Farrand Park Services

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 861 (N.L.R.B. 1985)

NEIGHBORHOOD ROOFING
Kenneth L. Hand Sr. d/b/a Neighborhood Roofing
and Contracting , and Kenneth L. Hand Jr. and
Sylvia Hand d/b/a Farrand Park Services and
Local No . 149, United Union of Roofers, Wa-
terproofers and Allied Workers , AFL-CIO.
Case 7-CA-23211
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DoTsoN AND MEMBERS
DENNIS AND BABSON
On 28 February 1985 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondents filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and briefs and has
decided to affirm the judge's rulings, findings,l and
i In par 7 of the section of her decision entitled "Obligations Under
the Collective-Bargaining Agreement ,',' the judge referred to a 10 No-
vember 1983 meeting and, in pars I and 2 of the section entitled "Inde-
pendent Violations of Section 8(a)(1)," she found the Respondents unlaw-
fully threatened to go out of business at that meeting The judge , howev-
er, did not fully set forth the statement on which she relied According to
employee Windra Blackmon's uncontradicted testimony , Respondent
Kenneth L Hand Jr told the assembled employees that if they "kept
running to the union" about their paychecks , "there wasn't going to be
any work "
In par 2 of the section of her decision entitled "Respondents are a
Single Employer," the judge correctly stated that there was no evidence
that Respondent Neighborhood Roofing and Contracting and Respondent
Farrand Park Services were commonly owned Neighborhood Roofing is
Kenneth L Hand Sr's sole proprietorship and Farrand Park Services is
his son 's and daughter -in-law 's trading name for their copropnetorship.
Kenneth L Hand Jr, however, managed both operations and Farrand
Park Services, as the judge found, was "wholly the fiscal creature" of
Neighborhood Roofing This "close family connection ," in the absence of
an "arm 's length" relationship, further supports the judge's finding that
the businesses are a single employer Truck & Dock Services, 272 NLRB
592 fn 2 (1984)
2 In adopting the judge 's conclusion that the Respondents violated Sec
8(a)(3) and (1) of the Act by discnminatonly failing to recall employees
White, Blackmon, Saunders, and Jones, we do not adopt the judge's as-
sertion in par . 4 of the section of her decision entitled "Violations of Sec-
tion 8(a)(3) and (1) of the Act," that the Respondents had a duty to seek
out those employees Under the Respondents' established practice, em-
ployees called Hand Jr for work assignments , Hand never called them
We agree with the judge , for the reasons more fully set forth in her deci-
sion, that when these employees called following their 29 February 1984
layoff, Hand falsely told each there was no available work . We also agree
he did so because each of them had either sought the Union 's assistance
and representation , or had insisted he receive the contractual wage rates
and benefits to which he was entitled . It is for these reasons, and not be-
cause of the Respondents ' recall procedures , that we agree the Respond-
ents violated the Act
The judge erroneously stated that two employees were hired after
White, Blackmon , Saunders , and Jones were laid off. There is no evi-,
dente that any employees were hired after that date . Of the eight em-
ployees who thereafter continued to work , however, all were less senior
than White and Jones One of the employees who worked after Febru-
ary, Robert E . Stephens , received his first paycheck 17 February, less
than 2 weeks before the Respondents purportedly ran out of work for
White, Blackmon , Saunders , and Jones
861
conclusions2 and to adopt' the recommended Order
as modified.3
The judge found, inter alia, that the Respondents
violated Section 8(a)(5) and (1) of the Act by refus-
ing to apply the collective-bargaining agreement
hourly wage and overtime rates to which the Re-
spondents were bound. We agree, but rely on evi-
dence different from that the judge cited. •
The parties' 1983-1984 collective-bargaining
agreement sets forth minimum wage rates for vari-
ous classifications, as amended by a supplemental
wage agreement effective 1 January 1984. The
agreement also provides for time and one-half or
double time for certain overtime work.
The judge found employees Windra Blackmon,
Ronald. Jones, and John Saunders were not paid
their proper wage. In so concluding, the judge de-
termined Blackmon's monthly pay from a summary
of Blackmon's 1983 checks, and compared those
figures with the number of hours the Respondents
reported he worked when they made contractually
required payments to union benefit funds.4 The
judge thus determined that Blackmon, who, in 1983
was a group 2 apprentice, was paid $7.87 per hour5
at a time when -he -should have been paid a mini-
mum of $10.33.
When more of the 1983 check summaries are
compared with reported hours, however, they
show inconsistent hourly wage rates from month to
month. For example, the records show Blackmon
in late 1983 was paid $10.55 per hour in September,
$13.47 in October, $8.65 in November, and $8.58 in -
December.6 Blackmon and some other employees
for whom the records show similarly erratic late
1983 hourly-wages testified at the hearing. None of
them, however, testified that their wage rates were
t
a We shall amend the remedy to provide that the Respondents shall
reimburse those unit employees denied contractual hourly wage and
overtime rates, and shall do so in a manner consistent with Board policy
as stated in Ogle Protection Service, 183 NLRB 682 ( 1970), enfd 444 F 2d
502 (6th Cir. 1971), with interest as prescribed in Florida Steel Corp, 231
NLRB 651 ( 1977). See generally Isis Plumbing Co, 138 NLRB 716
(1962), enf denied on other grounds 322 F 2d 913 (9th Cir. 1963)
We shall issue a new Order in lieu of the judge's recommended Order.
Pars 1(c) and (e) of our Order more closely 'conform to the judge's find-'
ings Pars 2(c) and (d) more specifically set forth the employees to be
made whole and the reasons therefor . Par 2(e) requires the Respondents
to remove from their files references to their unlawful failure to recall
employees White, Blackmon, Saunders, and Jones.
We shall issue a new notice to conform to our Order and to correct
the_ Judge's inadvertent errors and omissions.
The judge did not cite the evidence on which she relied in finding
Jones and Saunders were underpaid
8 The figure should be $7 84 per hour when calculated pursuant to the
judge's method •
8 Similarly , according to the 1983 records, Saunders earned $11.92 per
hour in October and $8 . 10 in November . Employee Michael Artman
earned $8 . 57 per hour in September, $ 13.24 in October, and $3 97 in De-
cember, according to the records , and, Dennis Pmkley earned $6 83 per
hour in September , $9 89 in October , $4.07 in November , and $8.37 in
December Finally ; the records show Jones earned $7 96 per hour in Sep-
tember, $9.50 in October, $6.41 in November, and $10.06 in December.
276 NLRB No. 81
862 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
so varied: We therefore do not rely on the 1983
records.
