D.A. Nolt, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2003

340 N.L.R.B. 1279 (N.L.R.B. 2003)

D. A. NOLT, INC. 1279
D. A. Nolt, Inc. and Local Union No. 30, United Union
of Roofers, Waterproofers and Allied Workers.
Cases 4–CA–30325–1 and 4–CA–30325–2
December 15, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 18, 2002, Administrative Law Judge Margaret
M. Kern issued the attached decision. The General Coun-
sel and the Charging Party filed exceptions and support-
ing briefs, and the Roofing Contractors Association,
amicus curiae, filed a brief in support of the General
Counsel’s and the Charging Party’s position. The Re-
spondent filed a brief in answer to the exceptions and a
brief in answer to the amicus brief. The General Counsel
and the Charging Party filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.2
The General Counsel and the Charging Party (the Un-
ion) except to the judge’s finding that the Respondent did
not violate Section 8(a)(5) and (1) of the Act when it
refused to apply the terms of a collective-bargaining
agreement negotiated by the Roofing Contractors Asso-
ciation (RCA) and the Union covering employees in the
commercial bargaining unit. The General Counsel and
the Union argue that the judge erred in finding that the
Respondent lawfully withdrew from the RCA because
the RCA and the Union had engaged in secret negotia-
tions. We find merit to the exceptions and find that the

1 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by withdrawing recognition and
refusing to bargain with the Union as the exclusive representative of the
employees in the residential bargaining unit. However, the General
Counsel argued in his brief in support of exceptions that the judge
erroneously failed to find that the Respondent’s refusal to bargain con-
cerning the residential bargaining unit occurred on March 2, 2001,
rather than on May 10, 2001, as found by the judge. We find it unnec-
essary to pass on when this violation occurred because a finding that
the refusal to bargain in the residential unit occurred earlier than May
10 would not affect the remedy for that violation. We note that the
General Counsel has not requested a monetary remedy for any unilat-
eral changes made by the Respondent in the residential unit after the
expiration of the Delaware Valley Roofing Contractors’ Association
(DVRCA) collective-bargaining agreement on April 30, 2001.
2 In accordance with this decision, we have included an amended
remedy, a new Order, and a new notice to conform to the language in
the Order.
Respondent is bound to the new multiemployer collec-
tive-bargaining agreement.3
I. BACKGROUND
The Respondent, a commercial roofing contractor in
the greater Philadelphia metropolitan area, has been sig-
natory to an agreement which binds it to contracts be-
tween the Roofing Contractors Association and the Un-
ion covering commercial roofing. The contracts termi-
nated on April 30, 2001.
In June 1999, the Respondent signed a bargaining
agent authorization (BAA) with the RCA, allowing the
RCA to negotiate a new commercial roofing contract
with the Union on behalf of the Respondent. The terms
of the BAA allowed the Respondent to terminate this
authority up until 90 days prior to the existing contract’s
expiration.
In June 2000,4 10 months before the commercial con-
tract’s expiration, Richard Harvey, executive director of
the RCA, and Tom Pedrick, vice president of the Union,
began negotiations for a successor agreement. During the
course of negotiations, union officials told Harvey that
they did not want the union membership to find out about
the negotiations.5 The union officials asked Harvey to
keep the negotiations confidential because they were
afraid that if the RCA members knew about the negotia-
tions, the employees would eventually find out as well.
Therefore, at the Union’s request, Harvey did not tell any
employer members, other than those on the RCA’s bar-
gaining committee, about the negotiations.
On July 5, the Union and the RCA reached a tentative
agreement for an 8-year contract. Harvey faxed the
agreement to the RCA bargaining committee members,
who unanimously approved it.
Having secured the bargaining committee’s approval,
Harvey sent a cover letter and ballot to the rest of the
RCA’s members on July 12, instructing them to return
the ballot by July 14. The letter stated that a tentative
contract had been agreed upon. The ballot contained
three options: “accept,” “reject,” or “withdraw” from the
RCA. The cover letter included a reproduced portion of
the original BAA, which included the statement that
members were allowed to withdraw from the RCA up to
90 days prior to contract termination, i.e., no later than
3 No exceptions were filed to the judge’s findings that (1) the rela-
tionship between the Respondent and Union is governed by Sec. 9(a) of
the Act; (2) the Respondent violated Sec. 8(a)(5) of the Act by refusing
to recognize the Union as the collective-bargaining representative of
the employees in both the commercial and residential bargaining units
of the Respondent; and (3) the Respondent violated Sec. 8(a)(5) of the
Act by refusing to bargain with the Union for both units.
4 All dates are in 2000 unless otherwise noted.
5 The record does not make clear which union official made the re-
quest to keep the negotiations confidential.
340 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
January 30, 2001. However, the text of the cover letter
specifically instructed members that if they wished to
withdraw authorization from the RCA to negotiate on its
behalf, they must do so now, and not vote “accept” or
“reject.”
According to Steven Consalvo, the Respondent’s vice
president, David Nolt initially expressed some reluctance
to sign an 8-year agreement, but had no problem with the
negotiated wage rates and ultimately indicated he would
sign the agreement. The Respondent voted to “accept.”
Before the Union’s ratification vote, the Union re-
quested from the RCA a list of contractors who had
agreed to the contract. The RCA faxed to the Union the
ballots cast in July, including the Respondent’s vote to
“accept.” On September 26, the union membership rati-
fied the contract.
From the time the Respondent received its ballot
through January 30, 2001, it gave no indication to the
RCA or to the Union that it had any intention of with-
drawing from the RCA or that it would not honor the
new contract on expiration of the current agreement. In-
deed, between October 2000 and January 2001, the Re-
spondent held numerous discussions with RCA official
Harvey concerning various matters, but there was never
any discussion about the balloting procedure or about the
Respondent’s withdrawing from the RCA. Rather, the
discussions concerned issues regarding the administra-
tion of employee benefits, the scope of work under the
residential and commercial roofing contracts, and a con-
frontation between one of Respondent’s employees and
Union Business Manager Michael McCann. These issues
were straining the relationship between the Respondent
and the Union.
On January 30, 2001, the Respondent sent a letter to
the RCA and the Union stating that, as provided for in
the BAA, it was withdrawing its authorization from the
RCA to negotiate on its behalf and consequently would
not be bound to the successor agreement.
As noted, the existing contract expired on April 30,
2001. On May 1, 2001, the Respondent did not apply the
terms of the new commercial contract to its employees,
stopped payments to the union benefit funds, and told its
employees that it was now a nonunion contractor. On
May 10, 2001, in a letter to the Union, the Respondent
stated that it was not bound to the terms of the new
commercial contract, nor was it obligated to bargain with
the Union.
The judge determined that the Respondent violated
Section 8(a)(5) of the Act by refusing to recognize and
bargain with the Union.6 The judge also concluded, how-
6 As noted above, this conclusion has not been challenged.
ever, that the Respondent’s refusal to apply the terms of
the commercial contract did not violate Section 8(a)(5) of
the Act. Citing Retail Associates, 120 NLRB 388 (1958),
and Chel LaCort, 315 NLRB 1036 fn. 5 (1994), the
judge found that the Respondent lawfully withdrew from
the RCA and was not bound to the contract negotiated by
the RCA. The judge noted that, under Retail Associates,
supra, once multiemployer bargaining begins, a member
of a multiemployer association may not withdraw absent
mutual consent or “unusual circumstances.” The judge
further noted that in Chel, the Board suggested, in dicta,
the possibility that “collusion or conspiracy” might con-
stitute “unusual circumstances” justifying an otherwise
untimely withdrawal.7 The judge found that the RCA and
the Union secretly negotiated an agreement, and that
these secret negotiations constituted “unusual circum-
stances” justifying the Respondent’s withdrawal on
January 30, 2001. The judge reasoned that because nego-
tiations were completed before the Respondent even
knew of them, the Union and the RCA had precluded the
Respondent of any opportunity to participate in the bar-
gaining process.
The judge found no significance to the fact that the
Respondent voted to “accept” rather than to “withdraw”
on its ballot. Noting that, under Retail Associates, supra,
the Respondent was bound to the outcome of the negotia-
tions absent mutual consent or “unusual circumstances,”
the judge relied on her finding of “unusual circum-
stances,” and accordingly found that the Respondent’s
withdrawal on January 31, 2001, occurred at a reasonable
time, because it was in accord with the BAA’s provision
for withdrawal. Consequently, the judge concluded that
the Respondent was not bound to the agreement negoti-
ated by the RCA, and did not violate Section 8(a)(5)
when it refused to apply its terms.
II. ANALYSIS
Contrary to the judge, we find that the Respondent did
not effectively withdraw from the RCA, and is, therefore,
bound to the contract negotiated by the RCA.
In Retail Associates, supra, 120 NLRB at 395, the
Board announced “ground rules” governing timely with-
drawal from multiemployer bargaining. Specifically, the
Board said that “[w]here actual bargaining negotiations
based on the existing multiemployer unit have begun, we
would not permit, except on mutual consent, an aban-
donment of the unit upon which each side has committed
itself to the other, absent unusual circumstances.” Id.
Subsequent cases applying this standard have found “un-
usual circumstances” where there were dire economic
consequences (such as bankruptcy or imminent plant
7 See Chel, supra at fn. 5.
D. A. NOLT, INC. 1281
shutdown) or fragmentation of the multiemployer unit. El
Cerrito Mill & Lumber Co., 316 NLRB 1005, 1005–
1006 (1995); Chel LaCort, supra; Hi-Way Billboards,
Inc., 206 NLRB 22, 23 (1973), enf. denied 500 F.2d 181
(5th Cir. 1974).
In Chel, supra, relied on by the judge, the Board found
there were no “unusual circumstances” where an em-
ployer attempted to withdraw after the multiemployer
association “fail[ed], either deliberately or otherwise, to
inform its employer-members of the start of negotia-
tions.” Id. at 1036 (emphasis added). In so finding, the
Board stated that “[w]hether and to what extent a mul-
tiemployer association communicates with its members
is an internal association matter which is properly and
readily resolved by and between the multiemployer asso-
ciation and its members.” Id. at 1036–1037. In dicta, the
Board added, “there is no evidence in this case of collu-
sion or conspiracy involving the Union. We leave to
another case to decide whether or when such evidence
would be sufficient to show ‘unusual circumstances.’”
Id. at fn. 5.
Contrary to the judge, we find that the conduct at issue
here does not constitute collusion as contemplated under
the Chel dicta, and, thus, there are no “unusual circum-
stances” present here permitting the Respondent’s other-
wise untimely withdrawal. The record clearly shows that
the effort to have secrecy in the negotiations was directed
at the Union’s membership, not at the Respondent or at
other employer-members of the RCA. Indeed, there is no
evidence of intent to deny the Respondent its withdrawal
rights by conducting “secret” negotiations, or of any
other actions that were specifically directed at the Re-
spondent. To the contrary, the record shows that the
RCA told the Respondent of the contract and gave each
of its members the option of withdrawing authorization
from the RCA. Thus, the ballot sent to the Respondent
and the other employer members demonstrates a good-
faith attempt by the RCA to allow its members to timely
withdraw if they so desired.
Concededly, the conduct of the Union and the RCA re-
sulted in a temporary denial of information to the Re-
spondent and other employer-members. However, it is
clear that neither party intended to harm the Respondent.
And, by allowing the members to subsequently with-
draw, the RCA took measures to ensure that the Respon-
dent and other employer-members would not be preju-
diced. The “collusion or conspiracy” referred to by the
Chel Board’s dictum clearly contemplates actions by the
union and the employer association that are deliberately
intended to prevent an employer from exercising its right
to withdraw. The evidence here does not establish any
such intent on the part of RCA and the Union.8 We also
find no merit to the Respondent’s argument that the
RCA’s withholding of information about the negotiations
necessarily interfered with the Respondent’s ability to
withdraw from the RCA in time to escape being bound
by the successor contract. That is the same argument that
we rejected in Chel. There, the Board specifically re-
jected the notion that “unusual circumstances” should be
extended to these situations, and held that the failure of a
multiemployer association to tell its members about ne-
gotiations is an internal matter to be resolved between
the association and its members. 315 NLRB at 1037.
Moreover, even assuming arguendo that the conduct
by the RCA and the Union constituted “unusual circum-
stances,” the Respondent by its own conduct forfeited
any right to withdraw. Instead of withdrawing from the
RCA promptly after it learned of the new agreement in
July 2000—the point at which “unusual circumstances”
became known—the Respondent approved the contract.
Not until 7 months later, after its relationship with the
Union had soured, did the Respondent decide to with-
draw. Whatever confusion the Respondent might have
felt about its ability to withdraw did not privilege its op-
portunistic attempt to enjoy the “best of two worlds”:
voting to accept the contract while assertedly preserving
its right to opt out of the agreement. Michael J. Bollin-
ger Co., 252 NLRB 406, 407 (1980), enfd. mem. 705
F.2d 444 (4th Cir. 1983).
In this sense, the Respondent’s reliance on the provi-
sion of the BAA allowing it to withdraw up to 90 days
before the expiration of the contract is misplaced, be-
cause the Respondent was obligated to announce its in-
tention to withdraw its authorization from the RCA as
soon as the “unusual circumstances” became manifest.
See Gary Jasper Enterprises, 287 NLRB 746, 747
(1987) (finding that “[the employer] acted as expedi-
tiously as possible in ‘withdrawing’ from multiemployer
bargaining 2 weeks after bargaining had commenced”).
Thus, contrary to the judge’s finding, the Respondent’s
actions, once it was informed of the negotiations, were
significant. The Respondent indicated to the Union and
the RCA that it agreed to be bound by the successor con-
tract by voting “accept” on its ballot. At no time after-
wards did the Respondent ever indicate either an inten-
tion to withdraw or a belief that it was not bound by the

