusing to provide the Union
with the collected wage assignments.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make all contractually required contributions to the
Arizona Roofers Health and Welfare Trust Fund, the Na-
tional Roofing Industry Pension Fund, and the Arizona
Roofers Apprenticeship Trust Fund (J.A.C.), and Appren-
ticeship Training Program that have not been made since
September 2000, and provide the Union with the collected
wage assignments, as set forth in the remedy section of
this decision.
(b) Make whole the unit employees for any loss of
benefits or expenses ensuing from its failure to make the
required contributions to the funds from September 2000,
with interest, as set forth in the remedy section of this
decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Phoenix, Arizona, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since September 2000.

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
D & E ROOFING, L.L.C. 3
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. April 17, 2001

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT fail and refuse to make contractually re-
quired contributions to the Arizona Roofers Health and
Welfare Trust Fund, the National Roofing Industry Pen-
sion Fund, and the Arizona Roofers Apprenticeship Trust
Fund (J.A.C.), and Apprenticeship Training Program, and
WE WILL NOT fail and refuse to provide the Union with the
collected wage assignments.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL honor the terms of our July 13, 1999, to May
31, 2001 contract by providing the United Union of Roof-
ers, Waterproofers and Allied Workers, Local 135, AFL–
CIO, with collected wage assignments.
WE WILL honor the terms of our July 13, 1999, to May
31, 2001 contract by making all contractually required
payments to the Arizona Roofers Health and Welfare
Trust Fund, the National Roofing Industry Pension Fund,
and the Arizona Roofers Apprenticeship Trust Fund
(J.A.C.), and Apprenticeship Training Program.
WE WILL make our employees whole for any loss of
benefits or expenses ensuing from our failure to make the
contractually required payments to the above-named
funds, with interest.

D & E ROOFING, L.L.C.