The General -Counsel also presented employee
pay summaries for 1984. Unlike the 1983 ,summa-
ries, the 1984 summaries -were prepared entirely
from employee paychecks and paystubs and show
consistent hourly wage rates from month to month.
The 1984 '.summaries for Blackmon, for example,
show that he was paid $10.38 per hour through I
February and, $11.37 thereafter. These figures are
consistent with his January group 2 apprentice po-
sitionand his 1 February promotion to group 4. As
the Respondents presented 'no_ evidence contradict-
ing these records, we regard'them as accurate and
reliable.
The 1984 summaries also ` show That employee
RobertE. Stephens.was paid $4_ per hour in Febru-
ary and, March -1984. The lowest paid position
under the contract, however, then paid a minimum
of $6.60 per hour. Accordingly, we find the Re-
spondents violated Section' 8(a)(5) and (1) of the
Act by unilaterally abrogating the ' collective-bar-
gaining hourly `wage rates to which they were
bound. -
The 1984 pay summary, also shows-that employ-
ee Dennis' Pinkley7 often worked more that- 40
hours per week during 1984. Although the collec-
tive-bargaining agreement requires at least time and
one-half the usual wage rate be paid. for more than
40 hours' work, 4 Pin'kley never received more than
his usual rate. Also, employees testified they often"
worked overtime without receiving overtime pay.
We thus find the Respondents further violated Sec-
tion 8(a)(5) and (1), of the, Act by unilaterally abro-
gating the collective-bargaining agreement 's over-
time provisions. - - '
Stephens and ,Pinkley primarily were paid with
Neighborhood Roofing checks rather than _ with
those issued under Farrand Park Services' . name.
As the judge correctly observed, there" are no.
records in evidence indicating the hours worked by
employees who '',ere, paid with Farrand Park 'Serv-
ices checks, and we therefore' cannot . determine
their, hourly pay during the period 'the - General
Counsel's complaint encompasses .9 Nevertheless, in
7 The judge'spelled his name as "Ptnokley."
8 Art 6, sec. 1(a) states in pertinent part: "In all cases where nec-
essary work is permitted , outside the, regular , working , hours, time and
one-half shall be paid for the first and second hours worked and double
time rate shall be paid for all additional hours " Regular working hours
are set forth in art ; 4, sec . I as follows. "The regular working day shall
consist of eight (8) hours labor . . . . The regular working week consists
of five (5) consecutive eight (8) hour days labor , beginning with Monday
and ending with Friday of each week "
8 The judge found in par 2 of. the section of her decision ' entitled "Ob-
ligations Under the Collective-Bargaunng Agreement ," that employee
Robert White was paid $5 and then $6 per hour in May 1983 rather than
the contractual $6.55 or $8.36 minimum rate then applicable White was
paid with Farrand Park Services checks at that time . Although the Gen-
accordance ,with the Judge's findings that Neigh-
borhood Roofing and Farrand Park Services con-
stitute a single employer and' their employees a
single unit, we find the Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by failing to apply
the contract to their Farrand Park Services em-
ployees. We leave to the compliance stage the de-
termination whether and if so, to what extent, this
violation affected their employees' pay.
ORDER - -
The National Labor Relations Board orders that
Respondents Kenneth L. Hand Sr. d/b/a Neigh-
borhood Roofing and. Contracting, Detroit, Michi-
gan, and Kenneth L. `Hand Jr. and Sylvia Hand
d/b/a Farrand Park Services,, Highland Park,
Michigan, their officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collective-
ly with Local No. 149, United Union of Roofers,
Waterproofers and Allied Workers, AFL-CIO as
the exclusive bargaining representative of all em-
ployees in the following bargaining unit:
All- journeymen and apprentice roofers and all
other employees engaged in roofing work, in-
cluding kettlemen, employed by Neighbor-
hood Roofing and Contracting and Farrand
Park Services, but excluding all clerical em-
ployees, guards, and supervisors as defined in
the Act. ,
(b) Refusing to apply the terms and conditions of
the collective-bargaining agreement between the
Union and Respondent Neighborhood Roofing and
Contracting to all employees in the unit set-forth in
paragraph 1(a).
(c) Refusing to recall or otherwise discriminating
against employees for seeking the Union's assist-
ance and representation or for insisting they re-
ceive contractual wage rates and benefits.
(d) Threatening employees they will lose' their .
jobs or that the Respondents will close their busi-
nesses if the employees continue to seek, the
Union's assistance and representation or insist they
receive contractual wage rates and benefits.
(e) Coercively interrogating any employee about
union support or union activities.
(f) Negotiating directly -with employees regard-
ing their terms and conditions of employment,
eral Counsel did not allege the Respondents violated the Act in May
1983 , the judge in par 7 of the section of her decision entitled "Neigh-
borhood and Farrand'Park Services Employees Constitute an Appropri-
ate Unit," relied in part on White's May 1983 pay to infer that Farrand
Park Services employees were similarly underpaid within the period the
General Counsel 's complaint encompassed. We find it unnecessary to
pass on this inference.
NEIGHBORHOOD ROOFING
thereby *circumventing their exclusive bargaining
representative.
(g) In any' like or related manner interfering
with, restraining,` or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain collec-
tively with Local No. 149, United Union of Roof-
ers, Waterproofers and Allied Workers, AFL-CIO
as the exclusive bargaining representative of all em-
ployees in the bargaining unit set forth in para-
graph 1(a).
(b) Apply the terms and conditions of the collec-
tive-bargaining agreement between the Union and
Respondent Neighborhood Roofing and Contract-
ing to all employees in the bargaining unit set forth
in paragraph 1(a).
(c) Make employees whole for any loss of earn-
ings suffered as a result of the failure to apply the
contractual hourly wage rate and overtime provi-
sions to unit employees, in the manner set forth in
the remedy section of the judge's decision, as
amended.
(d) Make Robert White, Windra Blackmon, John
Saunders, and Ronald Jones whole for any loss of
earnings and other benefits suffered as a result of
the unlawful failure to recall them from layoff, in
the manner set forth in the remedy section of the
judge's decision.
(e) Remove from their files any reference to the
unlawful failures to recall them from layoff and
notify the employees in writing that this has been
done and that the failure to recall them will not be
used against them in any way.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary_ to analyze the
amount of backpay, due under the terms of this
Order.