8 We disagree with the dissent’s contention that collusion existed be-
cause the RCA and the Union deliberately decided that information
would be withheld from the Respondent. As noted above, there is no
evidence of an intent to harm the Respondent by their confidentiality
restrictions. Moreover, there is no evidence that the Respondent’s abil-
ity to timely withdraw was compromised by the confidentiality agree-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1282
new contract. Compare, Electrical Workers Local 952 (D
& R Electric), 275 NLRB 319, 321 (1985) (“no evidence
. . . Employer conducted itself in a manner that would
have led the [union] to believe that it intended to be
bound”).
Even if the Respondent was surprised at receiving the
ballot regarding the new contract, the record demon-
strates that the Respondent’s vote reflected careful delib-
eration rather than forced decision making. As noted
above, the record shows that the Respondent weighed the
favorable terms in the contract against the less desirable
fact that the duration was for 8 years, and ultimately de-
cided to vote to accept the contract. Indeed, the Respon-
dent never informed the RCA or the Union that the nego-
tiated agreement had placed the Respondent in a difficult
position, and Nolt admitted that he had read the ballot
and cover letter several times before voting to “accept”
the new agreement. Nolt also admitted that he knew the
Union wanted to know, and would be told, his vote be-
fore it conducted its ratification vote among the union
members. Thus, far from complaining, the Respondent
considered the advantages of accepting the contract and
cast its ballot accordingly.
We further note that “multiemployer bargaining is a
voluntary arrangement which constitutes a vital factor in
the effectuation of national labor policy promoting peace
through collective bargaining.” El Cerrito, supra at
1005–1006. We find nothing in the record before us that
warrants disrupting the voluntary arrangement of the
parties. In accordance with the Board’s decision in Chel,
we find that by voting, after careful consideration, to
“accept” the new contract, the Respondent was bound;
thereafter, its attempted withdrawal, a full 7 months later,
was untimely.9
Accordingly, based on the foregoing, we find that the
Respondent was bound to the successor agreement nego-
tiated by the RCA, and that it violated Section 8(a)(5)
when it refused to apply the terms of that agreement to
unit employees.10

9 We find Acropolis Painting, 272 NLRB 150 (1984), relied on by
our dissenting colleague, entirely inapposite in this case. In Acropolis,
the Board found that the respondent employers’ withdrawal from mul-
tiemployer bargaining was lawful because language in the collective-
bargaining agreement between the employer association and the union
constituted mutual consent to the withdrawal. Id. at 156–157. There is
no similar “consent” language in the relevant collective-bargaining
agreement in this case. The withdrawal language in the BAA, on the
other hand, was part of an agreement between the Respondent and the
RCA. The Union was not a party to it, and, thus, none of its language
represented consent by the Union.
10 In light of our finding that the Respondent was bound by the
2001–2009 successor multiemployer agreement, we find it unnecessary
to consider the General Counsel’s alternative argument that the Re-
spondent should be ordered to reinstate the terms of the expired 1997–
AMENDED 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) by withdrawing recognition from the Union as
the exclusive collective-bargaining representative of its
employees in the commercial and residential units, we
shall order the Respondent to recognize the Union as the
exclusive representative of the employees in both units.
As to the residential unit, we shall order the Respondent,
on request of the Union, to bargain collectively and in
good faith with the Union concerning terms and condi-
tions of employment of unit employees and, if an under-
standing is reached, to embody it in a signed agreement.
As to the commercial unit, having found that the Re-
spondent has violated Section 8(a)(5) and (1) by failing
and refusing to comply, since May 1, 2001, with the
terms of the 2001–2009 commercial roofing collective-
bargaining agreement, we shall order the Respondent to
honor the terms of the 2001–2009 commercial roofing
collective-bargaining agreement. We shall also order the
Respondent to make whole its employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s failure to honor the terms of
the 2001–2009 commercial roofing contract. In addition,
we shall order the Respondent to make whole its em-
ployees by making any contractually required fringe
benefit fund contributions that have not been made on
behalf of employees since May 1, 2001, including any
additional amounts applicable to such delinquent pay-
ments in accordance with Merryweather Optical Co.,
240 NLRB 1312, 1316 (1979).11 Further, we shall require
the Respondent to reimburse its employees for any ex-
penses ensuing from its failure to make the required con-
tributions since May 1, 2001, as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981). All payments to unit em-
ployees shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.

