Home Roof Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 910 (N.L.R.B. 1974)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Home Roofing Co ., Inc. and United Slate, Tile and
Composition Roofers, Damp and Waterproof
Workers' Association, Local Union No. 137. Case
31-CA-4014
June 24, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On April 30, 1974, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions' to the Administrative Law
Judge's Decision. No exceptions were filed by the
Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Home Roofing Co.,
Inc., Santa Barbara , California , its officers , agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
I In its answer to the complaint , the Respondent denied , for lack of
information or belief, that its annual inflow exceeded $50,000. In finding an
inflow in excess of $50,000, the Administrative Law Judge relied upon an
inference from Respondent' s gross revenue , and the General Counsel
excepts to the Administrative Law Judge's failure to make such a finding on
the basis of evidence in the record. At the hearing , Respondent amended its
answer to admit an inflow in excess of $50,000. Accordingly, the
Administrative Law Judge's apparent inadvertence is hereby corrected and
we find, based on Respondent 's amended answer to the complaint, that its
annual inflow exceeds $50,000.
DECISION
STATEMENT OF THE CASE
IRVING ROGOSiN , Administrative Law Judge: The
complaint , issued November 26, 1973, alleges that since
about July 1973 and continuously thereafter, Respondent
I Designations herein are as follows: The General Counsel, unless
otherwise stated or required by the context, his representative at the
hearing ; Home Roofing Co., Inc., Respondent or the Employer; United
Slate , Tile and Composition Roofers, Damp and Waterproof Workers'
Association , Local Union No. 137, the Charging Party or the Union; the
has refused to bargain with the Union as the exclusive
representative of employees in an appropriate unit, and has
unilaterally, and without bargaining with the Union,
changed the terms and conditions of employment of all
unit employees, by refusing to abide by the provisions of
an existing collective-bargaining agreement concerning
wage increases, contributions to the health, welfare,
pension trust funds, and for other fringe benefits, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.'
Respondent's answer generally admits the procedural
and jurisdictional allegations of the complaint regarding its
gross revenues for the fiscal year ending 1973, but denies,
for lack of information or belief, the volume of inflow of
goods from points outside the State of California; denies,
on the same grounds, that it is an employer engaged in
commerce and in a business affecting commerce; denies
that it ever signed a collective-bargaining agreement,
except for a 30-day interim agreement, which expired
about September 27, 1972; admits the status of the Union
as majority representative of the unit employees, and
generally denies the remaining allegations of the com-
plaint. Further answering, Respondent alleges that it has
"never unilaterally refused to arbitrate or bargain with the
Union and refers to and incorporates by reference that
`HISTORY OF REQUESTS FOR MEETINGS FROM MAY 23, I97A,
and DOCUMENTATION OF GRIEVANCES AND GRIEVANCES
PROCEDURES"' filed with said answer, "and that
`SUPPLEMENTAL HISTORY OF ARBITRATION PROCEDURES from
August 3, 1973, to October 31, 1973."' By amendment to its
answer , filed January 3, 1974, Respondent substituted "a
certain one-year interim agreement which expired about
August 27, 1973," for the "30-day interim agreement,"
referred to in its original answer. Further answering,
Respondent alleges that issues relating to the term of the
agreement , and other employer grievances, are the subject
of arbitration pending between Respondent and the
Union. Respondent further alleges that, although it has at
all times agreed to be bound by the results of arbitration
upon all issues, including the issue of execution of the
collective-bargaining agreement, the Union has, at all
times to and including January 3, 1974, unilaterally
repudiated said arbitration proceedings and has refused to
proceed thereunder, as shown by an exchange of corre-
spondence between Respondent and the Union, annexed
to the amendment to the answer and incorporated therein
by reference.
Pursuant to due notice, a formal hearing was held before
me from January 7 to 10, 1974, both inclusive, at Santa
Barbara, California. The General Counsel and Respondent
were represented by counsel. All parties were afforded full
opportunity to be heard, to examine and cross-examine
witnesses , to introduce oral and documentary evidence
relevant and material to the issues, to argue orally and to
file briefs and proposed findings of fact and conclusions of
law.2 The parties were granted until January 30, 1974, to
file briefs and proposed findings of fact and conclusions of .
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519, 29
U.S.C. Sec. 151, et. seq. ), the Act; the National Labor Relations Board, the
Board . The charge was filed and served on October 3, 1973. Unless
otherwise indicated , all events occurred in 1973.
2 Both counsel reserved oral argument for the conclusion of the
211 NLRB No. 137
HOME ROOFING CO., INC.
law. Briefs were timely filed by the General Counsel and
Respondent, but no proposed findings of fact or conclu-
sions of law have been filed by any of the parties.
Upon the entire record in the case and based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges that Respondent, a California
corporation, with its principal place of business in Santa
Barbara , California, is engaged as a roofing contractor in
the building and construction industry.
The complaint also alleges that Pacific Co., Inc., therein
called Pacific, a California corporation, with its principal
place of business in Santa Barbara, California, is engaged
in the sale at wholesale of industrial tools and equipment.
The complaint further alleges that the businesses of
Respondent and Pacific have common ownership, are
located at the same place of business, with the labor
relations policies of both businesses being formulated and
carried out by the same individuals, and that Respondent
and Pacific constitute a single employer for purposes of the
Act. Respondent's answer, apart from denying that Pacific
is a corporation, tacitly admits the remaining allegations of
this paragraph of the complaint.
The complaint further alleges that Respondent and
Pacific, as a single employer, annually derive gross
revenues in excess of $400,000, and, as such single
employer, receive annually goods valued in excess of
$50,000 directly from suppliers located outside the State of
California or from suppliers within the State of California
receiving such goods in substantially the same form
directly from suppliers outside the State of California.
The complaint further alleges that, at all times material
herein , Respondent and Pacific have together constituted
an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.3
Respondent's answer admits that in the last fiscal year
ending April 1, 1973, both companies derived gross
revenues exceeding $400,000 but denies, for lack of
information or belief, that it received goods valued in
excess of $50,000 directly from suppliers located outside
the State of California. Respondent denies, upon informa-
tion and belief, that the companies constitute an employer
engaged in commerce and in a business affecting com-
merce within the meaning of the Act. Respondent offered
no evidence, however, to dispute the allegations concerning
its direct or indirect inflow of goods or services and, on the
basis of Respondent's volume of business it is reasonable
to infer that Respondent's annual inflow amounted to at
least $50,000.