(g) Post at the Respondents' jobsites and offices
copies of the attached notice marked "Appen-
dix." 1 ° Copies of the notice, on forms provided by
the Regional Director for Region 7, after being
signed by the Respondents' authorized representa-
tives, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
10 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
863
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that'the notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Local No. 149, United Union of Roofers, Wa-
terproofers and Allied Workers, AFL-CIO as the
exclusive bargaining representative of all of you in
the following bargaining unit:
All journeymen and apprentice roofers and all
other employees engaged in roofing work, in-
eluding kettlemen, employed by Neighbor-
hood Roofing -and Contracting and Farrand
Park Services, but excluding' all clerical em-
ployees, guards, and supervisors as defined in
the Act.
WE WILL NOT refuse to apply to you the terms
and conditions of the collective-bargaining agree-
ment between the Union and Neighborhood Roof-
ing and Contracting.
WE WILL NOT refuse to recall or otherwise dis-
criminate against you for seeking the Union' s assist-
ance and representation or for insisting you receive
your contractually guaranteed wage rates and ben-
efits. . '
WE WILL NOT threaten you that 'you will lose
your job or that we will close our businesses if you
continue to seek the Union's assistance and repre-
sentation or insist you receive your contractually
guaranteed wage rates and benefits.
WE WILL NOT coercively question you about
your union support or activities. _
WE WILL NOT negotiate directly with you re-
garding your terms and conditions of employment,
thereby circumventing your Union.
WE WILL NOT in, any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act. '
WE WILL recognize and, on request, bargain col-
lectively with the Union as the exclusive represent-
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ative of those of you in the bargaining unit set
forth above.
WE WILL apply to you the terms -and conditions
of the collective-bargaining agreement between .the
Union and Neighborhood Roofing and Contract-
ing.
WE WILL make you whole for any loss resulting
from our failure to -apply the collective-bargaining
agreement hourly wage and' overtime rates to you,
plus interest.
WE WILL make Robert White, Windra Black-
mon, John Saunders, and Ronald Jones whole for
any loss of earnings or other benefits resulting from
our failure to recall them from layoff, less any net
interim earnings, plus interest. -
WE WILL notify each of them that we have re-
moved from our files any reference to our failure
to recall him from layoff and that our failure to
recall him will not be used against him in any way.
KENNETH L. HAND - SR.' D/B/A
NEIGHBORHOOD ROOFING AND CON-
TRACTING
KENNETH L. HAND JR. AND SYLVIA
HAND D/B/A FARRAND PARK SERV-
ICES
Dwight Kirksey, Esq., of Detroit, Michigan , for the Gen-
eral Counsel.
Stephen M. Landau, Esq., of Birmingham , Michigan, for
the Respondent.
Judith Anne Sale, Esq., of Southfield , Michigan , for the
Charging Party.
DECISION
'STATEMENT OF THE-CASE
ARLINE PACHT , Administrative Law Judge. This case
was heard in Detroit , Michigan , on December 3, 4, and
5, 1984 , pursuant ' to an original charge filed by Local
No. 149, United Union of Roofers , Waterproofers and
Allied Workers , AFL-CIO, on March 12, 1984, as
amended thereafter on April 2 and July. 31 ,• 1984. The
complaint and notice of hearing which issued on April
30, and was amended on October 31,_ •1984, alleges that .
Kenneth L. Hand , Sr. d/b/a Neighborhood Roofing and
Contracting and Kenneth L. Hand , 'Jr., d/b/a Farrand
Park Services ' (the Respondents), violated - Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act). i- Specifically ; the Respondents are alleged to
have violated Section 8(a)(1) of the Act by coercively in-
terrogating employees . threatening • to go out of business
if the employees sought union assistance and negotiating
directly with employees , thereby circumventing the
' In conformance with the Respondents ' answer, the General Counsel
orally moved to amend the complaint at the conclusion of the hearing to
reflect the fact that Kenneth Hand Ji'and Sylvia Hand are copropnetors
of Farrand Park Services
Union; Section 8(a)(1) and (5) of the Act by failing and
refusing to pay employees wage rates and overtime rates
as specified in the collective-bargaining agreement, and
Section 8(a)(1) and (3) of the Act by laying off employ-
ees and refusing to recall them because they engaged in
protected concerted activity. The Respondents filed
timely answers to the complaints.
On the entire record in this case, and from my obser-
vation of the witnesses and their demeanor and after due
consideration of the briefs filed by the Charging Party
and the Respondents, 2 I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The complaint alleges and the answer admits that Ken-
neth L. Hand Sr. is and has been at all times material
herein an individual proprietor doing business. as Neigh-
borhood Roofing and Contracting with offices at 10200
Prairie, Detroit, Michigan. Respondent Neighborhood
further admits that it is-and has been at all times material
herein' engaged in roofing and roof repair work, main-
taining jobsites at various locations in the Detroit, Michi-
gan area.
During the calendar year ending December 31, 1983,
Neighborhood', in the course and' conduct of its business
operations, provided roofing services in excess of $50,000
for Chrysler Corporation, an entity which has been
found by the Board to be an employer engaged, in com-
merce under Section 2(2), (6), and (7) of the Act.3 Ac-
cordingly, under the Board's indirect outflow standards,
it follows that Respondent Neighborhood is and has been
at all times material herein an employer engaged in com-
merce within the meaning of Section' 2(2), (6), and (7) of
the Act.
Respondents admit that Kenneth L. Hand Jr. and his
wife' Sylvia are co-owners of Farrand Park Services,
-maintaining a business address on Farrand Street in the
city of Highland Park, Michigan.
Although denied by Respondents, the evidence, as dis-
cussed more fully below, demonstrates that Farrand Park
Services also is engaged in `roofing and repair work with
Neighborhood. Therefore,' it follows from Neighbor-
hood's status as an employer under the Act that Farrand
Park, too, is an employer engaged in commerce under
the same statutory provision. -
II. THE LABOR ORGANIZATION INVOLVED
- Local No.- 149, United' Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO. (the Union or
Charging Party) is a labor organization within the terms
of Section 2(5) of the Act.
2 The General Counsel filed a bnef statement on the jurisdictional issue
together with a proposed order and notice The Respondents' brief in-
cludes in a section titled "Statement of Facts" many statements which
were not introduced into evidence at the hearing Accordingly, I have
disregarded named portions of the Respondents' bnef
8 See , e g, Auto Workers Local 212 (Chrysler Corp.), 257 NLRB 637,
638 (1981) ,
NEIGHBORHOOD ROOFING 865
III. THE ALLEGED UNFAIR LABOR PRACTICES
' ' A. Neighborhood's Relationship to Farrand Park
Neighborhood is a small company solely owned by
Kenneth L. Hand Sr. In June 1980, the senior Hand exe-,
cuted a collective-bargaining agreement with the Charg-
ing Party and thereafter signed subsequent agreements
through May 1984. Each agreement provided inter alia
for a graduated wage scale for roofers depending on
their level of experience, for employer contributions to
fringe benefit funds, and for overtime pay.