2001 multiemployer agreement in the commercial unit (and make those
employees whole for its failure to abide by those terms) while it bar-
gains with the Union for a new contract. As set forth below, the Re-
spondent shall be ordered to abide by the terms of the 2001–2009 suc-
cessor agreement in the commercial unit, and to make those employees
whole for the failure to abide by the terms of the successor agreement.
11 To the extent that an employee has made personal contributions to
a benefit or other fund that has been accepted by the fund in lieu of the
Respondent’s delinquent contributions during the period of the delin-
quency, the Respondent will reimburse the employee, but the amount of
such reimbursement will constitute a setoff to the amount that the Re-
spondent otherwise owes the fund.
D. A. NOLT, INC. 1283
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, D. A. Nolt, Inc., Berlin, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
its employees in the following appropriate units:
Residential unit: All journeymen roofers, helpers,
foremen and all employees performing residential roof-
ing, residential re-roofing, and slate, tile and shingle
work on any job or project within the jurisdiction of the
Union; excluding office clerical personnel, principals,
guards and supervisors as defined in the Act.
Commercial unit: All journeymen roofers, apprentices
and foremen and all employees performing commercial
roofing work within the jurisdiction of the Union.
(b) Failing and refusing to comply with the terms of
the 2001–2009 commercial roofing collective-bargaining
agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the employees in the above-
described residential and commercial units.
(b) On request, bargain with the Union as the exclusive
representative of its employees in the residential bargain-
ing unit, set forth above, concerning terms and conditions
of employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(c) Honor the terms of the 2001–2009 commercial
roofing agreement.
(d) Make whole the commercial unit employees for
any loss of earnings and other benefits they may have
suffered as a result of its failure and refusal to comply
with the 2001–2009 commercial roofing collective-
bargaining agreement since May 1, 2001, with interest,
as set forth in the amended remedy section of this deci-
sion.
(e) Make all contractually required benefit fund contri-
butions, if any, that have not been made on behalf of
commercial unit employees since May 1, 2001, and re-
imburse commercial unit employees for any expenses
ensuing from its failure and refusal to make the required
payments, in the manner set forth in the amended remedy
section of this decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Berlin, New Jersey, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 1, 2001.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN BATTISTA, dissenting.
The judge found that the Union and the Roofing Con-
tractors Association (RCA) engaged in secret negotia-
tions, and that these facts constituted “unusual circum-
stances” which justified the Respondent’s withdrawal
from the RCA. Contrary to the judge, my colleagues find
no unusual circumstances because, in their view, there
was no collusion between RCA and the Union. I agree
with the judge that there were “unusual circumstances”
justifying a withdrawal from the RCA.
In my view, the Retail Associates rule (no withdrawal
from multiemployer bargaining after negotiations have
begun1) should not operate to preclude withdrawal

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 120 NLRB 388 (1958).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
where, as here, the employer association and the Union
have begun early negotiations and have deliberately de-
cided to keep those early negotiations secret from the
employer-members.2 That conduct is collusive. In my
view, such collusion privileges an untimely withdrawal
from multiemployer bargaining.3
My colleagues say that the Union and the employer as-
sociation did not deliberately intend to prevent the Re-
spondent from withdrawing from the association. How-
ever, they did deliberately keep the Respondent in the
dark about the start of negotiations and, under the Retail
Associates rule, this interfered with the Respondent’s
right to withdraw from the association prior to the start of
negotiations.
The record clearly establishes collusion. The evidence
shows that, 10 months before the expiration of the con-
tract, the RCA and the Union met secretly to negotiate a
new contract. At the request of the Union, the RCA
agreed to deliberately withhold this knowledge from its
(RCA’s) members, including the Respondent.
On July 12, 2000,4 after the RCA and the Union
reached an agreement on terms of a new contract, they
informed the Respondent and other employer-members
about the negotiations. A ballot was sent to all members
including the Respondent. The choices on the ballot were
“accept,” “reject,” or “withdraw.” The cover letter ac-
companying the ballot included a provision stating that
each employer could withdraw from the RCA until 90
days before the present contract’s expiration, i.e., until
January 30, 2001.5 However, the letter also stated, incon-
sistently, that if the employer wished to withdraw from
the RCA it must do so immediately. The Respondent
voted to “accept.” It is not clear that what the Respon-
dent intended when it voted to “accept” the 8-year con-
tract. The option of “acceptance” is confusing when it is
coupled with a right to withdraw on January 30 of the
next year. In any event, the confusion was caused by the
drafters of the letter.
On January 30, 2001, pursuant to the instructions set
forth in the cover letter to the ballot, and within the time
period specified in the BAA, the Respondent withdrew
from the RCA.
As explained above, I believe that the Respondent was
free to withdraw from the association, even after negotia-
tions had begun. This was so for two reasons. First,

2 My colleagues say that the intention was to keep the negotiations
secret from the Union’s membership. However, to that end, the Union
and the association vowed to keep the negotiations secret from the
employer-members as well.
3 See Chel LaCort, 315 NLRB 1036 fn. 5 (1994).
4 All dates are in 2000, except where noted.
5 This was consistent with the bargaining agent authorization (BAA)
originally signed by the Respondent.
those negotiations were early and were deliberately kept
secret from the Respondent. Second, the BAA provided
that the Respondent could withdraw until January 30,
2001. Where parties have set a date for withdrawal, that
date governs, even if early negotiations have begun. See
Acropolis Painting, 272 NLRB 150 (1984).6
Of course, an employer who could timely withdraw
may nonetheless be bound to multiemployer bargaining
if, after learning of the secret negotiations, he voluntarily
chooses to stay in the association. In the instant case, it
is argued that the Respondent chose on July 18 to stay in
the association. However, the letter to the Respondent
was confusing. Indeed, it was internally inconsistent. It
said that a withdrawal could be effectuated at any time
prior to January 30, 2001. This was a reaffirmation of
the original BAA. The letter also said that withdrawal
had to be done immediately.
Where, as here, the association and the union have
concealed early negotiations from an employer, I believe
that they can bind the employer only by “coming clean,”
i.e., by informing the number of those negotiations and
then offering a clear and unambiguous choice to stay in
the association or withdraw. In the instant case, the
choice was confusing and internally inconsistent. Ac-
cordingly, the Respondent could opt to withdraw accord-
ing to the terms of the original BAA. The Respondent
did so on January 30.7 Accordingly, it was no longer a
part of the RCA and was not bound to the RCA-Union
contract.8
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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
6 My colleagues seek to distinguish Acropolis on the ground that the
BAA was between the Respondent and the RCA, as distinguished from
an agreement between the Union and RCA. That is, the Union here was
not a party to the BAA. However, the significant point is that the RCA
and the Union colluded to keep RCA members in the dark, and this fact
operated to prevent the Respondent from withdrawing from the RCA at
the Retail Associates time, i.e., prior to the start of multiemployer nego-
tiations.
7 The Respondent waited until then because that was an appropriate
date for withdrawal under the BAA.
8 See Acropolis Painting, supra.
D. A. NOLT, INC. 1285
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to recognize and bargain with Lo-
cal Union No. 30, United Union of Roofers, Waterproof-
ers and Allied Workers as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate units:

Residential unit: All journeymen roofers, helpers,
foremen and all employees performing residential roof-
ing, residential re-roofing, and slate, tile and shingle
work on any job or project within the jurisdiction of the
Union; excluding office clerical personnel, principals,
guards and supervisors as defined in the Act.

Commercial unit: All journeymen roofers, apprentices,
and foremen and all employees performing commercial
roofing work within the jurisdiction of the Union.

WE WILL NOT fail and refuse to comply with the terms
of the 2001–2009 commercial roofing collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under Section 7 of the Act.
WE WILL recognize the Union as the exclusive collec-
tive-bargaining representative of the employees in the
above-described units.
WE WILL on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the resi-
dential bargaining unit, described above.
WE WILL honor the terms of the 2001–2009 commer-
cial roofing collective-bargaining agreement.
WE WILL make whole the commercial unit employees
for any loss of earnings and other benefits they may have
suffered as a result of our refusal to comply with the
commercial roofing collective-bargaining agreement
since May 1, 2001, with interest.
WE WILL make all contractually required benefit fund
contributions, if any, that have not been made on behalf
of commercial unit employees since May 1, 2001, and
reimburse unit employees for any expenses ensuing from
our failure to make the required payments, with interest.

D. A. NOLT, INC.

William Slack, Esq., for the General Counsel.
Marc Furman, Esq. and Thomas C. Zipfel, Esq., for the Re-
spondent.
Laurence M. Goodman, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in Philadelphia, Pennsylvania, on January
23 and 24, 2002.1 The complaint, which issued on August 9,
2001, was based upon unfair labor practice charges filed on
May 2, 2001, by Local Union No. 30, United Union of Roofers,
Waterproofers and Allied Workers (the Union or Local 30)
against D. A. Nolt, Inc. (Respondent). A timely answer was
filed. The General Counsel alleges that the Union is the 9(a)
representative of two units of employees employed by Respon-
dent. With respect to the unit known as the residential unit, it is
alleged that since February 27, 2001, Respondent has failed to
meet and bargain for a successor collective-bargaining agree-
ment, and that on May 10, 2001, Respondent unlawfully with-
drew recognition from the Union. With respect to the unit
known as the commercial unit, it is alleged that on April 30,
2001, Respondent unlawfully withdrew recognition from the
Union and since that date has refused to comply with the terms
of a collective-bargaining agreement negotiated between the
Union and a multiemployer association of which Respondent is
a member. It is the General Counsel’s position that Respon-
dent’s withdrawal from the association was untimely.
Respondent contends that its relationship with the Union in
both units is an 8(f) relationship, not a 9(a) relationship. With
respect to the residential unit, Respondent takes the position
that upon the expiration of the collective-bargaining agreement,
it was free to withdraw recognition from the Union and was
under no obligation to negotiate a successor agreement. If,
however, it is determined that the relationship is a 9(a) relation-
ship, Respondent advances two alternative arguments. The first
is that it never actually refused to bargain with the Union, and
second, even if a refusal-to-bargain violation is found, a bar-
gaining order remedy may not issue because there were no
employees in the bargaining unit after April 30, 2001. With
respect to the commercial unit, Respondent contends that its
withdrawal from the association, after bargaining for a succes-
sor agreement had commenced, was justified by unusual cir-
cumstances. Specifically, Respondent asserts that the Union
and the association conspired and colluded to conceal the fact
that negotiations were taking place in order to prevent Respon-
dent from withdrawing from the association.
Procedural Issue
At the commencement of the hearing, Respondent’s counsel
made application that these proceedings be deferred pending an
investigation into the Regional Director’s earlier dismissal of a
decertification petition. The facts are as follows: On May 23,
2001, Petitioner William Morgey filed a decertification petition