On the basis of the foregoing, and upon the entire record,
including the limited admissions in Respondent's answer, it
companion cases of Capitol Roof & Supply, Company, Inc., 3l-CA-4003 and
-3878, involving many of the same issues , heard immediately following the
conclusion of the instant case.
3 No evidence was offered to show that Pacific was otherwise directly
911
is hereby found that, at all times material herein,
Respondent has been an employer within the meaning of
Section 2(2), engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Slate , Tile and Composition Roofers, Damp and
Waterproof Worker's Association , Local Union No. 137,
the Union herein, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent executed a collective-bargain-
ing agreement with the Union on or about November 2,
1972, effective from August 27, 1972, to August 27, 1974,
or subsequently became a party to or bound by said
agreement.
2. Whether , since about July 1973 , Respondent has
refused to bargain with the Union as exclusive representa-
tive of the employees in an appropriate unit by:
(a) Refusing to abide by the terms and provisions of said
collective-bargaining agreement concerning wage increas-
es, contributions to the health , welfare, pension trust funds,
and for other fringe benefits; and
(b) Unilaterally, without notice to or negotiations with
the Union, changing the terms and conditions of employ-
ment of all unit employees by refusing to grant or
discontinuing retroactive wage increases and such fringe
benefits during said period.
3. Whether this is a proper case for the application of
the Board's policy of deferral to arbitration.
B. Preface
Prior to 1972, various roofing contractors, including
Respondent, doing business in Santa Barbara and San Luis
Obispo counties, California, entered into a collective-
bargaining agreement with the Union, effective from
August 27, 1968, to August 26, 1972. With the approach of
the expiration date of the contract, the Union sought to
negotiate a new contract. When negotiations proved
fruitless, the Union engaged in a strike against the
contractors. As a consequence, a number of contractors
signed interim agreements with the Union, expiring in 30
days or upon the execution of a new collective-bargaining
agreement. Respondent, however, entered into such an
interim agreement for a term of one year, to expire "at
midnight August 27, 1973, or upon the date of an
agreement reached between this Local Union #137 and
the Roofing Contractors of Santa Barbara and San Luis
Obispo counties and other Bituminous, Damp and Water-
proof Enameling Contractors." 4
The agreement provided:
involved in this labor dispute.
A Roger Hall, Respondent 's president , was under the impression that,
like the other contractors, he had only signed a 30-day interim agreement
and apparently so informed his attorney, as appears from Respondent's
(Continued)
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Parties signatory hereto agree that they will
automatically become bound to the terms and condi-
tions of said agreement, if and when said agreement is
consummated between Local # 137 and the Roofing
Contractors of Santa Barbara and San Luis Opisbo
counties and other Bituminous, Damp and Waterproof
Enameling Contractors, hereinafter referred to as the
Employer.
The interim agreement further provided:
It is agreed by both parties signatory hereto that all
conditions existing in the Master Labor Agreement,
known as that agreement entered into between Local
# 137, United Slate , Tile and Composition Roofers,
Damp and Waterproof Workers Association and the
Roofing Contractors of Santa Barbara and San Luis
Obispo counties for the period 1972 through 1973 shall
continue to remain in full force and effect except for
those changes, amendments, or additions to that agree
(sic) as specifically identified and spelled out hereinaft-
er. (All changes, amendments, or additions hereafter
which are identified, by Article and Section shall be
recognized as those Articles and Sections as existing
within the past agreement 1972 - 1973).
The agreement concluded:
Upon the date of [deleted] agreement reached between
this Roofers Local Union # 137 and the Roofing
Contractors of Santa Barbara and San Luis Obispo
counties [and] other Bituminous , Damp and Water-
proof Enameling Contractors, the parties hereto agree
to retroactive pay for hours worked on and after
approval from C.I.S.C. for raises due Aug. 27, 1971, &
Feb. 27, 1972, payable ten (10) days after approval
from the Construction Industry Stabilization Commit-
tee or any other Federal Boards.
Joe Guerrero, business agent, represented the Union in
these negotiations.5 Members of the Union employed by
other contractors who did not enter into interim agree-
ments were, nevertheless, permitted to return to work
under an informal arrangement between the Union and
those contractors.
The copy of the interim agreement introduced in
evidence bears no date, though it is evident from
Guerrero's testimony that it was probably signed by
Respondent early in September 1972, probably September
5 or 6.6
C. The New Master Labor Agreement; Subsequent
Events
Soon afterward , Guerrero met with William Alan Kyle,
original answer . When shown a copy of Respondent's interim agreement by
a Board agent during the pretrial investigation , Hall realized he had signed a
1-year agreement . It was not until after counsel for the General Counsel
supplied Respondent's counsel with a copy of the 1-year interim agreement
that Respondent amended its answer accordingly.
Until about April 1973, Guerrero, a journeyman roofer, acted only as a
part-time business agent . The previous master labor agreement, covering the
period August 27, 1%8, to August 26, 1972, had been negotiated on behalf
of the Union by Richard Botelho , then business agent , who, at the time of
the hearing , was the owner of Nobility Roofing, and a member of the
Jr., the owner of Kyle Roofing Co., Inc., to negotiate a new
master labor agreement .? After reaching an accord with
Kyle, Guerrero had the contract retyped, and met with
Kyle in Santa Ynez, where Kyle became the first roofing
contractor to sign the master labor agreement.
The date appearing opposite the signature of Kyle
Roofing Co., Inc., is November 1, 1972. The signatures of a
total of 11 contractors, including Respondent, appear on a
single page, bearing various dates0between November 1
and November 15, all but the first date designated in
numerals. The date opposite the signature of Respondent,
"Home Roofing Co., Inc., Roger W. Hall," the fourth
signature on the page, appears as "11/2/72." The signature
of Business Agent Guerrero on behalf of Local # 137 bears
no date.8
Despite the appearance of Respondent's signature on the
purported signature page of the master labor agreement,
Respondent denies that it signed the master labor
agreement or that it intended to be bound by it. Although
Respondent does not dispute the genuineness of its
signature, it contends that it signed a detached signature
page at Guerrero's request for the sole purpose of
acknowledging receipt of a copy of the master labor
agreement. According to Hall, Respondent's president,
Guerrero, left two copies of the master labor agreement
with him and because he did not have sufficient copies for
all the contractors, and wished to keep a record of those
who had been supplied with copies, requested Hall to sign
the separate signature page as evidence of receipt of a copy
of the contract. That, Hall testified, was his only reason for
signing the detached signature or "receipt" page.