From the employees' perspective, Kenneth Hand 'Sr.
had little involvement in Neighborhood's day-to-day af-
fairs. Employees saw him but only on rare occasions
when they had reason to visit the , Prairie Street office.
Instead, real authority for management and daily oper-
ations of both firms rested with Kenneth Hand Jr.
(Hand). The record does not show precisely when Hand
and his wife Sylvia formed Farrand-Park Services. How-
ever, a checking account statement, introduced into evi-
dence as General Counsel's Exhibit 95 (G.C. Exh. 95),'
indicates that the Company was in existence at least as of
January 1, 1983.
Long-term Neighborhood employees Windra Black-
mon, Robert Jones, and John Saunders and Fan and Park,
employee, Robert White, testified uniformly as to the
ubiquitous role that the younger Hand played in running
the operations of both busiiiesses.4 Kenneth Hand hired
both Neighborhood and Farrand Park employees and it
was he who assigned them their work. Each evening the
employees were required to call Hand so that he could
advise them about when and where' to report to work
the following day. According to his instructions, both
Neighborhood and Farrand Park employees would as-
semble at Hand's house or proceed directly to the job-
site.
Hand also appeared at the jobsite on-a daily basis to
evaluate the workers' progress and to confer with plant
personnel. At some point in 1983, Hand designated
Neighborhood employee William Thomas, to be his as-
sistant . Thomas was the only other person to exercise su-
pervisory authority.
The record provides both oral and real evidence of the
extent to which Neighborhood and Farrarid Park em-
ployees joined in roof repair work at commercial
projects.5, Each of the employee witnesses recalled the
4 I regard Blackmon, Jones, and Saunders as Neighborhood employees
because, with but a few exceptions, they received Neighborhood's
checks Robert White was paid by Farrand Park from the date of his em-
ployment on Apnl - 20, 1983, through the balance of that year, thus,-he
may be viewed as a Farrand Park employee during that period I credit
their testimony , finding each ,of them totally reliable witnesses for the fol-
lowing reasons ( 1) their testimony was internally consistent and consist-
ent with the testimony of each other , (2) their demeanor revealed no arti-
fice, their mode of expression was natural , and their accounts gave no
hint of being rehearsed , (3) their testimony , was uncontradicted since Re-
spondents presented no witnesses , (4) Saunders testified adversely to_Re-
spondents although he had been recalled , and (5) documentary evidence
which came directly or was culled from Respondent's own business
records corroborated the employees ' oral representations Accordingly,
the fact statement in this decision generally represents a synthesis of their
credited testimony - -
5 On the final day of the hearing , the General Counsel offered various
business records into evidence The Respondent objected to their admis-
names of numerous persons with whom they worked
side by side for extended penods of time performing the
same ' or similar tasks on commercial roofing jobs.
Records . show .that the workers whom they identified
sometimes were on Farrand Park's payroll and other
times on Neighborhood's. To be sure, the General Coun-
sel's Exhibit 22, reveals that employees generally were
paid by one business or the other. But these same records
also show that, 'of the 20 employees who worked for
either company, only 4 received checks exclusively from
Farrand Park. With little apparent rhyme or reason, the
remaining 16 employees received some checks on at least
several occasions from either Neighborhood or Farrand
Park. For example, an examination of the General Coun-
sel's Exhibit 22(a),shows that from February 3 to De-
cember 23, 1983, employee Michael Altman was paid by
Farrand Park for 16 weeks and by Neighborhood for 21.
Similar random patterns appear with respect to payments
to other employees such as Dennis Pinckley, Gary Fer-
guson, and John, Tuttle. Regardless of the firm name
which appeared on their paychecks, there was no alter-
ation in the type of work performed by the employee
witnesses or their fellow workers. -
An examination of Neighborhood's invoices-to various
customers in 1983 and 1984 further supports the wit-
nesses' observations about inseparability of Farrand
Park's and Neighborhood's work force. First, it is signifi-
cant that every invoice bears a masthead which reads
"Neighborhood Roofing Co., Inc." It is also important to
-observe that, on most of the invoices, names of both
Neighborhood and Farrand Park employees are commin-
gled on the crews responsible for the various jobs. For
example , General Counsel's Exhibit 51(b), an invoice
dated Nov. 5, 1983, lists employees' Pinckley, Blackmon,
McJoy, Jones, and White as journeymen who repaired
roof leaks at an industrial plant. General Counsel's Ex-
hibit 22- shows that in the same week, Pinckley and
Blackmon were paid by Neighborhood while ' the other.
three men were paid by Farrand Park.
Other working' conditions were shared by Farrand
Park and Neighborhood employees. Employees of both
concerns received timecards. At the end of the week,
just prior - to payday, all employees were expected to
telephone either Ken or Sylvia Hand and report their
Sion claiming that insufficient time had been provided to inspect them.
After proper authentication by a credible witness, I admitted the exhibits
into evidence for the following reasons (a) the papers were derived di-
rectly or indirectly from Respondent 's own business records, (b) each of
the exhibits was served on Respondent the previous evening, (c) Re-
spondent knew that many of these documents were in the General Coun-
sel's or Charging Party's possession since August 1984 when the case first
was set - for trial and (d) the records , were not as voluminous as Respond-
ent claimed since a few , of them were simply consecutively numbered
pages of the same form e g , Neighborhood invoices are marked G C
Exhs 44-53, 60-782 , Farrand Park checking account statements are G C
Exhs 73-79, 90-93, and 95-97 Moreover, after the documents were ad-
mitted , Respondent presented no witnesses who controverted any of the
information contained therein
Although Respondent has had these exhibits in its possession since the
close of the hearing, it presented no substantive analysis in its brief show-
mg how they might be flawed Nevertheless , in its brief, Respondent
renews its due process argument I find Respondent 's argument even less
persuasive now than when originally made I
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours - Employees of both firms were paid once a week
on the same day.
Although it was not mandatory to do so, approximate-
ly 80 percent of -the Farrand Park and Neighborhood
employees wore uniforms bearing Neighborhood's name
on the breast pocket. All employees were required to
have `work passes . invariably bearing Neighborhood's
name to identify them when 'entering the gates of certain
facilities, particularly various Chrysler plants. No witness
ever recalled seeing a pass imprinted with the name of
Farrand Park. Much'of the'equipment was marked with
the'initials "N.R:" No' equipment bore the name or ini-
tials of Farrand Park.