1 The General Counsel’s unopposed motion to correct the transcript,
dated March 12, 2002, is granted and received in evidence as GC Exh.
61.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
involving employees of Respondent in Case 4–RD–1909. It is
not clear from the record whether the petition was filed for the
residential unit or the commercial unit. A hearing was held on
June 8, 2001, at which the Petitioner was represented by coun-
sel. On August 10, 2001, the Regional Director for Region 4,
conditionally dismissed the petition pending the outcome of the
unfair labor practice charges underlying the complaint in this
case. That determination was appealed and the Board denied
review on September 13, 2001.
Respondent’s counsel represented that on January 22, 2002,
the day before the opening of the hearing in this case, it was
learned that there had been an earlier attempt by employees of
Respondent to file a decertification petition, in late March or
early April. According to counsel, these employees were in-
formed by a member of the regional staff that the petition was
untimely as it was within the 60-day period prior to the expira-
tion of the collective-bargaining agreement. This information
was in error, according to Respondent, because the then extant
collective-bargaining agreement was a 4-year agreement, and
did not serve to bar the filing of the petition at that time. The
General Counsel acknowledged that Respondent’s counsel had
brought this matter to his attention the day before the hearing in
this case, but had not yet had an opportunity to fully investigate
the matter.
Respondent requested that these proceedings be deferred
pending further examination of this issue by the Regional Di-
rector, and pending a request of the Board to reconsider its
denial to review the dismissal of the petition. I declined to defer
these proceedings. Respondent further requested that I not ren-
der a decision in this case until such time as the Board ruled on
the prospective appeal. I denied that application as well. In its
brief, Respondent represents that it has filed a request for re-
view of this matter with the Regional Director.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in commercial, industrial, and resi-
dential roof repair and installation. It is agreed that Respondent
is an employer engaged primarily in the building and construc-
tion industry within the meaning of Section 8(f). David Nolt,
president, incorporated the business in 1990. Prior to that time,
Nolt was a journeyman roofer and a member of the Union for
10 years. At the time of the hearing, Respondent employed
between 20 and 30 roofers.
B. The Residential Unit
1. The facts
The Delaware Valley Roofing Contractors’ Association
(DVRCA) and the Union have been party to a series of collec-
tive-bargaining agreements, including agreements effective
July 1, 1994, to April 30, 1997 (1994–1997 DVRCA agree-
ment), May 1, 1997, to April 30, 2001 (1997–2001 DVRCA
agreement), and May 1, 2001, to April 30, 2005 (2001–2005
DVRCA agreement). These agreements cover residential work
which is defined as roofing work done on residential premises,
and shingle, slate, and tile roofing done on either commercial or
residential premises. Historically, negotiations are conducted
between the Union and the DVRCA and after an agreement is
reached, copies of the agreement are sent to independent em-
ployers for their acceptance and execution. At the time of the
hearing, there were approximately 12 employer-members of the
DVRCA and approximately 30 signatories to the DVRCA
agreements.
Respondent has never been a member of the DVRCA.2 On
October 6, 1994, Nolt signed an assent to be bound to the terms
of the 1994–1997 DVRCA agreement, and on August 1, 1997,
he signed an assent to be bound to the 1997–2001 agreement.
Respondent abided by the terms of those agreements through
April 30, 2001.
In article II of both DVRCA agreements executed by Re-
spondent, the Union was recognized as the sole and exclusive
bargaining representative in the following unit:

All journeymen roofers, helpers, foremen and all employees
performing residential roofing, residential re-roofing, and
slate, tile and shingle work on any job or project within the ju-
risdiction of the Union; excluding office clerical personnel,
principals, guards and supervisors as defined in the Act.

In both agreements, the following language also appeared in
article II:

Inasmuch as the Union has submitted proof, and the Associa-
tion and Employer is satisfied, that the Union represents a ma-
jority of its employees in the bargaining unit described herein,
the Employer recognizes the Union as the exclusive collective
bargaining agent for all employees within that bargaining unit,
on all present and future job sites within the jurisdiction of the
Union, unless and until such time as the Union loses its status
as the employees exclusive representative as the result of an
NLRB election.

On February 27, 2001, the Union sent a letter to Respondent
terminating the 1997–2001 DVRCA agreement upon its expira-
tion, and requesting Respondent negotiate a successor agree-
ment. There was no response from Respondent. On April 30,
2001, Michael McCann, the Union’s business manager, for-
warded to Respondent a copy of the just negotiated 2001–2005

2 On January 30, 2001, Nolt sent a letter to John Biasini, president of
the DVRCA, advising him that Respondent was resigning its member-
ship in the association and terminating DVRCA’s bargaining authority
on its behalf. It is not disputed that Respondent was never a member of
the DVRCA and that Nolt was under the misapprehension that Respon-
dent was a member when he sent this letter.
D. A. NOLT, INC. 1287
DVRCA agreement. McCann wrote, “If this agreement meets
with your approval, please execute the enclosed agreement and
assent page and return it to me at the below address. If you
have any questions, or are in need of a copy of your original
agreement, please do not hesitate to contact me.” Respondent
did not respond to either letter.
As previously noted, Respondent abided by the terms of the
1997–2001 DVRCA agreement through April 30, 2001, but not
thereafter. By letter dated May 7, 2001, McCann demanded
Respondent reinstate the terms of the agreement and agree to
negotiate a successor agreement. In a letter dated May 10,
2001, counsel for Respondent advised the Union that since the
bargaining relationship between Respondent and the Union was
pursuant to Section 8(f), Respondent was free to repudiate the
collective-bargaining agreement upon expiration, and was un-
der no obligation to bargain with the Union for a successor
agreement.
The evidence shows that with the exception of 1 month, Re-
spondent made uninterrupted monthly payments to the Union’s
benefit funds from February 1995 through May 2001.3 Respon-
dent also reported the number employees who performed resi-
dential work and their hours. The figures for 2001 show that in
January, 18 employees performed 947.5 hours of residential
work; in February, 14 employees performed 1,087.5 hours; in
March, 14 employees performed 1,420.5 hours; and in April, 15
employees performed 2001.25 hours. Nolt admitted under
cross-examination that there was no change in his business after
May 1, 2001. He also admitted employees continued to perform
shingle, slate, and tile work after April 30, 2001, and that the
work they performed would have fallen under the 1997–2001
DVRCA agreement.
2. Analysis
Respondent is an employer engaged in the construction in-
dustry and in the absence of evidence to the contrary, the Board
presumes that the parties intended their relationship to be gov-
erned by Section 8(f), rather than Section 9(a). The burden of
proving the existence of a 9(a) relationship is on the party as-
serting that such a relationship exists. John Deklewa & Sons,
282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S.
889 (1988); H. Y. Floors & Gameline Painting, 331 NLRB
304, 305 (2000). A 9(a) relationship may be established in one
of two ways, either through a Board-certified election, or
through an employer’s voluntary grant of recognition. J & R
Tile, 291 NLRB 1034, 1036 fn. 11 (1988). To satisfy the volun-
tary recognition option, the party asserting the 9(a) relationship
must unequivocally show that (1) the union requested recogni-
tion as the majority or 9(a) bargaining representative of the unit
employees; (2) the employer recognized the union as the major-
ity or 9(a) bargaining representative; and (3) the employer’s
recognition was based on the union’s having shown, or having
offered to show, evidence of its majority support. These re-
quirements may be established by the written agreement of the
parties. Staunton Fuel & Material, 335 NLRB 717, 721 (2001).

