Lee'S Roofing And Insulation

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 244 (N.L.R.B. 1986)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hayden Lee Ponder d/b/a Lee's Roofing and Insula-
tion and Local Union No. 47 of the United
Union of Roofers, Waterproofers and Allied
Workers, AFL-CIO. Case 20-CA-17087
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 8 November 1983 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Respondent filed exceptions' and a supporting
brief, and the General Counsel filed an answering
brief in support of the judge's decision.
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, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hayden Lee
Ponder d/b/a Lee's Roofing and Insulation, West
Sacramento, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
CHAIRMAN DOTSON, dissenting.
The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilater-
ally failing to file reports with, and make payments
to, the unit employees' health and hospital trust
fund pursuant to the terms of the collective-bar-
gaining agreement between the Respondent and the
Union. The Respondent admits the factual allega-
tions of the complaint but denies that it has violat-
ed the Act. Based on the reasoning set forth in my
dissent in Rapid Fur Dressing, 278 NLRB 905
(1986), I would dismiss the complaint in its entire-
ty.
Rapid Fur Dressing similarly involved a failure to
make pension fund contributions. In my dissent I
elaborated on the guidance which Congressional
intent provides (along with the dictates of the
Board's heavy workload) in striking a proper bal-
ance between those circumstances in which the
Board should deem a dispute to be one of mere
contract breach and leave the parties to their con-
tractual and judicial remedies, and those in which
' No exceptions to the judge's discussion concerning Sec. 8 (f) were
filed.
the Board should act to remedy a fundamental ab-
rogation of a bargaining obligation and find an un-
lawful labor practice. In striking this balance in
Rapid Fur Dressing, I conclude that the employer's
failure to make pension fund contributions was the
nature of contractual breach best left to resolution
by the parties in other forums. I reach the same
conclusion with respect to the Respondent's breach
here.
Accordingly, I would dismiss the complaint in its
entirety.
Nancy E. Watson , for the General Counsel.
Dennis B. Coop Esq. (Thierman, Simpson & Cook), of
Sacramento, California, for the Respondent.
Robert M. Hirsch, Esq. (Van Bourg, Allen, Weinberg &
Roger), of San Francisco, California, for the Charging
Party.
DECISION
ROGER B . HOLMES , Administrative Law Judge. The
original unfair labor practice charge in this case was filed
on May 10 , 1982, by Local Union No . 47 of the United
Union of Roofers , Waterproofers and Allied Workers,
AFL-CIO. The first amended unfair labor practice
charge in this case was filed on February 14, 1983, by
the Union.
The General Counsel 's complaint was issued on June
25, 1982, against Hayden Lee Ponder d/b/a Lee's Roof-
ing and Insulation . The General Counsel issued an
amendment to his complaint on April 13, 1983. The Gen-
eral Counsel alleges that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act. In summary , the General
Counsel alleges that the Respondent has failed and re-
fused to bargain collectively with the Union by unilater-
ally about January 1 , 1982, and continuing thereafter,
failing to file reports with , and to make payments to, the
unit employees ' Health and Hospital Trust Fund pursu-
ant to the terms of a collective -bargaining agreement be-
tween the Respondent and the Union. (See pars. 9(a),
9(b), and 10 of the General Counsel 's complaint, which
was introduced into evidence as G.C. Exh. 1(c).)
In the answer to the General Counsel 's complaint, the
Respondent denies the commission of the alleged unfair
labor practices , and the Respondent raises certain affirm-
ative defenses. In the answer to the allegations set forth
in paragraph 9(a) of the General Counsel's complaint, the
Respondent states that it "admits that it did not make
payments into the Health and Hospital Trust Fund under
the union 's collective bargaining agreement , but denies
that it was bound to any of the terms of said collective
bargaining agreement and denies that it had any obliga-
tion to make fringe benefit contributions on behalf of its
employees pursuant to such an agreement."
The Respondent also asserts five affirmative defenses.
In summary , the Respondent alleges that : (1) the com-
plaint fails to state a claim on which relief can be grant-
ed; (2) NLRB lacks jurisdiction over the Respondent; (3)
section 515 of the Employment Retirement Income and
280 NLRB No. 25
LEE'S ROOFING & INSULATION
Security Act provides the exclusive remedy for collec-
tion of allegedly delinquent trust fund contributions and,
therefore , NLRB lacks jurisdiction; (4) the proceeding is
barred by laches and waiver ; and (5) any alleged agree-
ment between the Respondent and the Union was a pre-
hire agreement under Section 8(f) of NLRA and was
properly terminated because the Union did not represent
a majority of employees in an appropriate unit . (See G.C.