The record also contains telling evidence of Farrand
Park's fiscal dependence on Neighborhood. Neighbor-
hood's check register lists a series of payments made for'
"subcontract labor," to Farrand Park ° four times each
month-throughout 1983 and into 1984. With similar con-
sistency, during the same time frame, Farrand Park's
checking account statements reflect deposits four times
each month on a date just prior to paydays, in amounts .-
which,correspond precisely to the Neighborhood with-
drawals (compare G.C. Exh. 43 with G.C. Exhs. 73-79,
90-97). Completing the cycle, one finds that many of the
withdrawals itemized on the Farrand Park checking ac-
count statements 'correspond with checks cashed by em-
ployees on Farrand Park's payroll. (Compare G.C. Exh.
24 with G.C. Exhs. 73-79, 90-97.) , -
B. Obligations Under the Collective-Bargaining
Agreement
Under the terms of the collective-bargaining agree-'
ment, the Respondent was,obliged to report the names of
all new -employees to the Union and to pay them from
their first date of employment in accordance -with wage
scales set'forth'in the labor contract. •
It is difficult to pinpoint the exact hourly wage rate
which Neighborhood paid to employees who were ac-
knowledged union 'members, but some approximations
can be made. Fore example, General Counsel's Exhibit.
22(b) sets forth the wages and hours worked by Windra
Blackmon, the most senior Neighborhood employee and
one of the first to be enrolled in the Union.6 By dividing
the, total, number of hours worked into his monthly
wages for February 1983, it appears that he earned ap-
proximately $7.87 an hour. According to the union con-
tract, Blackmon, who at that time was at the apprentice
II level, should have earned $10.33 an hour. Saunders,
another union member, was earning approximately the
same wage rate as Blackmon in February.1983. Since no
hours were reported to the Union's trust funds for Far-
rand Park employees, it-is impossible•to determine from
business records whether their rates of pay comported
with those set forth in the collective-bargaining agree-
ment. `However, the testimony of Robert White is in-
structive in this regard. Although at the time of his hire,
White was assigned to be a kettlemah and, in fact, per-
formed such work for most of his career with Farrand
6 The hours worked are those which Respondent reported to the
Union's fringe benefit funds
Park, 7 he testified without controvers'ion that 'his wages
were far below the contract rate. For the first month of
his-employment, White earned $5 an hour; this' was
raised to $6 an hour after 31 days. However, the con-
tractual wage rate for probationary employees was $6.55
per hour through May 1983 and, after the probationary
period, junior apprentices were supposed to earn $8.36
an hour.
Soon,after he was hired, White asked Hand about join-
ing the Union; and was given- an evasive reply. About a
month and a half later, White again asked Hand if he
was going to put him in the Union. In White's words,
Hand said something to the effect, "You don't want your
job very long. Just keep talking about the Union." White
reported another conversation in which Hand indicated
that he could not afford to make the payments'required
by the' Union and-that he would have to shut down the
Chrysler-'plant job. Sometime in early 1984 , a union
agent encountered White ' at a jobsite and told him he
would ' have to join the Union if he wished to continue
working. Shortly thereafter, White filled out a form for
union membersliip` and Respondent entered- his name on
reports to the Union's fringe benefit funds. At the same
time , White began receiving checks drawn on Neighbor-
hood at a rate of pay which computes, to $6.70 an hour.
Article VII of the collective-bargaining 'agreement re-
quired overtime pay of time and one-half for the first 2
hours worked- beyond the regular 8-hour 'day and time
and one-half for the first 8 hours on Saturdays. The Gen-
eral Counsel's 'Exhibits 80-89 show that both Farrand
Park and Neighborhood employees worked a consider-
able amount of overtime. Blackmon, for example, accu-
mulated overtime on 14 separate days and on 2 Satur-
days in October -1983. During the same month, Dennis
Pinckley worked a minimum of 9 hours on 7' weekdays
and on 2 Saturdays. Even if Respondents' contention
that a one-half hour ,lunch period should be deducted
from the total hours worked is correct, the record never-
theless indicates that 'many employees worked more than
8-1/2 hours on many' days and, thus, still were entitled to
overtime pay in accordance with the collective-bargain-
ing agreement .8 Yet, the employees testified unequivo-
cally that on no occasion did they receive the overtime
wages due to them In fact, on several occasions when
they questioned Hand about the failure to receive over-
time compensation, he shrugged off their inquiries re-
sponding either by promising that such payments would
be forthcoming'at some unspecified future time or, more
candidly, that they should not expect to receive overtime
at all.
By virtue of the collective-bargaining agreement,
Neighborhood agreed to • contribute to various fringe
benefit funds;'one of which was a vacation holiday fund
on which, employees could draw. In July 1983, several
Neighborhood employees questioned Union Business
Agent 'James Corwin about shortfalls in the amounts
they believed were. due as vacation benefits. After re-
7 "Kettlemanis a 'job classification expressly covered by the Roofers
collective-bargaining agreement
a The agreement provides for paid lunch penods where there are two
ormore shifts, but is silent on this matter where there is only one shift.
NEIGHBORHOOD ROOFING - 86-'
viewing the matter, Corwin determined that Neighbor-
hood had not contributed the requisite amounts . Then,.in
the fall of 1983, the same employees brought still another
matter of concern to the business agent 's attention, in-
forming him that they had received paychecks drawn on
Farrand Park' rather than on Neighborhood. No paystubs
accompanied these checks so that they were unable to
determine if sums had been deducted for union dues.
Apparently Hand learned that complaints about the
Farrand Park checks were filed with the Union for he
asked employee Jones if he had been the one to inform
and then told him that he took the disclosure "personal-
ly." During the same period of time that the employees
were expressing these concerns, Hand told Blackmon,
Artman, and Jones that he would have to go out of busi-
ness by the end of November because of the Union's de-
mands on him. He suggested that the employees start
looking for other work.