The master labor agreement introduced in evidence by
the General Counsel, consists of 34 consecutively num-
bered pages . The page immediately following, variously
referred to as the signature or "receipt" page, is numbered
39. This, according to Respondent, demonstrates that the
signature page was not physically attached to the agree-
ment at the time it was signed by Respondent. Guerrero
explained, however, that when the agreement was retyped,
after he had agreed with Kyle to certain modifications,
pages 35 to 38, inclusive, in the original draft were
eliminated and, through inadvertence, the original page 39
was not renumbered.
The signature page of this version of the master labor
agreement does, indeed, contain the statement at the
bottom: "Contractor signatory acknowledges receipt of
copy of Collective Bargaining Agreement effective August
27, 1972." It should be noted, however, that the copies of
this agreement, consisting of 34 pages, with an individual
signature page attached, left with Hall by Guerrero,
contain the identical language at the bottom of that
signature page. That page, which also provided a form
identifying the particular contractor and holder of contrac-
Association, later organized.
6 According to Guerrero's testimony , a similar agreement was signed by
Bill Adams, on behalf of Capitol Roofing & Supply Company, Inc., and
Robert Whitcomb, on behalf of H & H Roofing, the following day.
r According to Guerrero , although Kyle was not necessarily spokesman
for the roofing contractors, he approached him first because the contractors
usually followed Kyle's lead in negotiations with the Union.
8 The record indicates that the dates appearing opposite the signatures of
the contractors were, for the most part, inserted by Guerrero on the dates
shown, or soon afterward, to reflect the approximate date of signature.
HOME ROOFING CO ., INC. 913
tor's license , as well as a place for the Union 's signature,
contained . the same receipt , yet it is obvious that the receipt
was only incidental to the primary purpose of the signature
page . The signature page of the copies of the master labor
agreement produced by Respondent was not signed, nor
was the form completed by Respondent on either copy,
though one copy bears Guerrero 's signature on behalf of
the Union , dated November 7, 1972.
For his part , Guerrero acknowledged that he left two
copies of the contract with Hall several days before
November 2, 1972 , and told him that he would return for
them in a few days . On November 2, Guerrero returned
and told Hall that he had come for the contract . Hall said
that he had not yet read the contract . When Guerrero told
Hall that he needed his signature so that he could submit
the contract to the C .I.S.C. (Construction Industry Stabili-
zation Committee) in Washington , Hall, according to
Guerrero , acquiesced , and signed the contract . Guerrero
then took the signed contract with him , and left Hall with a
copy . According to Guerrero , the multisignature page was
physically attached to the master labor agreement when
Hall signed it, and no reference was made to the receipt at
the bottom of the page.
Hall, on the other hand , denied that the signature page
was physically attached to the master labor agreement
when he signed it, but , on the contrary , insists that, at
Guerrero's request , he signed a single , detached page for
the sole purpose of acknowledging receipt of a copy of the
agreement . Contrary to Respondent's contention that the
"receipt" page contains no indication that it was intended
to serve as execution of the master labor agreement, the
designation at the top of the page identifies it as
"ARTICLE XXIII . Signiture of Parties Affixed ," followed
by the usual in testimonium clause. Although admittedly
erroneously numbered, it appears to follow in sequence the
substantive provisions of the contract and the consecutive-
ly numbered articles , and it is evident that the signature
page constituted an integral part of the contract . That in a
few isolated instances Guerrero may also have secured the
signatures of contractors to separate contracts at later
dates does not require a different result . The majority of
the contractors , all of whom signed the multisignature
page , did not sign individual contracts . The procedure used
by Guerrero in obtaining execution of the master labor
agreement by the contractors on a multisignature page was
substantially the same as that utilized by his predecessor,
Bothelo , acquiesced in by the contractors in the execution
of the previous master labor agreement.
Various contractors , whose signatures appear on the
multisignature page (referred to by Respondent as the
"receipt" page), testified that they , too, signed a detached
page , after being told by Guerrero that he needed their
signatures to establish that they had received a copy of the
contract , and that that was the sole reason they signed.
These contractors were obviously interested parties, in a
position to benefit from the outcome of this controversy.
Most, including Respondent , had been parties to the 1968-
72 master labor agreement, had signed interim agreements,
and were evidently knowledgeable in contract negotiations
in the industry . They were aware that the Union intended
to submit the contract to the C .I.S.C. for approval , and it is
apparent that they acquiesced in Guerrero's efforts to
expedite such approval by permitting him to submit a
single contract containing the signatures of all the
contractors instead of individual contracts for each
employer. Moreover, Respondent 's subsequent course of
conduct and that of the Association , of which it became a
member, suggests , as will later become apparent , that the
defense , that the contractors had merely signed the
signature page to acknowledge receipt of a copy , and not
with the intention of executing or being bound by the
contract, was resorted to as an afterthought in furtherance
of the contractors ' efforts to repudiate and renegotiate the
contract . It is significant that this defense was raised for
the first time in June 1973 , some 10 months after the
effective date of the contract , and 2 months after C .I.S.C.
approval , after the contractors had retained counsel and
formed their Association.
Although the preponderance of the probative evidence,
together with the circumstances surrounding the negotia-
tion of the contract and its eventual submission for
approval to the governmental agency, supports a finding
that Respondent did, in fact , execute or intend to be bound
by the master labor agreement , it is unnecessary to resolve
that issue . The undisputed facts establish that, after
Guerrero obtained written approval of the wage and fringe
benefit increases and notified Respondent and the other
contractors , Respondent began paying its employees the
retroactive wage increase and making the required contrib-
utions to the trust fund . Respondent's contention that, in
making these payments , it was merely abiding by the terms
of the interim agreement , is not supported by the record. It
will be recalled that Hall had been under the impression
that, like other contractors , he had merely signed a 30-day
interim agreement , which expired by its terms at the end of
that period or upon the execution of a new master labor
agreement. Not until Hall was informed by a Board agent,
during the pretrial investigation , did he realize that he had,
in fact , signed a 1-year interim agreement , expiring August
27, 1973 (or upon execution of a new agreement). It is,
therefore, apparent that Respondent was not aware, when
it put into effect the retroactive wage increases, that these
increases may have been required under its interim
agreement . Respondent's attempted reliance on this
interim agreement as a basis for granting the increases can
only be regarded as an afterthought contrived to bolster its
position that it was not acting pursuant to the master labor
agreement . Clearly, the C .I.S.C. did not act on the basis of
anything but the August 27, 1972, agreement , as shown by
its official approval.