3 It is agreed that the payment in May 2001 was for work performed
through April 30, 2001.
It is not necessary for the written agreement to refer explicitly
to Section 9(a), provided the agreement conclusively notifies
the parties that a 9(a) relationship is intended. Nova Plumbing,
Inc., 336 NLRB 633, 637 (2001).
In this case, it is the General Counsel who asserts the exis-
tence of a 9(a) relationship in the residential unit, and, thus,
bears the burden of proof. The General Counsel submits that
the language of article II in the two DVRCA agreements signed
by Respondent satisfy the Staunton Fuel test of 9(a) status. I
agree.
The first prong of the Staunton Fuel test is whether the lan-
guage unequivocally indicates that the union requested recogni-
tion as the majority or 9(a) representative. Article II states that
the Union submitted proof that it represented a majority of unit
employees, the employer was satisfied with that proof, and
recognition was extended. It can fairly be implied from these
words that the Union demanded recognition as the majority
representative, and I find the first prong is met.
The second prong is whether the language demonstrates that
the employer recognized the union as the majority or a 9(a)
representative. Although there is express language that the em-
ployer recognized the union, the answer to the question of
whether that recognition was as the majority or 9(a) representa-
tive must be inferred from the overall context. The provision
states that the employer was satisfied, by virtue of the proof
submitted, that the union was the majority representative of unit
employees. The only logical inference that can be drawn from
these words is that the recognition that was extended to the
Union was as the majority representative, and on this basis I
find the second prong is met.
The third prong, that the employer’s recognition was based
on the union’s having shown, or offered to show, evidence of
its majority support, is met by the express language of the pro-
vision. In further support of the conclusion that the recognition
extended to the Union was as the majority representative is the
final clause of the provision that states the Union will retain
that status until such time as it is lost through a Board election.
This language is consistent with the statutory scheme of Section
9(a), specifically that a union enjoys a continuing presumption
of majority status after contract expiration, a status it would not
enjoy if the parties intended for the relationship to continue as
an 8(f) relationship.
The language in the DVRCA agreement is very similar to the
language considered by the Third Circuit in Sheet Metal Work-
ers Local 19 v. Herre Bros., 201 F.3d 231, 242 (3d Cir. 1999),
and the court’s analysis is properly applied here. The intent and
content of the language implies a demand for recognition by the
Union, and the provision clearly recites that the Union submit-
ted proof that it represented a majority of its employees and that
the employer was satisfied with that proof. Article II further
states that the employer recognizes the Union as the exclusive
representative of the employees in the bargaining unit until
such time as the Union loses that status in an NLRB election.
The Third Circuit concluded that the language in Herre Bros.,
supra, which is almost identical to the language of article II,
unequivocally demonstrated the parties’ intent to create a 9(a)
relationship. I reach the same conclusion in this case with re-
spect to the residential unit and I find that by executing the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
DVRCA agreements containing article II, Respondent un-
equivocally extended 9(a) recognition to the Union. Upon the
expiration of the 1997–2001 agreement between Respondent
and the Union on April 30, 2001, the Union therefore enjoyed a
continuing presumption of majority status.
Respondent argues, in the alternative, that if it is found that
the language of article II establishes a 9(a) relationship, the
Union never made an actual showing of majority support, and
that in the absence of such demonstration, the recognition of the
Union as the 9(a) representative, which dates back to at least
1994, was unlawful. Respondent’s challenge to the Union’s
actual majority status, and to the lawfulness of the Union’s
recognition, comes long after the expiration of the 10(b) period
for such a claim, and it cannot be entertained. Machinists Local
1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960).
Respondent further argues that the filing of the decertifica-
tion petition on May 23, 2001, demonstrates the Union’s loss of
majority support in the residential unit. This argument is with-
out merit. It is not clear from the record for what unit the peti-
tion was filed. Assuming it was filed in the residential unit,
there is no evidence of how many employees were in the unit at
the time or how many signatures supported the petition. The
filing of the petition therefore does not demonstrate that the
Union lacked majority support as of May 23, 2001, or at any
time thereafter. Hospital Metropolitano, 334 NLRB 555, 557
(2001).
Turning to the specific complaint allegations, it is alleged
that Respondent has refused to meet and bargain with the Un-
ion since February 27, 2001, the date the Union served notice
of termination of the existing agreement. Although it is true
Respondent did not respond to that request for over 2 months,
the evidence firmly establishes Respondent’s refusal to bargain
as of May 10, 2001, the date of counsel’s letter advising the
Union that Respondent would not negotiate a successor agree-
ment. I, therefore, find Respondent has failed and refused to
meet and bargain with the Union since May 10, 2001, in viola-
tion of Section 8(a)(5) and (1) of the Act. I further find, as al-
leged in the complaint, that Respondent unlawfully withdrew
recognition from the Union as of that same date, in violation of
Section 8(a)(5) and (1).4
There is no factual basis from which to conclude that there
were no employees employed in the residential unit after April
30, 2001. First, although Nolt testified that after April 30, 2001,
he no longer recognized the distinction between the commercial
unit and the residential unit, and that he considered all of his
employees as performing commercial work in the generic
sense, he admitted employees continued to perform shingle,
slate, and tile work after April 30, 2001, and that the work they
performed would have fallen under the 1997–2001 DVRCA
agreement. He further admitted there was no change in his
business after May 1, 2001. Second, the benefit funds payments
show that Respondent’s employees had consistently performed

4 The filing of the decertification petition on May 23, 2001, occurred
after Respondent’s unlawful refusal to bargain and withdrawal of rec-
ognition on May 10, 2001. This is an additional reason to reject Re-
spondent’s argument that the petition evidenced the Union’s loss of
majority support.
residential work for more than 6 years and that in April 2001,
employees performed 2001.25 hours of residential work. It is
highly improbable that Respondent would have gone from
2001.25 hours of residential work to zero hours between May 1
and 10, 2001, the date Respondent withdrew recognition from
the Union. Finally, Respondent offered no documentary support
for its assertion no employees were employed in the residential
unit after April 30, 2001. For these reasons, I find Respondent’s
argument that there were no employees employed in the resi-
dential bargaining unit after April 30, 2001, without merit.
C. The Commercial Unit
1. The facts
The Roofing Contractors’ Association (RCA) and the Union
have been party to a series of collective-bargaining agreements,
including agreements effective from 1993 to April 30, 1997
(1993–1997 RCA agreement), May 1, 1997, to April 30, 2001
(1997–2001 RCA agreement), and May 1, 2001, to April 30,
2009 (2001–2009 RCA agreement). These agreements cover
commercial work which is defined as low-slope or flat roofing
done on commercial premises, excluding shingle, slate, and tile
roofing. Similar to the bargaining pattern with the DVRCA,
after an agreement is reached between the Union and the RCA,
copies of the agreement are sent to independent employers for
their acceptance and execution. At the time of the hearing there
were 19 employer-members of the RCA and approximately 80
signatories to the RCA agreements.
In article III of both the 1993–1997 and the 1997–2001 RCA
agreements, the Union was recognized as the sole and exclusive
bargaining representative in the following unit:

All journeymen roofers, apprentices and foremen and all em-
ployees performing commercial roofing work within the ju-
risdiction of the Union.

On May 24, 1994, Nolt signed an assent binding Respondent
to the terms of the 1993–1997 RCA agreement. In September
1994, Respondent applied and was admitted to membership in
the RCA, and Nolt signed a bargaining agent authorization. The
concluding paragraphs of that authorization stated in relevant
part:

The undersigned agrees to abide by all decisions of the
Association . . . provided such decisions are made in good
faith and in accordance with the By-laws and Constitution
of the Association.
This authorization may only be revoked by written no-
tice from the undersigned to the Association not less than
ninety (90) days prior to the expiration of the current labor
agreement between the Association and Union (April 30,
1993). Upon the giving of such notice to the Association,
this authorization will terminate for all purposes.

In January 1997, Nolt withdrew from membership in the
RCA and withdrew the RCA’s bargaining authority. He also
advised the Union he was exercising Respondent’s option not
to renew the 1993–1997 RCA agreement.
The negotiations between the RCA and the Union for the
1997–2001 RCA agreement took place from mid-March to
early May 1997. Two proposals advanced by the Union were
D. A. NOLT, INC. 1289
the adoption of more restrictive double-breasting language, and
the incorporation of 9(a) recognitional language. Richard Har-
vey, executive director for the RCA, testified that the members
of the negotiating committee consulted with counsel and were
aware of the significance of converting the existing 8(f) rela-
tionship into a 9(a) relationship. They were also confident the
Union would not have any problem showing majority status in
all of the member shops. The RCA took the position that it
would agree to the inclusion of 9(a) language if the Union
dropped the double-breasting proposal. The Union agreed, and
the following language was incorporated in article III:

Inasmuch as the Union has demanded recognition from the
Employer as the exclusive bargaining representative of the
Employer’s employees in the bargaining unit described herein
under Section 9(a) of the National Labor Relations Act, and
the Employer is satisfied and has verified that the Union
represents a majority of its employees in the bargaining unit
described herein, the Employer hereby recognizes the Union
as the exclusive collective bargaining representative of its
employees on all present and future job sites within the juris-
diction of the Union, unless and until such time as the Union
loses its status as the employee’s exclusive representative.