In mid-November, Hand held an early evening meet-
ing at his home attended by the more senior employees-
Blackmon , Saunders , Jones , Tuttle, and Thomas.9 Hand
again expressed his displeasure that the employees had
circumvented him by going to the Union. After inviting
the employees to express their gripes, some complaints
were aired. Directing his remarks particularly to Saun
ders, Jones, and Blackmon, he said he would pay their
union wages , dues, and benefits if they would agree not
to promote union membership among their 7 to 10 co-
workers. The employees did not acquiesce to Hand's re-
quest since, in their view, he was obliged to abide by the
labor agreement whether or not they encouraged union
membership among their fellow employees.) o
C. The Layoffs and Failure to Rehire
At the end of the day on February 29, 1984, Hand ad-
vised Blackmon, Jones, Saunders, and White that the fob
they were working on was finished. When, in accord-
ance with company practice, they telephoned Hand that
evening to inquire about their next assignment , he told
them no work was available. Each of these men contin-
ued to' call Hand for varying periods of time ranging
from several weeks to 5 months. Hand repeatedly told
them that there was no work. Hand was not altogether
candid, however, for the record shows that Neighbor-
hood continued to do business throughout the spring and
summer of 1984. In fact, on the Friday immediately fol-
lowing the February 29 layoff, while White was at the
Prairie Street office to collect his paycheck, he observed
a number of employees with whom he previously had
worked leaving fora job. Further, invoices introduced
into evidence show that at least two customers contract-
ed with Neighborhood for work to be performed from
March through July. Other records also show that there-
were eight employees (including Thomas),on Respond-
ents ' payrolls for that same period. Of the four employ-
ees laid off on February 29, only Saunders was rehired
just 3 weeks before the hearing commenced in this case.
9 Pinckley was invited but did not attend
10 The above narrative of the meeting at Hand's residence is based on
a compilation of the uncontroverted and credited testimony of the Gener-
al Counsel's witnesses - -
Although the other - three employees had experienced
layoffs in prior years, apparently for business reasons,
they always were returned to work after a week or two
had elapsed.
IV. DISCUSSION
A. Respondents are a Single Employer
The threshold question in this case is whether Neigh-
borhood Roofing and Farrand Park Services are a - single
employer. It is well settled that a resolution of that ques-
tion turns on the presence of facts showing (1) common
ownership, (2) common management, (3) centralized con-
trol of labor , relations and (4) integration of operations
between two or more nominally independent employers.
Radio Union v. Broadcast Service, 388 U.S. 255 (1964);
Don Burgess Construction, 227 NLRB 765, 773 (1977),
enfd. 596 F.2d 378 (9th Cir. 1979), cert. denied 444 U.S.
940'(1979). Although no single criterion is controlling,
nor must all four be present, the last three factors listed
above generally are accorded greater weight. Don Bur-
gess Construction, supra, 227 NLRB at 774.
It is true that no evidence of common ownership is set
forth in the record, but that is the only hallmark of a
single employer relationship which is absent here. There
is more than enough evidence establishing the presence
of the three remaining criteria to compel the conclusion
that Neighborhood and Farrand Park are a single em-
ployer.
The record, as described above, fully documents the
fact that Kenneth Hand Jr. was the overseer of the daily
operations of both companies. Regardless of whether em-
ployees were on the Neighborhood or Farrand Park pay-
rolls, Hand was the single person who hired them; he de-
termined when and where they should report -to work,
supervised the manner in which they performed their
jobs, and terminated them. He' controlled their starting
wages, and decided not to pay them overtime wages. He,
also was in a position to adjust grievances since he invit-
ed employees of both companies to his home for a meet-
ing and solicited their complaints.' Given the relatively
small size of these businesses and the extent-of Hand's
powers, it is no exaggeration to conclude that he was
manager,. labor relations director, and supervisor rolled
into one. -
The record also contains abundant evidence that Far-
rand Park was wholly the fiscal creature of Neighbor-
hood. Neighborhood was the only source of Farrand
Park's income and, as such, the only source of funds for
salaries paid to Farrand Park employees. Employees may
have received Farrand Park checks but, they were listed
on Neighborhood invoices and worked for extended pe-
riods of time with employees on Neighborhood's payroll
doing work covered by the Roofers collective-bargaining
agreement. In fact, apart from its name, Farrand Park
appears to' have no distinct identity; rather, it seems to
have been little more than a paper entity which the Re-
spondents manipulated to evade complying with the col-
lective-bargaining agreement. See Appalachian Construc-
tion , 235 NLRB 685 (1978); -Don Burgess Construction,
supra.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Neighborhood and Farrand Park Services -
Employees Constitute an Appropriate Unit
Even where, as here, two businesses are found to con-.
stitute a single employer, a separate question is posed as
to whether a collective-bargaining agreement to which
one of the employers is signatory is equally applicable to
the other. As the Supreme Court stated in South Prairie
Construction Co. v. Operating Engineers (Peter Kiewit Sons'
Co.), 425 U.S. 800, 805 (1976):
[A] determination that two affiliated firms constitute
a single employer "does not necessarily establish
that an employerwide unit is appropriate, as the fac=
tors which are relevant in identifying the breadth of
an employer's operation are not conclusively deter-
minative of the scope of an appropriate unit." [Cita-
tions omitted.] _
On remand from the Supreme Court, the Board relied
upon the following criteria in determining that two sepa-
rate units were appropriate in Peter Kiewit Sons' Co., 231
NLRB 76, 77 (1977):
... the bargaining history; the functional integra-
tion of operations; the - difference in the types of
work and the skills of employees; the extent of cen-
tralization of management and supervision, particu-
larly in regard to labor relations, hiring, discipline,
and control of day-to-day operations; and the extent
of interchange and contact between the groups of
employees. . -
It would be redundant to review once again the evi-
dence in this case which proves that under the Kiewit cri-
teria the employees- of Neighborhood and Farrand Park
should be included.in the same bargaining unit. Suffice it
to say, the record shows that control of labor relations
and daily operations was wholly centralized in Hand; the
degree of interchange and contact among the workers
was so extensive as to negate the notion that there were
two separate and definable groups of employees." In
short, I find that a single unit encompassing roofing em-
ployees of both Respondents is appropriate here.
In its answer, Respondents baldly assert that the Far-
rand Park employees were engaged in business oper-
ations which differed from Neighborhood's. However,
Respondents presented no proof to support' these asser-
tions. By declining to submit any evidence, Respondents
leave uncontroverted documentation showing that
Neighborhood supplied Farrand Park's income; that em-
ployees were sometimes paid with Neighborhood checks
and at other times with those of Farrand Park; that per-
sons designated on payroll ledgers as Farrand Park em-
ployees were shown on Neighborhood Park invoices
performing commercial roof repair work, and that
Neighborhood's employees worked side by side with
Farrand Park employees at, the same tasks under the
same, supervision. Given the compelling case presented
" Of course, there is no bargaining history for Farrand Park since that
Company was established purposely as a nonunion firm . However, the
absence of such a history does not negate a finding that a single unit is
appropriate here See Peter Kiewit Sons , supra at 77 '
by the General Counsel and the Charging Party, Re-
spondents' silence on these matters warrants an inference
that no evidence exists to sustain the naked position set
forth in their answer. See St. Regis Paper Co., 247 NLRB
745 (1980). 12
Respondents' silence in light of the weight of the evi-
dence also suggests that theirs was not a bona fide
double-breasted operation nor a valid arm's-length sub-
contracting arrangement. As the Board found in Appa-
lachian Construction, 235 NLRB 685, 686 (1978). There,
"the only real difference, other than the name ... was
the absence of union labor. The-subcontract was nothing
more than an attempt to deceive and thereby circumvent
their obligations under the labor agreement." 13 See Don
Burgess Construction, supra , 227 NLRB at 765, where the
Board ruled that when an employer deceptively forms a
related company to deprive bargaining unit employees of
the benefits of a collective-bargaining agreement, that .
agreement will be extended to employees of the related
nonunionized firm.