It is , therefore, found that , regardless of whether it signed
the multisignature page of the master labor agreement with
the intention of executing the contract or being bound
thereby, or did so solely for the purpose of acknowledging
receipt of a copy of the contract , by its subsequent
conduct , particularly in complying initially with the
retroactive wage and fringe benefit increases , Respondent
affirmed and ratified the master labor agreement and
became bound by its terms.
Guerrero submitted the master labor agreement, contain-
ing the provisions for wage increases and fringe benefits
retroactive to August 27, 1972, to the C .I.S.C. On April 9,
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973, that agency issued its formal approval of the
"economic adjustments " of 54 1 /2 cents to $8.325 , to take
effect August 27, 1972. (Proposed economic adjustments,
involving changes in mileage and subsistence allowances,
hazard pay premium increase and roll roofing premium
were returned without approval .) The C.I.S.C. retained
jurisdiction with regard to scheduled increase of 58 cents
on August 27, 1973.9
On receipt of approval from the C.I.S.C., Guerrero
distributed copies to the contractors , and they proceeded
to pay the new wage scale for journeymen and apprentices.
Some of the contractors , however , though not Respondent,
refused to pay the wage increase retroactively to August
27, 1972.
Early in May , a group of contractors met with Guerrero
at Kyle 's place of business in Santa Maria in an attempt to
clarify the situation concerning the allocation of the wage
increase , as well as the status of foremen and apprentices
under the wage increase . Guerrero was accompanied by
Richard Visueta and Jess Chavez, union members. Kyle,
Adams , De LaTorre and Botelho were the contractors
attending . After some discussion , Kyle told Guerrero that
the contractors would like to caucus briefly and excused
themselves . When the meeting was resumed , Kyle told
Guerrero that the contractors had been unable to settle
anything and that he would communicate with the Union.
By letter, dated May 23, 1973, hand-delivered by
Botelho, Attorney Charles A. Kent notified Guerrero that
he represented the Association ,10 requested a joint meeting
with the Union, and demanded certain changes in the
"contract of all association members" in specified respects.
Referring to the collective -bargaining agreements "alleged-
ly" executed with the association contractors , Kent's letter
protested that the Union had violated the "Favored
Nations Clause," also referred to in the record as the "Fair
Nations Clause," contained in the Agreement,tt by
permitting two contractors (County Roof Service and Kyle
Company , of San Luis Obispo) to commence the wage
increase on April 26, 1973, instead of August 27, 1972, the
retroactive date.
The letter also took the Union to task for threatening
proceedings before the Labor Commission [of the State of
California ] to enforce payment of the retroactive wage
increases and for engaging in an "unauthorized" strike,12
in violation of the no-strike provisions of the contract, to
compel payment of said sums . Kent also alluded to alleged
violations of the collective -bargaining agreement, to be
discussed at the proposed meeting , with a demand for
production of all original contracts with members of the
Association . Asserting other union violations by disregard-
ing the grievance procedure and hiring hall practices, as
well as other unspecified matters , the letter stated that all
these matters should be renegotiated in the proposed
meeting.
It should be noted that, apart from referring to
collective-bargaining agreements "allegedly" executed, the
letter did not expressly deny execution of the agreements
6 On May 29, 1973, the C.I.S.C. issued a further order approving an
economic adjustment of 58 cents to $8.905 , effective August 27, 1973.
1O The Association was not formally organized until July 6.
^1 "Article VIII, Conflicting Agreements , B. No Contractors signatory
by the contractors. Nor was there any intimation that the
contractors had merely signed an acknowledgement of
receipt of a copy of the contract. On the contrary, the letter
protested the Union' s alleged discriminatory application of
the favored nations clause and other violations of the very
agreement the contractors were challenging.
On May 24, Eugene Miller of the Union's firm of
attorneys, responded to Kent's letter. Rejecting the
contractors ' charges, Miller notified Kent that his clients
and all other employers signatory to the collective-bargain-
ing agreement would be held to the retroactive wage
increases. Regarding the recent strike, Miller directed
attention to the provision of the master labor agreement,
granting the Union the right to strike or picket in the event
of nonpayment of wages or fringe benefits and asserted
that the 1-day work stoppage, in furtherance of that
demand , was specifically permitted by the collective-
bargaining agreement. The letter concluded that the Union
would resort to whatever legal action was necessary to
compel payment of wages and fringe benefits retroactive to
August 27, 1972.
On June 19, in a 4-page, single-spaced letter, Kent
replied, explicitly asserting for the first time, that certain of
the contractors had never signed a collective-bargaining
agreement, but had merely signed a separate "receipt
page," acknowledging receipt of a copy of the proposed
contract, "even though they had no immediate objection to
the pay increases and other benefits and were willing to
start paying them without a signed agreement." Contend-
ing that there were other discrepancies in the collective-
bargaining agreement itself, as well as in the submissions to
the C.I.S.C., and that there were other problems to be
solved in addition to those raised in his letter of May 23,
Kent proposed that the entire agreement be renegotiated.
Kent added that if attempts to resolve these problems by
negotiations were unsuccessful , he was authorized to file an
action in the superior court for a declaratory judgment to
establish that there were no collective-bargaining agree-
ments in existence as to some contractors, and to set aside
and rescind any contracts which may have been in effect as
to others. Contending that Guerrero had sent a corrected
submission for approval to the C.I.S.C., which contained
erroneous wage information without the concurrence of
the contractors , Kent asserted that the "entire matter"
should be renegotiated and resubmitted to that agency. He
further contended that wage rate schedules submitted by
Guerrero to the employers were inconsistent with the
action taken by the C.I.S.C. and that, although some
employers had been paying wage rates in accordance with
Guerrero's schedules, others had declined to do so on the
ground that the wage rates that they had been paying were
in excess of those approved by the agency and that this
might subject them to possible penalties. Kent renewed
claims made earlier and further asserted that, since some
contractors had not signed the collective-bargaining
agreement, their contributions to the Health and Welfare
Fund might have been illegal and that disbursements of
hereto shall be required to pay higher wages or be subject to less favorable
working rules than those applicable to other Contractors employing
members of the Union performing similar work in the same jurisdiction."