Exh. 1(j).)
The trial in this proceeding was held on August 2,
1983 , at Sacramento, California . The time for the filing
of briefs was extended to September 26, 1983.
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a sole proprietorship engaged in
furnishing and installing roofing and insulation for both
commercial enterprises and residential homes . The Re-
spondent is located in West Sacramento , California. The
Respondent 's business operations meet the direct outflow
jurisdictional standard . (See the stipulation at Tr. 7.)
The status of the Charging Party as being a labor or-
ganization within the meaning of Section 2(5) of the Act
was admitted in the pleadings.
II. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Three persons were called as witnesses at the trial of
this proceeding. In alphabetical order by their last
names, they are: Richard Franklin, who is the secretary
and business representative of the Union; Hayden Lee
Ponder, who is the owner of the Respondent; and Jack
Schwartz, who is a certified public accountant and a
partner in the accounting firm of Schwartz & Winkler.
The findings of fact to be set forth herein are based on
portions of the testimony given by each one of the wit-
nesses who testified at the trial. Each one gave credible
testimony with regard to the matters about which he tes-
tified. In addition, findings of fact will be based on stipu-
lations of fact on which the parties agreed at the trial
and on documentary evidence introduced by the parties
at the trial.
III. THE COLLECTIVE-BARGAINING AGREEMENTS
Introduced into evidence as General Counsel's Exhibit
2 was a copy of a collective-bargaining agreement be-
tween the Respondent and the Union . (See also the stipu-
lation at Tr. 7-8.)
Introduced into evidence as General Counsel 's Exhibit
3 was a copy of an interim agreement between the Re-
spondent and the Union . The document indicates that it
was signed by the Respondent on September 3, 1980.
(See also the stipulation at Tr. 8.)
Introduced into evidence as General Counsel 's Exhibit
4 was a copy of a collective -bargaining agreement be-
tween the Associated Roofing Contractors of Northern
California , Inc. and the Union . The document indicates
that it was signed by those parties on August 31, 1980.
Article II, section A, of the contract indicates that the
effective dates are from September 1, 1980 , through
August 31 , 1983, and continuing thereafter unless written
245
notice is given to modify or to amend the agreement
within the time period provided therein . (See also Tr. 9.)
Introduced into evidence as General Counsel's Exhibit
5 was a copy of a collective -bargaining agreement be-
tween the Respondent and the Union . The document in-
dicates that it was signed by the Respondent on Decem-
ber 2, 1982. (See also Tr. 9-10.) The document also indi-
cates that the signatory parties to that agreement agreed
to be bound by , and to become a party to , the collective-
bargaining agreement which was introduced into evi-
dence as General Counsel 's Exhibit 4.
IV. THE UNION 'S STATUS
The parties stipulated that the persons named below
have been members of the Union from at least since June
1980 to the time of the trial on August 2, 1983 . The par-
ties further stipulated that those persons are employees
who have been reported as employees in the proper unit
of the Respondent , or who have been noted on one of
the .three audits as being roofers . Those persons are: John
Abella, John F. Bennie , John R . Bennie Jr., Louis Cate,
John Chavez , John Cornejo, Max Donovan , Julian Mar-
quez , Patrick Maxwell , Walter Messer , Jeff Morford,
James Patton , Larry Rogers, Wilson Short, and Jim
Yeoman.
Regarding Kerry Bode , the parties stipulated that he
has been a member of the Union continuously from Oc-
tober 1 , 1980, to the time of the trial. (See Tr . 18-22.)
Franklin recalled that in June 1980 , when Ponder
signed a contract with the Union , Ponder brought in five
or six of his employees to apply for membership in the
Union . The Union referred those persons to work for the
Respondent at that time. Thereafter, the Union continued
to dispatch employees to work for the Respondent. Ac-
cording to Franklin , all the employees listed by the Re-
spondent on General Counsel 's Exhibit 9 are members of
the Union. (Regarding G.C. Exh. 9, see infra.)
V. THE AUDIT AND ACTIONS TAKEN BY THE TRUST
FUNDS
Introduced into evidence as General Counsel's Exhib-
its 9(a) through (g) were copies of "monthly remittance
forms" submitted by the Respondent to the Union's
"Health, Dental , Vacation & Pension Funds" for June
through November 1980 and for April 1981. (See also
Tr. 13.)
Introduced into evidence as General Counsel 's Exhib-
its 10(b) through (e) were copies of "monthly remittance
forms" submitted by the Respondent to the Union's
"Health, Dental , Vacation & Pension Funds" for July
through November 1981. General Counsel 's Exhibit 10(a)
was described at the trial as being a "cover sheet" pre-
pared by someone else. (See Tr. 13-15.)