Based on all of the foregoing, I conclude, as the Board
did in Better Building Supply Corp., 259 NLRB 469 fn. 2
(1981): -
[T]he operations of both Respondents and the work
of their employees have been so intertwined as to
render appropriate only a unit of employees of both-
Respondents and to preclude a finding of separate
appropriate units. -
Accordingly, I find that Neighborhood Roofing and
Farrand Park Services violated Section 8(a)(5) and (1) of
the Act by refusing to implement and abide by the terms
and conditions of the collective-bargaining agreement by
which both were bound. See DMR Corp., 258 NLRB
1063 fn. 3 (1981). In particular, based on undisputed testi-
mony, it is clear that the Respondents did not pay any of
their employees overtime wages as required by the col-
lective-bargaining agreement. The extent to which Re-'
spondents deprived Farrand Park employees of wages
commensurate with union scale is less clear for no docu-
mentation exists showing their hourly wage rates. How-
ever, since Respondents -created Farrand Park to,avoid
the expenses connected with union organization, and
given Robert White's specific testimony that he was paid
well below the contractual wage rate, it is fair to infer
that. other nonunion employees were similarly underpaid.
12 In a similar vein, Respondent also complains that the General Coun-
sel failed to prove that Farrand Park workers were not independent con-
tractors The General Counsel did establish that the Farrand Park em-
ployees shared the same working conditions as Neighborhood personnel.
There is nothing in this record which suggests they were independent
contractors Cf Checker Cab Co., 273 NLRB 1492 (1985). Once the Gen-
eral Counsel presented sufficient evidence to establish their status as em-
ployees, it was incumbent on Respondent to come forward with any
countervailing evidence Having failed to do no more than rail against
the General Counsel's substantive case, Respondents may not now take
advantage of their own omissions
13 Hand's damaging statements about union costs, his efforts to per-
suade the employees not to encourage union membership among cowork-
ers, and his distress that employees brought Farrand Park paychecks to
the Union's attention, all suggest that he attempted to conceal the exist-
ence of the Company which he had formed from the Charging Party.
NEIGHBORHOOD ROOFING 869
Reliable wage and hour records .for Neighborhood 'em- ment rather than negotiating directly with their exclusive
ployees also leave much to be desired . However , cou- bargaining representatives , Respondents committed sepa-
pling testimony with -some rough calculations based on rate violations of Section 8 (1) of the Act . See Admiral
available data , it is possible to conclude that Blackmon , Merchants Motor Freight , 265 NLRB 134,-135 ( 1982).
Jones, - and Saunders . were not paid in accordance with" -
contractual wage rates: It is unnecessary at this juncture ' . D. Violations of Section 8(a)(3) and (1) of the Act
to determine precisely how much they are due , for such
matters ' are better resolved at the compliance stage of '
The complaint does not allege that the layoffs of
this proceeding . Blackmon , Jones , Saunders ,
and White on February 29,
1kl
C. Independent Violations of Section 8(a)(1)
Paragraph 12 of the complaint alleges that , at a No-
vember 10 meeting , Respondents unlawfully interrogated
employees , threatened to go out of business if they con-
tinued to seek union assistance , and negotiated directly
with employees, bypassing their exclusive collective-bar-
gaining agent . Paragraph 13 further alleges that on other
occasions , Respondents threatened employees with job
loss if they continued to engage in protected , concerted
activities.
Uncontroverted and credible record testimony sup-
ports each of the above allegations . Thus, at the meeting
held in his home , Hand - asked the employees who had
complained to the Union about receiving Farrand Park
checks. He expressed ' displeasure that any employee
would have done so , thereby indicating that his inquiry
was not a harmless matter born ' of idle curiosity. When
Hand posed this same question to Jones ,- on a previous
occasion , Jones refused to answer -knowing that the
union business agent had pledged to keep the employees'
identities confidential. • The employees '- reluctance to re-
spond to Hand 's interrogation at the meeting indicates
that they continued to be wary of his reaction to their
union involvement.
Respondent submits that because the meeting was in-
formal and because the employees felt familiar enough
with Hand to borrow money from him, his questioning
of them could not have been coercive. Respondent fails
to perceive the subtle nature of coercion . The fact is that
the employees were summoned to an after -hours meeting
by the man who had threatened to destroy their liveli-
hoods and had the power to do so . His efforts to uncov-
er those who disclosed his wrongdoing to the Union car-
ried with it the suggestion of-retaliation . Thus , regardless
of Hand 's true motivation or whether his interrogation
resulted in real intimidation , there can be no , doubt that
his conduct reasonably --tended to interfere with and re-
strain the employees ' free exercise of Section 7 rights.
See Waco, Inc., 273 NLRB 746 (1984).
Respondents did not deny that Hand made any of the
oyees ac now -1984, were improper . Indeed , the emp
edged that the job on which they were , then working
had come to a halt on the date . What is at issue here is
whether Respondent 's failure to recall them was unlaw-
ful.
After their layoffs , each of the affected employees tele-
phoned Hand for weeks and even months to inquire
about reemployment. Hand repeatedly told them that
there was no work available. With the exception 'of
Saunders who was recalled shortly before the hearing,
none of them was rehired . However , the evidence, as
discussed above , established that Respondents continued
in business after February , 29. Moreover , the General
Counsel proved that the discriminatees formed the core
of the Union 's constituency in Respondents ' work force;
that they were the ones who insisted on being paid at
union scale and who were subjected to threats of job loss
for their efforts . In these circumstances , an inference is
clearly warranted that Hand refused to recall these em-
ployees out of a desire to eliminate persons who insisted
on adherence to the terms of the collective -bargaining
agreement and who had exposed Farrand Park 's oper-
ations to union scrutiny . Thus, the General Counsel and
the Charging Party have successfully established a prima
facie case that the Respondents ', failure to re-engage
these employees .was for illicit reasons. Wright Line, 251
NLRB 1083 ( 1983), enfd . 662 F . 2d 899 ( 1st Cit . 1981),
cert . denied 455 U.S. 989 (1982).