1 2 Presumably the I-day strike in May.
HOME ROOFING CO., INC.
benefits under those trust funds should be suspended until
the issue was resolved. As an additional ground for
recision , Kent alleged that Guerrero had failed to submit
proposals for a new agreement 60 days prior to August 27,
1972, the expiration date of the previous contract. The
letter concluded with a request for a joint meeting.
On June 22, the Union went on strike against three
roofing contractors, Capitol, Nobility, and Louis. By the
first week of July, the strike had spread to other Santa
Barbara County contractors, including Respondent.
On June 25, Kent wrote Miller protesting the selective
strike against the three contractors as discriminatory and
illegal because of the Union's failure to utilize the
grievance procedures. Advancing that as an additional
ground for rescinding the contract, Kent demanded that
the Union cease the strike against these contractors and
threatened legal action. Miller replied on June 27, rejecting
the claim that the Union's action justified recision, but said
there would be no objection to a meeting to attempt to
resolve any controversy. Any arguable violations of the
contract, Miller stated, should be handled under the
grievance and arbitration procedure and, if there were any
errors in the submission to the C.I.S.C., Kent was at liberty
to take steps to correct them.13 Miller reiterated the
Union's position, that failure to pay retroactive increases
constituted breach of the collective-bargaining agreement,
affording the Union the absolute right to strike or picket,
in furtherance of this objective, against any one or more of
the employers in its discretion.
On July 6, 1973, the eight roofing contractors, including
Respondent, formally organized the Roofing Contractors'
Association of Santa Barbara and San Luis Obispo
Counties, California, for the purpose, among others, of
dealing with the Union.
The same day Kent wrote Miller, requesting that
Guerrero attend a meeting on July 11, at the offices of
Capitol Roofing, at which the contractors would submit an
offer of settlement, in an effort to resolve the entire
controversy.
At this meeting, a written, 3-page settlement offer, signed
by seven of the eight contractors, including Respondent,
was submitted to Guerrero as a basis for terminating the
strike. Under the proposed settlement, the contractors
offered, among other things, to sign new collective-bar-
gaining agreements , effective until August 27, 1974; to pay
all wage increases already approved and to be approved by
the Wage Stabilization Committee, retroactive to March
23, 1973, and to waive any claims for reimbursement of
contributions "illegally" paid to the Roofers' Trust Fund
since August 27, 1972, which contributions would be
retained by the trust fund for the benefit of the employees.
Striking employees would be permitted to return to work
upon approval of the offer by the union membership.
Within 15 days after acceptance of the offer, a meeting
would be held to negotiate a contract embodying all other
terms of the collective-bargaining agreement, dated August
27, 1972, not inconsistent with the terms of the proposed
settlement . Guerrero was asked to submit the offer to the
13 In fact , Kent had written to the C . I.S.C. on June 20, referring to his
telephone conversation with a staff member on May 17, asking clarification
of whether agency approval of the initial submission included foremen. On
915
union membership and, without expressing any opinion
regarding the offer, agreed to do so. The record does
indicate whether the settlement offer was, in fact, present-
ed to the union membership, but obviously it was not
accepted.
Next day, July 12, Kent, on behalf of the Association,
addressed a letter to the Joint Grievance Committee of the
Labor Relations Board, under the contract, requesting a
meeting at the Building Trades Center, Santa Barbara, on
Wednesday, July 18, 1973, at 2 p.m., to discuss and resolve
grievances of all members of the Association. The letter
listed 36 employer grievances, to be placed on the agenda,
including the issue of whether five member contractors,
including Respondent, had signed collective-bargaining
agreements ; alleged variances between the wage scales
approved by the Wage Stabilization Committee and those
supplied to the employers by Guerrero; the issue of the
"favored nations clause;" and a host of other grievances,
many directed at Guerrero, as business agent . "Anticipat-
ing" a deadlock as to all or some of the grievances, as well
as in the "Joint Labor Relations Board," Kent requested
the appointment at the scheduled meeting of a three-man
arbitration committee, pursuant to the grievance and
arbitration procedures of the collective-bargaining agree-
ment.
On July 13, Kyle, a management member of the Joint
Labor Relations Board, notified the union members of that
board two additional grievances to be considered at the
meeting scheduled for July 18. The first charged that the
Union had not called a strike against roofing contractors in
San Luis Obispo and north county, who had also failed to
pay retroactive wages and that those contractors were,
therefore, receiving more favored treatment; and the
second, that all collective-bargaining agreements in effect
should be rescinded and renegotiated because of the
Union's failure to abide by any of the terms applicable to
the Union. At the July 18 meeting, the grievances were
discussed, some were eliminated and those not otherwise
resolved were reserved for arbitration.
On July 24, Guerrero wrote the Joint Labor Relations
Board, requesting a meeting on July 26 to discuss and
resolve the Union's grievance against the contractors
signatory to the collective-bargaining agreement, effective
August 27, 1972, for failing and refusing to pay retroactive
wages and fringe benefit contributions, as provided for in
the agreement. The following day, Attorney Kent acknowl-
edged receipt of the grievance, waived the 10-day notice
requirement and stated that the Union's grievance would
be taken up at the meeting, if submitted in writing, in
advance. In his letter, Kent submitted six additional
grievances, charging that the Union had failed to comply
with the collective-bargaining agreement in numerous
specified respects, and had filed unfair labor practice
charges of refusal to bargain against employer-members of
the Association while grievance and arbitration proceed-
ings were pending.
Reviewing the grievance and arbitration procedures,
"pursuant to article VIII of the collective-bargaining
July 23 , following a supplemental submission by the Union , the agency
issued approval of the "[e]ntire agreement, including corrected foreman
premium."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement," Kent called upon the Union to appoint an
arbitrator so that the two appointees could select a third,
and the prescribed procedures be followed to ensure
selection of arbitrators.
Finally, however, Kent wrote, the members of the
Association had unanimously agreed at its last meeting
that "any determination upon the issue of whether or not
certain specific contractors have properly executed collec-
tive bargaining agreements with the Union is a legal issue
which is not properly included under the above arbitration
because it is not a grievance `under the terms of the
Collective Bargaining Agreement'. That issue relates only
to certain specific contractors and should be properly
resolved in a different forum . Thus, those two grievances
relating to that issue dated July 12th are hereby abandoned
by the employers."