The parties stipulated that from June 1980 to the time
of the trial on August 2, 1983, there were delinquencies
in trust fund contributions which are owed by the Re-
spondent to the Valley Roofers Trust Fund, but the
amount of such delinquencies were in dispute . (See Tr.
16-17.)
The parties also stipulated that there were no reports
filed for the trust funds involved in this case, or any pay-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments made, by the Respondent since December 3, 1982.
(See Tr . 17-18.)
Introduced into evidence as General Counsel 's Exhibit
6 was a copy of an audit of the Respondent's financial
records for the period from June 1, 1980, to June 30,
1981 . The document is dated September 9, 1981, and it
indicates that the audit was made by Schwartz &
Winkler , certified public accountants , at the request of
the Valley Roofers Health and Hospital Trust Fund. (See
also Tr . 10-11.)
Introduced into evidence as General Counsel 's Exhibit
7 was a copy of an audit of the Respondent 's financial
records for the period from July 1 , 1981 , to June 30,
1982 . The document is dated October 12, 1982 , and it in-
dicates that the audit was made by the same accounting
firm and reported to the same trust fund as was General
Counsel 's Exhibit 6. (See also Tr. 11-12.) Introduced into
evidence as General Counsel's Exhibit 8 was a copy of a
revised audit of the Respondent 's financial records for
the period from June 1, 1980, to June 30 , 1982. The doc-
ument is dated March 14, 1983, and it indicates that the
revised audit was made by the same accounting firm and
reported to the same trust find as were General Coun-
sel's Exhibits 6 and 7. (See also Tr. 12-13.) Regarding
General Counsel 's Exhibit 8, Schwartz explained at the
trial that the revised audit was prepared pursuant to dis-
cussions between the attorney for the trust funds and the
attorney for the Respondent . Schwartz stated at tran-
script 51, "As a result of all this , the auditor went back
and came out with this third report , which deleted some
of the men or some of the people who are included in
this `81 /`82 report . They were deleted because they were
not doing roofing work . And I think both sides agreed to
that." (See also the attorneys ' comments and the stipula-
tion at Tr . 52-55 regarding G.C. Exh. 8.) Schwartz ac-
knowledged that the revised audit revealed that pay-
ments of $57,223.04 had been received from the Re-
spondent , but the audit concluded that deficiencies still
existed in moneys due to the trust funds . (See Tr . 56-58.)
Franklin recalled at the trial that he had discussed
with Ponder on three to five occasions in 1980 the Re-
spondent's failure to submit reports to the trust funds.
Ponder told Franklin that he "was trying to get the re-
ports caught up." (See Tr. 70.) Franklin said Ponder was
late in sending in his contributions to the trust funds, and
Ponder explained to him that the reason was, "He was
strapped for money , correct." (See Tr. 78.)
In October or Nevember 1981 Ponder had a telephone
conversation with Gary Watts, who was an attorney rep-
resenting the Valley Roofers Trust Funds at the time.
Ponder said at transcript 84:
He said he 'd have to have some payment towards
the delinquent trust fund; and that he would like to
work out a payment arrangement with me.
And I said : Fine . Because I'm concerned about
them too . I told him that we would be able to make
a $10,000 payment and approximately $3,000 a
month thereafter; and he agreed.
Subsequently Ponder made a payment of $10,000 and
another payment in the amount of $3000, but he did not
make any further payments to the trust funds . Ponder
said , "I missed the next payment and they filed a law-
suit." At the trial, Ponder explained that the reason was,
"Basically, I didn 't have the money ." (See Tr . 85.) He
said that was the same reason he had become delinquent
earlier regarding to some of his trust fund contributions.
He said that his financial condition continued to be in
that manner at the time of the trial.
Introduced into evidence as Respondent's Exhibit 1
was a copy of a complaint filed in the Superior Court of
California, County of Sacramento, in Case 301803. The
document indicates that the plaintiffs in that state court
proceeding were the trustees of the Valley Roofers Trust
Funds and the Respondent was one of the defendants.
The document indicates that the complaint was filed on
February 26, 1982. (See also Tr. 23-37.)
Introduced into evidence as Respondent's Exhibit 2
was a copy of a letter dated November 10, 1982, from
the attorney for the Respondent, Dennis B. Cook, to the
attorney for the trust funds, Robert M. Hirsch. ( See also
Tr. 37 .) The letter pertains to the Respondent 's position
regarding to the state court proceedings. (See R. Exh. 1.)