In October 1997, Nolt signed an assent to be bound to the
terms of the 1997–2001 RCA agreement that included the 9(a)
language. In June 1999, Respondent reapplied and was readmit-
ted to membership in the RCA, and Nolt again signed a bar-
gaining agent authorization. The concluding paragraphs of the
bargaining agent authorization that Nolt signed in 1999 con-
tained the same revocation language as appeared in the bargain-
ing agent authorization that Nolt signed in 1994, that is, that the
authorization could only be revoked by written notice submit-
ted not less than 90 days prior to the expiration of the current
collective-bargaining agreement and that the association mem-
ber was bound only to those decisions of the RCA made in
good faith.
In October 1999, the Sheet Metal Workers Local 19 filed a
petition seeking to represent sheet metal workers employed by
Respondent and by Safe, Inc., a company owned by David
Nolt’s wife. At a hearing in that matter, Nolt was asked to read
the language of article III relating to Section 9(a) into the re-
cord. He was then asked if he “agreed with that statement” and
he said yes. After the hearing, the petition was dismissed by the
Regional Director based on a finding that there were no unit
employees, and the petitioner’s request for review was denied
by the Board. In the course of those proceedings, Respondent
filed a brief with the Regional Director, and a statement in op-
position to the petitioner’s request for review with the Board. In
both documents, Respondent made the representation that arti-
cle III conferred Section 9 status on the Union. During his tes-
timony in this case, Nolt was asked when he read the article III
language at the representation hearing in October 1999, if he
understood what the language meant. Nolt testified that he did
not, and that he had “not a clue” as to the difference between an
8(f) agreement and a 9(a) agreement in October 1999. Nolt
claimed the first time he became aware of the distinction was
after the unfair labor practice charges were filed in this case.
In mid June 2000, Tom Pedrick, vice president of the Union,
initiated a discussion with Harvey about a successor agreement
to the 1997–2001 RCA agreement which was not due to expire
for another 10 months. They talked about bargaining patterns
that were emerging in other trades, and Pedrick asked if the
association would be interested in a long-term agreement. Har-
vey asked what kind of numbers he was talking about, and
Pedrick suggested $1.50 for 6 years. Harvey said he would talk
to the board of directors. In the summer of 2000, there were 18
employer-members of the RCA. Eight members were on the
board of directors, which also served as the negotiating com-
mittee.
After speaking with the members of the board, Harvey told
Pedrick they would consider $1 a year for 8 years. The parties
went on to discuss other proposals and counterproposals, al-
though it is not clear if these discussions took place between
Harvey and Pedrick, between the two negotiating committees,
or both. The substance of the discussions centered around in-
creases in travel pay and board money (payment for overnight
lodging for long-distance jobs), and there was discussion about
open shop companies and the difficulty the Union would have
in getting them to sign an 8-year agreement. It was agreed that
if a contractor had not been a signatory for 5 years, the Union
could offer that contractor a 48-month agreement. A memoran-
dum of agreement was drafted by Harvey incorporating the
agreed-upon terms and ratification by the RCA membership
and the union membership was required.
When asked why the RCA engaged in negotiations 10
months prior to the contract expiration, Harvey testified that the
terms being offered by the Union were very favorable from
management’s perspective. According to Harvey, it was “an
excellent offer, an outstanding opportunity to stabilize the in-
dustry and set labor costs at a very attractive level.” Harvey
was aware that the General Building Contractors Association
and the Carpenters Union had recently reopened their agree-
ment, added a $.25 increase and signed a new 3-year agree-
ment. The Operating Engineers had recently settled a 4-year
contract for $1.50, $1.50, $1.60, and $1.60. The electricians had
settled at $2, $2, and $2. The bricklayers had settled at $1.85,
$2, and $2.25. There was a BNA report that in the Midwest an
employer had signed a 10-year agreement. Given these bargain-
ing results, Harvey testified the RCA wanted to take advantage
of the Union’s offer. Harvey denied that the decision to negoti-
ate early was made in order to prevent Respondent from being
able to withdraw from the RCA, and he denied ever being told
by Nolt to let him know when negotiations would begin for a
successor RCA agreement.
When McCann was asked why negotiations took place so
early, he testified that by negotiating early, contractors would
know their labor costs going into the spring bidding season.
McCann also testified that a lot of other union were getting $2
to $3 increases and were “pricing themselves out of the box.”
He felt the terms offered by the Union to the RCA would make
union contractors competitive with the nonunion sector.
Harvey testified that in the course of the negotiations, Union
officials told him they did not want the union membership to
become aware of the terms being discussed, and they asked if
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
the RCA would keep the negotiations confidential. Harvey
explained:

The union had expressed their concern that word of the pro-
posal not reach the men, for whatever their reasons were at
that time. The men—the members of the union—they didn’t
want that out there yet . . . there was concern that if the word
went to all the employers, the word would get to the men. So,
the way we tried to develop it first was, well, let’s discuss it
with the negotiating committee first, which is the board of di-
rectors, which is what I did. After several conversations, we
developed the dollar a year for eight years, $5.50 a day travel.
Hey, get a memorandum drafted. Get the union’s signature on
it and let’s vote it by the membership. . . . We need[ed] to
keep it under wraps so the membership of the union didn’t
find out about it until the employer side had a chance to vote
on ratification.

In contrast to Harvey’s testimony about the Union’s request
to keep the negotiations “under wraps,” McCann denied the
negotiations were kept secret from the union membership.
Pedrick, who was an active member of the Union’s negotiating
team, did not testify.
On July 5, Harvey faxed a memorandum of agreement in-
corporating the agreed-upon terms to the Union. That same day,
he faxed the agreement, together with a cover letter and a ratifi-
cation ballot, to the eight employer-members of the negotiating
committee and requested that they return their completed bal-
lots by July 7. The vote of the bargaining committee was
unanimous in favor of ratification. By operation of a weighted
voting system, the votes cast by the members of the negotiating
committee made up more than 50 percent of the total number of
votes held by all association members. The negotiating commit-
tee’s vote in favor of ratification was therefore determinative.
Following the vote of the negotiating committee members,
the balloting was extended to the ten other employer-members.
According to Harvey, there was continued concern that word of
the agreement would get out to the employee-members of the
Union. To avoid that possibility, Harvey testified he and his
staff called each owner and told them to stand by their fax ma-
chines to receive the memorandum of agreement, the ballot and
a cover letter. Owners reached on July 11 were asked to return
their ballots by July 13; owners reached on July 12 were asked
to return their ballots by July 14. Nolt was included in the
group that was reached on July 12 and he was asked to return
his ballot by July 14.
In the cover letter, Harvey set forth, verbatim, the concluding
two paragraphs of the bargaining agent authorization. He also
notified the employers that the negotiating committee had voted
unanimously in favor of ratification. He then instructed each
member to vote for one of three options: acceptance of the ten-
tative agreement, rejection of the agreement, or withdrawal of
the member’s bargaining agent authorization from the RCA.
Regarding the last option, Harvey wrote:

Members who wish to exercise their right to withdraw their
bargaining agent authorization from the Association for the
collective bargaining agreement that will become effective
May 1, 2001 must do so at this time and should not vote to
accept or reject the tentative agreement, but rather should use
the ballot form to provide written notice to the Association of
their decision to resign from Association membership. Please
note that should your firm decide to exercise its right to with-
draw from the Association at this time, the company will con-
tinue to be bound by the current labor agreement which ex-
pires at midnight on April 30, 2001.

Harvey testified to the reasons why members were given the
third option of withdrawing from the Association:

Under normal circumstances—if I can use the term ‘nor-
mal’—negotiations wouldn’t commence until after you were
past the 90-day window that the bargaining agent allows you
to withdraw. So, in most other instances, anybody that wanted
to withdraw would have already notified us of their decision
to withdraw prior to our commencing negotiations. In this in-
stance, because of the way the negotiations occurred, [they]
hadn’t been afforded the opportunity—members hadn’t been
afforded the opportunity to withdraw and we are asking them
to ratify an agreement that was developed in the course of
about three weeks. So, it’s pretty likely that many of them
weren’t aware that we were negotiating. So we wanted to
make sure we preserved their right to withdraw if for some
reason they didn’t want to be bound by this new tentative
agreement that we were proposing. . . . [A]s I indicated ear-
lier, these negotiations for the 2001 through 2009, occurred in
a somewhat unusual fashion. The members had not yet been
informed and we didn’t want to bind anybody to an agree-
ment they didn’t want to be bound to. . . . But at the same
time, the negotiating committee didn’t want to lose the oppor-
tunity to take advantage of this offer. So, we used the ballot to
say to members, because the bargaining agent authorization
says that you can withdraw not less than 90 days prior to the
expiration, we used the ballot to inform the membership, “If
you wish to withdraw, you have the opportunity to do so at
this time.”

Harvey was asked if the RCA had the Union’s consent to al-
low employers to withdraw from the association, and he testi-
fied there was no such discussion.
Steven Consalvo was Respondent’s vice president in the
summer of 2000. Consalvo recalled speaking with Nolt about
the terms of the tentative RCA agreement on two or three occa-
sions. Nolt told Consalvo he did not have a problem with the
wage increases that were in line with what other trades were
getting, but he was not happy with the fact that the agreement
was for an 8-year term. Nolt told Consalvo that he was never-
theless going to sign the agreement. Nolt cast his ballot on July
18, 2001, and checked the box that he accepted the terms of the
agreement. By July 20, all ballots had been cast and the vote
was unanimous in favor of ratification.
During the course of the negotiations, Pedrick had told Har-
vey that he wanted to move quickly on ratification and to have
a vote of the union membership by the end of July. For reasons
that are not clear in the record, the Union’s ratification vote did
not take place until September 26. On that day, McCann called
Harvey and asked for a list of employers that the RCA repre-
sented. Harvey faxed him copies of every ballot cast by the
RCA’s members, including Respondent’s ballot. The Union
membership ratified the new agreement by a vote of 250 to
D. A. NOLT, INC. 1291
100. On October 26, 2000, the RCA and the Union executed a
memorandum of agreement incorporating the new contract
terms.
Between October 2000 and January 2001, Harvey and Nolt
spoke on a number of occasions about various matters. There
was no discussion about the balloting procedure and no men-
tion by Nolt that he was contemplating withdrawing from the
RCA.
In a letter dated January 30, 2001, Nolt advised Harvey that
Respondent was resigning from membership in the RCA and
terminating its delegation of bargaining authority. Nolt sent a
copy of the letter to the Union. Respondent continued to abide
by the terms of the 1997–2001 RCA agreement through to its
date of expiration. On April 30, 2001, Nolt sent a letter to his
employees advising them that as of May 1, 2001, the Company
would no longer be a union contractor. Nolt testified that after
he sent this notice out, approximately 10 to 12 employees left.
By letter dated May 7, 2001, McCann demanded Respondent
abide by the terms of the 2001–2009 RCA agreement. In two
letters dated May 9 and 10, 2001, counsel for Respondent ad-
vised the Union that Respondent was not bound to the terms of
the 2001–2009 RCA because Respondent had timely with-
drawn from the association. Counsel further stated that since
the bargaining relationship between Respondent and the Union
in the commercial unit was governed by Section 8(f), Respon-
dent was under no obligation to bargain for a successor agree-
ment.
Nolt gave several reasons why he voted to accept the terms
of the 2001–2009 agreement rather than opting to withdraw
from the RCA in July 2000. First, he claimed that when he read
the ballot, he did not understand it and did not know what it
was. Second, he was pressured by Harvey to cast his ballot and
he did not have time to consult with an attorney. Third, Nolt did
not think he would be precluded from withdrawing from the
association at a later time, provided he withdrew prior to the
90-day period. Fourth, he feared that if he withdrew from the
association 9 months prior to the expiration of the existing
agreement, his already strained relationship with the Union
would worsen and his business would have been negatively
affected.5 Nolt testified, “[T]he union would know that I am
voting against the contract and that I am opting to get out. The
third option [to withdraw from the RCA] was not even an op-
tion. I mean, they are asking me to give up all of my rights to
the Association and tell the Union, in the middle of the summer
during my busiest season, that I do not want you guys no more.
I mean, I would have pretty much been out of business.”