At the July 26 meeting , the Union presented its grievance
regarding the contractors ' failure and refusal to pay
retroactive wages and fringe benefit contributions. The six
additional grievances , contained in Kent's letter of July 25,
and the Union's grievance were discussed. Two relatively
minor employer grievances were resolved by the Union's
agreement to comply ; another was tabled ; and the
remaining three of these employer grievances, according to
the minutes of the meeting , were to be submitted to
arbitration . The Union's grievance was not sustained, for
want of a second to Guerrero's motion for compliance by
all signatory contractors and was to be submitted to
arbitration . None of the previous 38 grievances contained
in the Association's letters of July 12 and 13 were discussed
at this meeting.
On August 6, 1973, Kent, on behalf of the Association,
served the Union with a demand to renegotiate "terms of
the agreement for its second year starting August 27,
1973," renewing its previous written demands on May 23
and July 11 , and similar requests made orally at meetings
between members of the Association and the Union. In his
letter , Kent stated that if the request was denied, the
members of the Association, who were signatories to the
agreement , would deem the second year of the agreement
cancelled and rescinded upon the mailing of separate
notices of rescision by them. Acknowledging that under the
reopening provisions of the contract , only subjects other
than wage rates or fringe benefit contributions might be
negotiated , the Association sought to reopen the agreement
as to the permissible matters , and requested a meeting.
On August 15, the union attorneys rejected the Associa-
tion's demand as not required under the reopening
provision, but expressed willingness to negotiate any
grievances claimed by the Association to exist under the
agreement . The union attorneys cautioned against any
attempt to rescind the contract , charging that such action
would constitute a violation of the Act. Asserting that the
Union did not recognize the "multi-employer group" or the
Association , which had not even been in existence when
the contract was executed , the union attorneys stated that
the Union was not averse to negotiating an understanding
granting recognition to any association. The letter conclud-
ed with a request for payment of all sums due from
delinquent , contractors , and "forbearance" by each of the
contractors from "arrogating the non-existence of the
collective-bargaining agreement."
On October 5, the union attorneys in apparent response
to Kent's letter of the previous day, stated that the Union
would only deal with the contractors as individuals "until
they are willing to sit down in good faith and deal
realistically with the problems at hand," but asserted that
the nonpayment of retroactive wage increases and fringe
benefit contributions remained the crucial problem. Crit-
icizing the Employers' grievances as "red herrings ," raised
to avoid "the basic issue ," the union attorneys asserted
their intention of proceeding to arbitration on the wage
and fringe benefit issues , with other issues to be dealt with
as they arose . Mention was also made that the Union had
received no confirmation from Respondent (or Capitol)
that they recognized the agreement , but that if Kent would
submit written evidence of his authorization to negotiate
and resolve grievances on behalf of the contractors, the
parties could proceed to resolve the "log jam." The letter
concluded that the Union had submitted lists of arbitrators
obtained from the Federal Mediation and Conciliation
Service to several of the contractors, with a view to
arbitrating the issue of wages and fringe benefits as the first
issue in the dispute , upon resolution of which the Union
would be willing to proceed with other grievances.
Between August 3 and October 31 , 1973, as reflected in
the voluminous correspondence between counsel for both
sides, and between them and the F.M.C.S., designated as
"Supplemental History of Arbitration Procedures," cover-
ing that period, efforts were made to select arbitrators, and
to delineate the grievances to be submitted to arbitration.
The Union maintained , in effect, that it was entitled to
separate arbitration for each of the five contractors and
sought to select separate arbitrators on this basis. It refused
to designate arbitrators to decide grievances of Respondent
(and Capitol), who had not signed escrow agreements,
mentioned elsewhere , and who refused to acknowledge
that the master labor agreement was binding upon them.
The Union refused to arbitrate this issue , which Respon-
dent maintained should be decided by the court. The
Association and its members , on the other hand , argued for
the consolidation of all unresolved grievances in a single
arbitration . The issue of arbitration remained unresolved
at the time of the hearing in these proceedings.
In view of the irreconcilable positions of the parties
regarding the basic issue of whether Respondent executed
or agreed to be bound by the master labor agreement, it
would be an exercise in futility for the Board to remand the
parties to arbitration to resolve a host of grievances outside
the scope of these proceedings . Furthermore, the fact that
the unilateral discontinuance of retroactive wage and
fringe benefit increases may also have involved a contrac-
tual violation remediable, in appropriate circumstances, by
arbitration, does not preclude the Board from finding the
conduct to constitute an unfair labor practice or require
the Board to defer to arbitration.14 Finally, the record as a
whole, including the voluminous correspondence between
the parties, suggests that Respondent 's entire course of
14 Cf. N. L. R. B . v. Chase Manufacturing Company, 492 F .2d 1300 (C.A. 7,
1974).
HOME ROOFING CO., INC. 917
conduct, following approval by the C.I.S.C., of the
retroactive wage and benefit increase, was an elaborate
stratagem calculated to compel the Union to renegotiate
the master labor agreement.
For all the foregoing reasons, it is found that this is not
an appropriate case for deferral to arbitration and that the
policies of the Act will be best effectuated by deciding the
issues raised by the pleadings.
On January 10, 1974, the last day of the hearing in this
proceeding, an action was filed in the superior court of the
State of California for the county of Santa Barbara, Case
No. 102241, on behalf of the eight roofing contractor-
members of the Association, including Respondent,
against the Union, for (1) order compelling arbitration; (2)
declaration of rights, duties and sums due under written
agreements; (3) declaratory relief re execution of master
labor agreement by Home Roofing Co., Inc.; and (4)
money damages for wrongful interference with business
contract.
D. The Refusal To Bargain
1. The appropriate unit; majority representation
The complaint alleges , Respondent's answer admits, and
it is hereby found, that the following-described unit is, and
at all times material herein has been, an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees employed by Respondent engaged in
the application of roofing, waterproofing, slate, tile,
asbestos (rigid), asbestos and composition siding and
roof insulation materials, including enamelers , protec-
tive coating workers, pipe wrappers, journeyman
roofers, roofers, shinglers and siders, but excluding
office clerical employees, guards and supervisors as
defined in the Act.