At this juncture , the burden of proof shifts to the re-
spondent to establish that the challenged conduct would
have occurred even in the absence of the employees'
protected activity . Wright Line, supra . Respondents
assert that their business records show there was insuffi-
cient ,work for the discriminatees. Contrary to Respond-
ents' assertion , the records demonstrate that , while busi-
ness may have declined , it did not cease . Respondents
continued operations throughout the spring and summer
of 1984, employing eight workers most of whom had less
seniority than the four discriminatees and two of whom
were hired after the layoffs occurred.
threats regarding job loss or termination of operations - ^ - Respondents also suggest that it was contrary to
which were attributed to mm nor did they show that
these threats stemmed • from legitimate economic con-
cerns . Few statements could be more coercive than those
like Hand 's which threaten employees ' job security. Ac-
cordingly , I find that Respondent violated Section 8(a)(1)
of the Act by such statements.
As detailed above , Hand promised to pay employees
what was due them under the collective -bargaining
agreement if they agreed not to tout the Union to their
coworkers . By attempting to deal directly with the em-
ployees about the terms and conditions of their employ-
Hand 's practice to initiate 'calls to employees , regarding
reemployment, suggesting thereby that it was the work-
ers who should be faulted for failing to contact Hand.
This argument - does not explain why Hand falsely told
the employees that there was no work available while
they were faithfully calling him . If these were normal
circumstances , Respondents ' telephone policy would not
be subject to criticism . However, it may not be used to
shield conduct tainted by illegal motives . To right its
wrongful actions , Respondents were obliged to act af-
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmatively. and seek out the laid-off employees for reem-
ployment as work became available. 14 • . - I
In conclusion, the Respondents have not provided a--
reasonable explanation for refusing to rehire the. employ-
ees and have not demonstrated that these employees
would have been excluded even if they had' not engaged
in protected concerted activity. Accordingly, the Re-
spondents have failed to overcome the showing made by
the General Counsel and the Charging Party that the re-
fusal to recall Blackmon, Jones, Saunders, and White
violated Section 8(a)(3) and (1) 'of the Act. See All Kind
Quilting, Inc., 266 NLRB 1186, 1195 (1983); Rushton
Mercier Woodworking Co., 203- NLRB 123 (1973), enfd.
mem. 502 F.2d 1160 (1st Cir. 1974).
CONCLUSIONS OF LAW
1. Kenneth L. Hand, Sr., d/b/a Neighborhood Roof-
ing and Contracting and Kenneth L. Hand, Jr. and
Sylvia Hand, d/b/a Farrand Park Services are employers
within the meaning of Section 2(2) of the Act, engaged
in business affecting commerce within the meaning of
Section 2(6) and- (7) 'of the Act and collectively consti-
tute a single employer within the meaning of the Act.
2. Local No. 149, United Union of Roofers; Water-
proofers and-Allied Workers,'AFL-CIO is a labor orga-
nization within' the meaning of Section -2(5) of the' Act.
3. At all .times material herein the Union has been the
exclusive collective-bargaining representative of employ-
ees in the unit described below within the meaning of
Section 9(a) of the Act: -
All 'journeymen, and apprentice roofers and all
other employees engaged in roofing work, including
kettlemen, employed by Neighborhood Roofing and
Contracting and Farrand Park Services but exclud-
ing all clerical employees , guards and supervisors as
defined in the Act. -
4. By failing and refusing to recognize and bargain
with Local No. 149, United Union of Roofers, Water-
proofers and Allied Workers, AFL-CIO as the exclu
sive collective-bargaining representative of all of its roof-
ing employees as defined in the collective-bargaining
agreement , between the Union and Respondents, includ-
ing those employed by Respondent Farrand Park Serv-
ices, Respondents have violated Section 8(a)(1) and (5) of
the Act.
5. By refusing to apply the terms and conditions of the
collective-bargaining agreement with the Union to all
nonsupervisory employees within the single appropriate
unit who are employed by Farrand Park Services and
Neighborhood and by not paying the applicable hourly
wage rates and overtime rates 'to such employees, Re-
spondent has violated-Section 8(a)(5) and (1) of the Act.
14 If Respondents did 'not have proper telephone numbers for these
employees, the Union 's assistance could have been enlisted
6. By refusing • to recall employees in retaliation for
their engaging in protected concerted activities pursuant
to the collective-bargaining agreement Respondent has
violated Section 8(a)(3) and (1) of the Act.
7.'-By threatening employees with job loss and termina-
tion of the Respondents'- business if, they -continued to
seek the Union's assistance to obtain contractually guar-
anteed wage rates and benefits, Respondents have violat-
ed Section 8(a)(1) of the Act.
8. By coercively interrogating employees about seek-
ing the Union's assistance, Respondents have violated
Section 8(a)(1) of the Act.
9. By negotiating directly with employees about terms
and conditions of employment in return for their agree-
ing not to encourage unionism among other employees,
Respondents have violated Section 8(a)(1) and (5) of the
Act.
10. The aforesaid. unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that. Neighborhood Roofing and Far-
rand Park Services have engaged in certain unfair labor
practices, I shall recommend, they be ordered to cease
and desist therefrom and that they take certain affirma-
tive action to effectuate the policies, of the Act. Specifi-
cally, they shall be ordered to honor the terms of the
current collective-bargaining agreement and to apply the
terms of that agreement to all employees in the appropri-
ate unit described above. The Respondents also shall be
ordered to make whole all employees for any losses sus-
tained by.them by virtue of the failure to apply the terms
and conditions of the collective-bargaining agreement to
them from the date of their hire. - -
In -addition, Respondent shall be ordered to make
whole Windra Blackmon, John Saunders, Ronald Jones,
and Robert White by paying to them amounts which
they otherwise would have earned,had they not refused
to recall them from layoff -because of their--activities on
behalf of Local No. 149, United Union of Roofers, Wa-
terproofers, with interest to be paid on the amounts
owing and to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).'5 Further, Respond-
ents will be ordered to cease and-desist from engaging in
coercive interrogation, from threatening employees with
layoff or with closure of the business and with attempt-
ing to deal directly with the employees rather than with
their exclusive bargaining representative. Finally, Re-
spondent shall be ordered to recognize and, upon re-
quest, bargain collectively with. Local Union No. 149 as
the exclusive bargaining representative . of all their roof-
ing employees. -
[Recommended Order omitted from publication.]
is See generally Isis Plumbing Co, 138 NLRB 716 (1962), enf. denied
on different grounds 322 F 2d 913 (9th'Cir 1963)