Introduced into evidence as Respondent 's Exhibit 3
was a copy of a letter dated February 7, 1983, from the
attorney for the Respondent to the attorney for the trust
funds . (See also Tr . 38.) It pertains to the Respondent's
position regarding the state court proceedings . (See R.
Exh. 1.)
Introduced into evidence as Respondent's Exhibit 4
was a copy of a letter dated March 22, 1983, from the
attorney for the Respondent to the attorney for the trust
funds. (See also Tr. 38.) It also pertains to the Respond-
ent's position regarding the state court proceedings. (See
R. Exh. 1.)
Introduced into evidence as Respondent 's Exhibit 5
was a copy of a letter dated March 29, 1983, from the
attorney for the trust funds to the attorney for the Re-
spondent. (See also Tr. 38-39.) It pertains to the position
of the trust funds regarding the state court proceedings.
(See R. Exh. 1.)
Introduced into evidence as Respondent's Exhibit 6
was a copy of a petition filed by the trust funds on April
18, 1983, under the provisions of Chapter 7 of the Bank-
ruptcy Code, in the United States Bankruptcy Court for
the Eastern District of California against the Respondent.
(See also Tr. 39-46.)
Introduced into evidence as General Counsel 's Exhibit
11 was a copy of a request filed on August 5, 1983, by
the trust funds for the dismissal of the involuntary bank-
ruptcy petition and order.
VI. CONCLUSIONS
Based on the findings of fact set forth in the preceding
sections, I conclude that the General Counsel has intro-
duced evidence which establishes a prima facie case that
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(axl) and (5) of the Act
as alleged in the complaint . The General Counsel has
shown that the Respondent and the Union have been
parties to a collective-bargaining agreement which pro-
vides, among other things, for a "basic hourly wage
LEE'S ROOFING & INSULATION
rate." That "basic hourly wage rate" includes, as com-
pensation for employees who are covered by the con-
tract, certain fringe benefit payments. In that connection,
the Respondent was obligated to file certain reports and
to make certain contributions to trust funds on behalf of
the Respondent's employees. The General Counsel has
shown that the Respondent has not filed all the required
reports and has not made all the contributions to the
trust funds as provided for in the collective-bargaining
agreement. Therefore, I conclude that the General Coun-
sel has established a prima facie case that the Respondent
has failed and refused to bargain collectively with the
Union in violation of Section 8(a)(1) and (5) of the Act.
Fox Painting Co., 263 NLRB 437 (1982); William B.
Allen, Allcon, Inc., 267 NLRB 700 (1983); Angelus Block
Co., 250 NLRB 868 (1980); Ortiz Funeral Home Corp.,
250 NLRB 730 (1980).
Having found that the General Counsel has established
a prima facie case, I turn now to a consideration of the
Respondent's affirmative defenses. Regarding the first af-
firmative defense raised by the Respondent, which has
been summarized at the outset of this decision, I con-
clude that the General Counsel's complaint, as amended,
meets the requirements of Section 102.15 of the Board's
Rules and Regulations regarding the contents of a com-
plaint which alleges unfair labor practices. With respect
to the second affirmative defense, I conclude that the
Respondent 's business operations meet the Board 's direct
outflow jurisdictional standard.
Concerning the third affirmative defense urged by the
Respondent, I conclude that ERISA does not preclude
the NLRB from considering the unfair labor practice
issues in this case and ordering a remedy, if appropriate,
in this matter . In its opinion in Hurn v. Retirement Fund
Trust, Plumbing, Heating & Piping Industry, 703 F.2d 386
(9th Cir. 1983), the United States Court of Appeals for
the Ninth Circuit held at 391:
The Fund's broader argument that ERISA pre-
empts the Taft-Hartley Act on pension issues is
equally untenable. Both the Supreme Court and this
court have recognized that the Taft-Hartley provi-
sions parallel the ERISA provisions and that trust-
ees must meet the requirements of each. [Case cita-
tions omitted.] Where Congress intended ERISA to
repeal or supersede other laws, state or federal, it
said so. See 29 U.S.C. §§ 1031(a), 1144(a). But it
said nothing about section 302(c)(5). ERISA was
not to affect any Federal laws not specifically men-
tioned, id. 1144(d), and it does not preempt Hum's
Taft-Hartley claim.
In this connection, see also the Supreme Court's opin-
ion in Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982),
especially at 86-88 regarding the legislative history per-
taining to Section 515 of ERISA.