The complaint further alleges, Respondent's answer
admits, and it is hereby found, that, at all times material
herein, more particularly since on about November 2,
1972, to date, the Union has been the representative for the
purposes of collective bargaining of the employees in the
unit described above, and, by virtue of Section 9(a) of the
Act, has been, and is now, the exclusive representative of
all the employees in said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
2. The refusal to bargain
It is undisputed that, although Respondent initially
granted its employees the retroactive wage increase and
contributed the increased payments to the trust fund, it
subsequently ceased making these payments. Respondent's
reasons for taking this action have previously been
15 The strike was subsequently terminated as to five of the seven
contractors , who were members of the Association , when they executed
escrow agreements with the Union, undertaking, among other things, to
deposit the retroactive pay into an escrow fund , pending resolution of the
dispute by arbitration . Respondent and Capitol Roof and Supply, Inc.
refused to enter into an escrow agreement , and the Union continued the
strike against them.
considered and found to have furnished no justification
therefor.
The record sufficiently establishes that Respondent took
this action unilaterally and without prior notice to the
Union. Whatever negotiations may have taken place
occurred after Respondent had discontinued making
payments. Respondent's attempted justification for its
action by reliance on the Union's alleged failure to abide
by the contract, particularly in respect to the no-strike,
grievance and arbitration, favored-nations, and other
provisions, relates to issues raised after Respondent had
taken unilateral action. Moreover, while these factors
might be material in testing the Union 's good faith if
Respondent were charged with a general refusal to bargain,
it is no defense to a charge of a limited refusal to bargain
based solely on the unilateral discontinuance of authorized
wage and benefit increases.
It is , therefore, found that, by unilaterally and without
prior notice to or negotiation with the Union, discontinu-
ing and withholding retroactive wage and fringe benefit
contributions, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5), thereby
interfering with, restraining, and coercing employees in the
exercise of rights guaranteed in Section 7, in violation of
Section 8(a)(1) of the Act.
E. Further Refusal To Bargain, Interference,
Restraint, and Coercion
Before taking strike action, late in June or early in July,
Business Agent Guerrero demanded that Respondent pay
the retroactive wage and fringe benefit increases. Hall
categorically stated that he did not intend to make any
further payment of these items. He testified that, although
he considered himself bound by the interim agreement he
had signed (which would have expired by its terms on
August 27, 1973), he told the employees who demanded
their retroactive pay that he would not pay these increases
until the dispute was resolved.15 When the men decided to
strike, Hall told them, in an outburst of anger, to "stay
out." The strike against Respondent continued, and was
still in effect at the time of the hearing.
About 2 weeks after the strike began, Hall started hiring
replacements. Hall told applicants that the was operating
"nonunion," and inquired whether they were union men.16
He admittedly told those who acknowledged union
affiliation that they could work there but that they might
get into trouble with the Union if they did. Some refused to
accept employment under these circumstances. According
to Hall, he hired replacements at the "basic union scales
for apprentices and journeymen," although it does not
appear whether he was applying the wage scales under the
expired contract or the new one. Most of the replacements,
Hall maintained, were inexperienced, and he started them
at the apprentice scale , though he may have paid more
16 In his pretrial affidavit, which Hall affirmed, he is quoted as follows:
"I have been 100 percent union for years, but since they made their demand
for eight months retroactive pay and refused to talk about it, and went out
on strike, I consider myself not bound with the Union in any way."
According to the same affidavit , Hall also stated, "When I found out from
the contractors association that I was the only one who paid, I told my men
that I wasn't going to pay anymore."
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experienced men somewhat higher wages . Those working
as foremen were paid at the rate of $7 an hour, less than
the rate prescribed in either of the two most recent master
labor agreements . Hall further testified that, since none of
the replacements were union members , he made no
contributions on their behalf for dues checkoff or fringe
benefits.17
Although Hall's statements and conduct, related above,
have not been alleged in the complaint as independent
violations of Section 8(aX5) and (1) of the Act, the
evidence was received without objection, and the issues
were fully litigated . Moreover, the evidence introduced was
sufficiently related to the allegations of the complaint to
justify its admission.
Hall's statement to applicants for employment, that he
intended to operate "nonunion," and his order to the
strikers to "stay out," even if based on his assumption that
the interim agreement had expired and that he was no
longer under any obligation to deal with the Union, was,
nevertheless , in derogation of the Union's status as
exclusive representative of the unit employees . The fact
that the employees were on strike did not, of course , relieve
Respondent of the obligation to bargain with the Union,
and Hall's statement that he intended to operate "nonun-
ion," was tantamount to a rejection of the Union as
bargaining agent and constituted a refusal to bargain. This
conclusion is further supported by Hall's pretrial state-
ment, acknowledging Respondent 's refusal to be bound by
the contract.
Hall's admitted interrogation of applicants for replace-
ments as to whether they were "union," can hardly be
justified as an effort to determine whether employees so
hired might be subject to dues checkoff, since Respondent
denied that it was bound by the master labor agreement
containing such a provision . It is, therefore, evident that
Hall's purpose in questioning these men was to make
certain that those he hired were not union adherents. The
fact that Hall told applicants that they could work there,
irrespective of whether they were union men, did not
dissipate the effects of Hall 's otherwise unlawful interroga-
tion, especially since he cautioned that they might get into
trouble with the Union, thus discouraging them from
accepting employment.
Finally, Respondent 's refusal to make contributions for
fringe benefits on behalf of replacements, on the ground
that they were not union members, constituted discrimina-
tion based solely on considerations of union membership,
violating the well-established principle that all unit
employees , including replacements , are entitled to the
benefits of the collective-bargaining agreement, without
regard to union membership, subject only to the limitations
of the proviso to Section 8(a)(3) of the Act.
It is, therefore , found that, by Hall's statements to the
striking employees , as well as to the replacements, related
above ; by Respondent's unilateral determination of wage
rates to be paid such replacements ; and by its failure and
refusal to make the required contributions on their behalf
to the trust funds , Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5), and by all
the foregoing conduct , has interfered with , restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7, in violation of Section 8(aXl) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent , set forth in section III,
above , occurring in connection with the operations of
Respondent, described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, it will be recommended that it cease and
desist therefrom , and take certain affirmative action
designed to effectuate the policies of the Act. It has been
found that Respondent unilaterally and without prior
notice to or negotiation with the Union, discontinued and
withheld retroactive wage increases and fringe benefits
required by the master labor agreement, effective from
August 27, 1972, to August 27, 1974. It will , therefore, be
recommended that Respondent reimburse said employees
for the amounts of said wage increases , less such partial
payments which Respondent may have paid retroactively,
together with interest , computed in accordance with the
formula prescribed in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent
continue to pay its employees the wage increases required
under said master labor agreement . It will further be
recommended that Respondent make the contributions to
the health and welfare fund, apprenticeship and training
fund, together with the wage deductions for the vacation
fund and the union dues checkoff , as required by said
collective-bargaining agreement, together with interest
computed in accordance with the his formula.