5 Nolt’s relationship with the Union was a strained one. Nolt testified
the Union sent him unqualified roofers who not only did substandard
work, but were disruptive on his jobsites. He described an incident on
Thanksgiving weekend 2000 when McCann allegedly threatened to
throw one of Nolt’s employees off a roof. Both the employee involved,
Harry Van Scriver, and McCann testified about this incident. Suffice it
to say Van Scriver said McCann threatened him, and McCann denied it.
2. Analysis
a. The 9(a) versus 8(f) relationship
The General Counsel submits that article III of the 1997–
2001 RCA agreement establishes the existence of a 9(a) rela-
tionship in the commercial unit. Applying the principles of
Staunton Fuel & Material, Inc., 335 NLRB 717 (2001), I find
the three-prong test is met. First, it is expressly stated that the
Union demanded to be recognized under Section 9(a). Second,
upon the Union’s demand for 9(a) recognition, the employer
verified the Union represented a majority, and, upon that verifi-
cation, extended recognition. It would be a strained interpreta-
tion to read this language to mean that 9(a) status was de-
manded, majority status was proven, but the employer agreed
only to continue the preexisting 8(f) relationship. To the extent
that there is any ambiguity on this point, however, it is proper
to consider extrinsic evidence. Staunton Fuel, supra at fn. 15.
Harvey testified that in the negotiations that led up to the inclu-
sion of article III in the collective-bargaining agreement, he and
the members of the negotiating committee were fully aware that
they were agreeing to convert the relationship from an 8(f)
relationship to a 9(a) relationship. The second prong of the test
is therefore satisfied. Third, article III states the employer “veri-
fied that the Union represents a majority of its employees.” The
Board has found similar language sufficient to satisfy the third
prong of the Staunton Fuel test. Nova Plumbing, Inc., 336
NLRB 633 (2001). Finally, there is language that the relation-
ship will continue until such time as the Union “loses its status”
as the employee’s exclusive representative. Collective-
bargaining relationships in the construction industry are pre-
sumed to be 8(f) relationships unless and until the Union
achieves 9(a) status. In the context of this particular provision,
in which it is explicitly stated that the Union demanded 9(a)
recognition, that the Union’s majority status was verified, and
that upon that verification recognition was extended, I find that
the reference to “a loss in status” refers to a loss in 9(a) status.
Considering all of the words of the provision, I conclude the
union unequivocally demanded recognition as the employees’
9(a) representative and that the RCA unequivocally accepted it
as such. In October 1997, Nolt signed the assent form agreeing
to be bound to the 1997–2001 RCA agreement, and thereby
accepted the Union’s demand for 9(a) recognition. Reichenbach
Ceiling & Partition Co., 337 NLRB 125, 128 (2001).
I am not persuaded by Respondent’s argument that Nolt did
not understand the significance of the 9(a) language when he
signed the assent. The first time there was an expression of a
lack of understanding on his part was in this litigation. Prior to
Nolt’s testimony in this case, there was no inquiry by Nolt into
the meaning of this provision or an expression of confusion,
either contemporaneous with his signing the assent form, or at
any time thereafter. Nolt was specifically asked during the
course of the October 1999 representation hearing to read the
9(a) language into the record. He was then asked if he agreed
with the language, and he testified that he did. Implicit in his
statement that he agreed with the statement is that he under-
stood the statement, because a person cannot agree with some-
thing he doesn’t understand. In connection with that same rep-
resentation case, in both the brief filed with the Regional Direc-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
tor, and in the opposition statement filed with the Board, Re-
spondent took the position that the RCA contract language
conferred Section 9 status on the Union. Given these circum-
stances, I find Nolt’s testimony in this case that he was unaware
of the difference between Sections 8(f) and 9(a) when he signed
the assent forms unpersuasive.
Respondent makes the same alternative argument with re-
spect to the commercial unit as it did for the residential unit,
that is, if it is found that the language of article III establishes a
9(a) relationship, the Union never made an actual showing of
majority support, and that in the absence of such demonstration,
the recognition of the Union as the 9(a) representative by the
RCA on May 1, 1997, was unlawful. Respondent’s challenge to
the Union’s actual majority status, and to the lawfulness of the
Union’s recognition, again comes long after the expiration of
the 10(b) period for such a claim, and it cannot be entertained.
Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S.
411 (1960).
Respondent further argues that the filing of the decertifica-
tion petition on May 23, 2001 demonstrates the Union’s loss of
majority support in the commercial unit. As previously dis-
cussed in connection with the residential unit, it is not clear
from the record for what unit the petition was filed. Assuming
it was filed in the commercial unit, there is no evidence of how
many employees were in the unit at the time or how many sig-
natures supported the petition. The filing of the petition there-
fore does not demonstrate that the Union lacked majority sup-
port as of May 23, 2001, or at any time thereafter. Hospital
Metropolitano, 334 NLRB 555, 557 (2001).
b. The Retail Associates analysis
In Retail Associates, Inc., 120 NLRB 388 (1958), the Board
stated that, in accordance with the Act’s fundamental purpose
of fostering and maintaining stability of bargaining relation-
ships, it would refuse to permit withdrawal of an employer or
union from an established multiemployer bargaining unit, “ex-
cept upon adequate written notice given prior to the date set by
the contract for modification, or to the agreed-upon date to
begin the multiemployer negotiations.” The Board further
stated that “where actual bargaining negotiations based on the
existing multiemployer unit have begun, we would not permit,
except on mutual consent, an abandonment of the unit upon
which each side has committed itself to the other, absent un-
usual circumstances.” Id. at 395. In Charles D. Bonanno Linen
Service v. NLRB, 454 U.S. 404, 410–411 (1982), the Supreme
Court noted that the Retail Associates rules “permit any party to
withdraw prior to the date set for negotiation of a new contract
or the date on which negotiations actually begin, provided that
adequate notice is given. Once negotiations for a new contract
have commenced, however, withdrawal is permitted only if
there is ‘mutual consent’ or ‘unusual circumstances.’” The
“unusual circumstances” exception has historically been limited
to only the most extreme situations, such as where the employer
is subject to extreme financial pressures or where the multiem-
ployer unit has dissipated to the point where the unit is no
longer a viable bargaining entity. Id. at 410–411.
In Chel LaCort, 315 NLRB 1036 (1994), the Board had the
opportunity to address the issue of whether a multiemployer
association’s deliberate failure to notify its members that nego-
tiations had commenced constituted unusual circumstances
such that would excuse a member’s attempted withdrawal from
the association. The Board held that there was no precedent
which would support extending the “unusual circumstance”
exception to situations where the multiemployer association
fails, deliberately or otherwise, to inform its employer-members
of the start of negotiations, and the Board declined to extend
the exception to the circumstances in that case. The Board
noted, however, that there was no evidence of collusion or con-
spiracy involving the Union in that case, and it was left to an-
other case to decide whether or when such evidence would be
sufficient to show “unusual circumstances.” Id. at fn. 5.
Respondent’s president Nolt did not receive notice of the
start of negotiations which commenced 10 months prior to the
previous agreement’s expiration, and 7 months before negotia-
tions had been conducted in the past. He was not made aware of
the fact that negotiations had taken place until after the RCA
and the Union had reached a total and complete agreement. Nor
was he aware that an agreement had been reached until after the
association, by a majority vote of the board of directors, had
effectively ratified the agreement. The reason Nolt was un-
aware of these events was because of a secret agreement be-
tween the RCA’s negotiating committee and the Union to con-
ceal the negotiations from their respective memberships. I
credit Harvey’s testimony over that of McCann when Harvey
testified that the RCA and the Union had agreed to “keep [the
negotiations] under wraps so the membership of the Union
didn’t find out about it until the employer side had a chance to
vote on ratification.”6 The RCA went to some lengths to ac-
commodate the Union’s request. Not only did the board of di-
rectors not advise any of the employer-members of the negotia-
tions while they were ongoing, when Harvey and his staff faxed
the terms of the agreement, the ballot and the cover letter to the
employers on July 12 and 13, 2000, the employers were told to
stand by their fax machines so as to ensure that word of the
agreement would not leak out to employees.
Respondent argues that the secret arrangement between the
RCA and the Union amounted to collusion, and that as a direct
result of that collusion, Respondent was confronted with a fait
accompli on July 12: a completely negotiated agreement, effec-
tively ratified by the RCA, and subject only to ratification by
the union membership. It is Respondent’s position that this
constituted “unusual circumstances” as contemplated in foot-
note 5 of Chel LaCort, 315 NLRB 1036 (1994).
The General Counsel concedes that Respondent was not
given notice of the onset of negotiations, but argues that Re-
spondent “learned of the bargaining shortly after it started.”
This is factually incorrect. Harvey credibly testified that his
discussions with Pedrick began in mid-June 2000. Respondent
did not learn of the negotiations until July 12, 2001, after they
had been completed. The facts of this case are therefore materi-
ally different than those in Chel LaCort, supra. In that case, the