Upon the basis of the above findings of fact and upon
the entire record in the case, the undersigned makes the
following:
CONCLUSIONS OF LAW
1. Home Roofing Co., Inc., Respondent herein, is now,
and at all times material herein has been, an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers' Association, Local Union No.
137, the Union herein, is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by Respondent engaged in
the application of roofing, waterproofing, slate, tile,
asbestos (rigid), asbestos and composition siding and roof
Ir According to De LaTorre, a roofing contractor and a trustee of the different attorneys as to whether contributions were required on behalf of
health and welfare fund , legal opinions had been solicited from two replacements but no opinion had been forthcoming.
HOME ROOFING CO., INC.
insulation materials, including enamelers, protective coat-
ing workers, pipe wrappers, journeyman roofers, roofers,
shinglers, and siders, but excluding office clerical employ-
ees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act.
4. United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers' Association, Local Union No.
137, the Union herein, was, on November 2, 1972, and, at
all times material herein has been, the exclusive representa-
tive of all employees in the appropriate unit described
above for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By unilaterally, and without prior notice to or
consultation with the Union, discontinuing and withhold-
ing retroactive wage increases and fringe benefit contrib-
utions; by threatening to continue withholding such wage
increases and fringe benefit contributions; by unilaterally
establishing the wages of employees hired to replace
striking employees and failing and refusing to make
appropriate contributions on their behalf to the Trust
Funds, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5), and by all of the foregoing conduct has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed in Section 7, within the meaning of
Section 8(a)(1) of the Act.
6. By coercively interrogating applicants for employ-
ment regarding their union membership or affiliation,
Respondent has interfered with, restrained, and coerced
employees, within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I make the following
recommended: 18
ORDER
Home Roofing Co ., Inc., Respondent herein, its officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive representative of the employees in the appropri-
ate unit, by unilaterally and without prior notice to or
negotiation with the Union, discontinuing and withholding
retroactive wage increases and fringe benefit contributions
required by the master labor agreement , effective from
August 27, 1972, to August 27, 1974 , or making any
changes in wages , hours , or terms or conditions of
employment of its employees in the appropriate unit.
(b) Coercively interrogating applicants for employment
regarding their union membership or affiliation.
(c) In any like or related manner , interfering with,
restraining , or coercing its employees in the exercise of the
right to self-organization , to form labor organizations, to
join or assist United Slate , Tile and Composition Roofers,
Damp and Waterproof Workers ' Association , Local Union
No. 137, or any other labor organization , to bargain
919
collectively through representatives of their own choosing
and to engage in other protected concerted activities for
the purpose of collective bargaining or other mutual aid or
protection guaranteed in Section 7 of the Act, or to refrain
from any or all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, permitted by the proviso to Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Bargain collectively with the Union as the exclusive
representative of Respondent's employees in the appropri-
ate unit with respect to rates of pay, wages , hours, and
other terms and conditions of employment.
(b) Abide by, and apply the terms and conditions of, the
master labor agreement, effective from August 27, 1972, to
August 27, 1974, retroactively to the effective date thereof,
and tender backpay to, and make contributions for fringe
benefits to the trust funds, on behalf of the employees in
the appropriate unit, in the manner set forth in the section
above, entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, 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 recommended Order.
(d) Post at its place of business at Santa Barbara,
California, copies of the notice attached hereto and
marked "Appendix." 19 Copies of said notice, on forms to
be furnished by the Regional Director for Region 31, shall,
after being signed by Respondent's duly authorized
representative, be posted by Respondent immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered
by other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from receipt of this decision and
Order, what steps Respondent has taken to comply
herewith.
18 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 .48 of the Rules and Regulations be adopted by the Board and
become its findings , conclusions and Order , and all objections thereto shall
be deemed waived for all purposes.
19 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers' Association, Local Union
No. 137, as the exclusive representative of all our
employees in the appropriate unit, by unilaterally, and
without prior notice to or negotiation with the Union,
discontinuing or withholding retroactive wage increases
and fringe benefit contributions required by the master
labor agreement, effective from August 27, 1972, to
August 27, 1974, or by making any changes in wages,
hours, or terms or conditions of employment of our
employees, without notice to and consultation with said
Union.
WE WILL NOT coercively interrogate applicants for
employment regarding their union membership or
affiliation.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the right to self-organization, to form labor organiza-
tions, to join or assist United Slate, Tile and Compos-
ition Roofers, Damp and Waterproof Workers' Associ-
ation , Local Union No. 137, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
protected concerted activities for the purpose of
collective bargaining or other mutual aid or protection
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization, as permitted by
the proviso to Section 8(a)(3) of the Act, as amended.
WE WILL NOT fail or refuse to pay our employees in
the appropriate unit, described below, all wage increas-
es required under the master labor agreement, above
described, and make the contributions of fringe benefit
increases to the trust funds, required under said
Agreement.
WE WILL bargain collectively with the Union as
exclusive representative of our employees in said
appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment.
WE WILL abide by, and apply the terms and
conditions of the master labor agreement, above
described, to the employees in the appropriate unit,
retroactively to the effective date thereof, and tender
backpay to, and make contributions for fringe benefits
to the trust funds, on behalf of the employees in the
appropriate unit, in the manner set forth in the section
of the Decision entitled, "The Remedy." The appropri-
ate unit is:
All employees employed by Respondent engaged
in the application of roofing, waterproofing, slate,
tile, asbestos (rigid), asbestos and composition
siding and roof insulation materials , including
enamelers, protective coating workers, pipe wrap-
pers, journeyman roofers, roofers, shinglers, and
siders, but excluding office clerical employees,
guards, and supervisors as defined in the Act, as
amended.
HOME ROOFING CO., INC.,
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, Room 12100, 11000 Wilshire Boulevard,
Los Angeles, California 90024, Telephone 213-824-7357.