6 Harvey testified he had been approached by Pedrick about this ar-
rangement, not McCann, and Pedrick did not testify. Harvey testified
he was never given a reason why the Union wanted the RCA to keep
the negotiations concealed from its membership and he never asked.
D. A. NOLT, INC. 1293
employer sought to withdraw from the association after one
negotiation session had been held, and before an agreement had
been reached. Here, negotiations were completed by the time
Respondent found out about them, and Respondent was de-
prived of any participation whatsoever in the bargaining proc-
ess because of the RCA and Union’s agreement to keep the
negotiations secret from its respective memberships.
The General Counsel further argues that regardless of how
the negotiations were conducted, Respondent waived any ob-
jection he may have had when he cast his ballot in favor of
accepting the agreement, and that it is equitable to hold Re-
spondent to that acceptance. I disagree. The cover letter accom-
panying the ballot reiterated the provision of the bargaining
agent authorization stating that the authorization could only be
revoked in writing “not less than ninety (90) days prior to the
expiration of the current labor agreement between the Associa-
tion and Union.” In the very next paragraph, however, the letter
stated that if the employer wanted to withdraw from the RCA,
it had to indicate that by choosing the third option on the ballot.
I disagree with the General Counsel that this letter was un-
equivocal notice to Respondent that it was “now or never.” It
was a mixed message, and there was an objective basis for
Respondent’s reliance on the RCA’s reiteration of the 90-day
withdrawal provision. I further disagree with the General Coun-
sel that the equities run against Respondent on this issue. The
fact is, it did not matter how Nolt cast his ballot, he was bound
to the agreement at that point regardless of whether he voted for
it or against it. The only contingency remaining as of July 12,
2000, was the ratification of the agreement by the union mem-
bership.
Harvey testified that the reason the third option appeared on
the ballot, allowing an employer to indicate that it wished to
withdraw from the RCA, was because having concealed the
negotiations from its members, “we wanted to make sure we
preserved their right to withdraw.” It was not, however, a right
the RCA could retroactively preserve. Under Retail Associates,
supra, once negotiations in this case commenced in mid-June,
Respondent was bound to the outcome of those negotiations
absent mutual consent or unusual circumstances. To accept the
argument that a multiemployer association can, absent mutual
consent, internally preserve the rights of its members not be
bound to an agreement ultimately reached between the associa-
tion and the Union, undermines the stability in collective-
bargaining relationships that Retail Associates seeks to achieve.
The third option on the ballot evidenced the RCA’s consent to
allow employers’ to withdraw at that time, but it did not consti-
tute the mutual consent required for withdrawal under Retail
Associates. The Union was never consulted about whether it
would allow employers to withdraw from the RCA after nego-
tiations were completed, and it never consented. Again, it did
not matter how Nolt cast his ballot. This was a ratification vote,
and once a majority of the votes were cast in favor of the
agreement, which occurred prior to July 12, it did not matter
how Nolt voted on July 18. Regardless if he had voted to accept
the agreement, to reject the agreement, or to opt out of the
RCA, he was bound to the agreement that had been negotiated
absent mutual consent, which did not exist, or unusual circum-
stances.
I find unusual circumstances existed on July 12, 2000, when
Nolt was made aware of the existence of the fully negotiated
agreement that had been effectively ratified by a majority of the
voting members of the association. The essential fact that dis-
tinguishes this case from the facts in Chel LaCort is that this
was not merely an internal failure on the part of the RCA to
communicate with its members. The RCA entered into a sur-
reptitious agreement with the Union whereby both sides agreed
to conceal negotiations from their respective member-ships.
This constituted unusual circumstances.
Having found that unusual circumstances existed on July 12,
2000, the question is whether those unusual circumstances jus-
tified Respondent’s withdrawal from the RCA on January 30,
2001. The General Counsel argues that assuming unusual cir-
cumstances existed in July 2000, Respondent did not indicate
its intention to withdraw from the association until January
2001, and that by waiting 6 months, Respondent waived its
ability to assert the claim. I find the General Counsel’s argu-
ment that Respondent was obligated to act within a reasonable
period of time persuasive. Reasonableness, however, should be
determined in the particular circumstances of the case and I
find it was not unreasonable for Respondent to act when it did.
Nolt served notice of his intention to withdraw from the RCA
90 days prior to the expiration of the existing agreement. This
was within the time limits prescribed by the RCA’s bargaining
agent authorization, and was one month prior to the notification
of termination date set forth in the collective-bargaining agree-
ment.7 I do not view these dates as controlling deadlines by
which Respondent had to act, but I do consider them in terms of
assessing the reasonableness of Respondent’s action. Nolt
committed to abide by the terms of the existing agreement
through to its expiration, which commitment he fulfilled. I con-
clude that Respondent acted in a sufficiently timely manner in
withdrawing from the RCA on January 30, 2002, based upon
the existence of unusual circumstances.
c. Respondent’s refusal to bargain as an
individual employer
Having found that the relationship between Respondent and
the Union in the commercial unit is governed by Section 9(a)
and not by Section 8(f), upon the expiration of the 1997–2001
agreement on April 30, 2001, the Union enjoyed a continuing
presumption of majority status and Respondent was obligated
to bargain with the Union. By refusing to bargain for a succes-
sor agreement, which refusal was conveyed to the Union by
letter dated May 10, 2001, Respondent violated Section 8(a)(5)
and (1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.

7 Art. XXXIX, sec. 2 of the 1997–2001 agreement stated in relevant
part: “This Agreement may be terminated by either party upon written
notice duly given to the other party on or before March 1 of the particu-
lar calendar year when it expires.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
3. The following units of employees are appropriate for the
purpose of collective bargaining within the meaning of Section
9(b) of the Act:

Residential unit: All journeymen roofers, helpers, foremen
and all employees performing residential roofing, residential
re-roofing, and slate, tile and shingle work on any job or pro-
ject within the jurisdiction of the Union; excluding office
clerical personnel, principals, guards and supervisors as de-
fined in the Act.

Commercial unit: All journeymen roofers, apprentices and
foremen and all employees performing commercial roofing
work within the jurisdiction of the Union.

4. The Union is the exclusive representative of the employ-
ees in the residential and commercial units for purposes of col-
lective bargaining within the meaning of Section 9(a) of the
Act.
5. Since on or about May 10, 2001, Respondent has violated
Section 8(a)(5) and (1) of the Act by withdrawing recognition
from the Union in the residential and commercial units.
6. Since on or about May 10, 2001, Respondent has violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
meet and bargain with the Union as the exclusive bargaining
representative of its employees in the residential and commer-
cial units.
7. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
An affirmative bargaining order is the traditional, appropriate
remedy for an 8(a)(5) refusal to bargain with the lawful collec-
tive-bargaining representative of an appropriate unit of employ-
ees. It is appropriate in this case as a remedy for the Respon-
dent’s unlawful withdrawal of recognition from the Union. First,
an affirmative bargaining order in this case vindicates the Sec-
tion 7 rights of the unit employees who were denied the benefits
of collective bargaining by the Respondent’s unlawful with-
drawal of recognition from the Union. At the same time, an
affirmative bargaining order does not unduly prejudice the Sec-
tion 7 rights of employees who may oppose continued union
representation because its attendant status is temporary. Second,
an affirmative bargaining order serves the important policies of
the Act to foster meaningful collective bargaining and industrial
peace. The temporary decertification bar inherent in this order
removes the Respondent’s incentive to further delay bargaining
or to engage in any other conduct that would further undercut
employee support for the Union. It also ensures that the Union
will not be pressured, by the possibility of a decertification peti-
tion, to achieve immediate results at the bargaining table follow-
ing the Board’s resolution of its unfair labor practice charges
and issuance of a cease-and- desist order. Providing this tempo-
rary period of insulated bargaining will also afford employees a
fair opportunity to assess the Union’s performance in an atmos-
phere free of the Respondent’s unlawful conduct. In this regard,
I note that following Respondent’s notification to its employees
on April 30, 2001, that it was withdrawing recognition from the
Union, 10 to 12 employees left Respondent’s employ. It is par-
ticularly appropriate to provide an insulated period in which the
Union can rebuild its support free from the pressure of possible
decertification. Third, a cease-and-desist order, alone, would be
inadequate to remedy Respondent’s refusal to bargain with the
Union in these circumstances because it would permit a decerti-
fication petition to be filed before Respondent had afforded the
employees a reasonable time to regroup and bargain through
their chosen representative in an effort to reach a collective-
bargaining agreement. Indeed, permitting a decertification peti-
tion to be filed immediately might very well allow the Respon-
dent to profit from its own unlawful conduct. These circum-
stances outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who oppose con-
tinued representation by the Union. For all of these reasons, an
affirmative bargaining order, with its temporary decertification
bar, is necessary to fully remedy the Respondent’s unlawful
refusal to bargain with the Union in the residential and commer-
cial units. Bridgestone/Firestone, Inc., 337 NLRB 133 (2001);
Caterair International, 322 NLRB 64 (1996).
Respondent is required to, on request, recognize and bargain
with the Union as the exclusive representative of the employees
in the residential and commercial units concerning their terms
and conditions of employment for a reasonable period of time,
and to embody any understanding reached in signed agree-
ments.
Because a number of employees left Respondent’s employ
after they received Respondent’s April 30, 2001 letter advising
them that the Company was going nonunion, Respondent
should be required to mail the attached notice marked “Appen-
dix” to all employees who left Respondent’s employ on or after
April 30, 2001. If there is a dispute as to the identity of these
employees, the matter is best resolved at the compliance stage.
[Recommended Order omitted from publication.]