In addition, the trustees of the Valley Roofers Trust
Funds are the plaintiffs in the state court proceeding,
while a different party, the Union, is the Charging Party
in the unfair labor practice proceeding. Their interests
are not necessarily identical. Camay Drilling Co., 239
NLRB 997 (1978).
247
Finally, the remedies available in the state court pro-
ceeding are not the same as those if unfair labor practices
are found in this proceeding.
Regarding the fourth affirmative defense raised in the
pleadings, I conclude tht the facts do not support the
view that this proceeding is barred by laches and waiver.
In this connection, I note that the original unfair labor
practice charge was filed by the Union on May 10, 1982,
and the earliest date of the alleged unfair labor practices
is January 1, 1982. The Union's actions in this proceed-
ing do not indicate that the Union has waived its claims
or failed to pursue them.
Regarding the fifth affirmative defense, I conclude that
the evidence does not establish affirmatively that the col-
lective-bargaining relationship between the Respondent
and the Union was a prehire agreement permissible
under Section 8(f) of the Act. In addition, the Respond-
ent contends that it has not repudiated its contract. The
Respondent's attorney candidly stated at transcript 28,
"We have not repudiated any collective bargaining
agreement in the past with Roofers Local 47." (See also
Tr. 32.) Nevertheless, the evidence indicates that a ma-
jority of the roofing employees of the Respondent were
members of the Union. (See the stipulation at Tr. 18-22
and the testimony of Franklin at Tr. 60-63.)
In view of the foregoing, I conclude that the affirma-
tive defenses asserted in the Respondent's answer to the
General Counsel's complaint do not have merit.
Additionally, the attorney for the Respondent urges
that the counsel for the General Counsel's contentions in
this proceeding are contrary to the General Counsel's
advice memorandum published at 112 LRRM 1440. The
name of the employer involved in that advice memoran-
dum is Boeliner Concrete Co. (See Tr 24-28 and 32-33.
See also Br. 7 of the Respondent's posttrial brief.) Coun-
sel for the General Counsel urges that the advice memo-
randum in the Boeliner matter is not a precedent for de-
ciding unfair labor practice cases and that the facts in the
Boeliner matter is not a precedent for deciding unfair
labor practice cases and that the facts in the Boeliner
matter are different from the facts in the present pro-
ceeding. (See fn. 4 on p. 5 of the posttrial brief filed by
the counsel for the General Counsel.) I conclude that the
advice memorandum of the General Counsel merely re-
flicts the General Counsel's legal position regarding the
matter described therein, and that the General Counsel's
legal position is not the equivalent of Board precedent.
The Board has made it clear that its administrative law
judges have a duty to apply established Board precedent,
unless that precedent has been reversed by the Board
itself or by the Supreme Court. Ford Motor Co., 230
NLRB 716 (1977), enfd. 571 F.2d 993 (7th Cir 1978),
affd. 441 U.S. 488 (1979). See also Insurance Agents'
International Union (Prudential Co.), 119 NLRB 768
(1957).
Both the original unfair labor practice charge and the
first amended unfair labor practice charge are broader
than the General Counsel's complaint allegation in para-
graph 9(a) of his complaint in that the Union's charges
allege the Respondent's "failure to pay fringe benefits
under the collective bargaining agreement." The General
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's original complaint, which issued on June 25,
1982, and the General Counsel's amendment to com-
plaint, which issued on April 13, 1983, referred in para-
graph 9(a) only to the "Health and Hospital Trust
Fund." The complaint allegations did not mention the
other trust funds.
Articles IX and X of the collective-bargaining agree-
ment, which were introduced into evidence as General
Counsel's Exhibit 4 at the trial, reveal that the trust
funds are: the Valley Roofers Health and Hospital Trust
Fund; the Dental Fund; the Pension Plan; the Roofers
Vacation Fund; the Sacramento Area Roofers Joint Ap-
prenticeship Training Fund; the Sacramento Area Roof-
ing Industry Promotion Fund; and the Sacramento Area
Union Roofers Administrative Trust Fund. Notwith-
standing the fact that the General Counsel's complaint
and the amendment to the complaint specify only the
Health and Hospital Trust Fund, I conclude that the
issues pertaining to the Respondent's failure to file re-
ports and to make the appropriate contributions have
been "fully litigated" at the trial. Therefore, findings
should be made regarding those matters. Alexander's Res-
taurant & Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d
1300 (9th Cir. 1978). However, the remedial order will
not be applicable to the Industry Promotion Fund and
the Administrative Trust Fund. Fox Painting Co., 263
NLRB 437 (1982).
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in
commerce, at all times material herein, within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union has been a labor organization, at all
times material herein , 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 the em-
ployees of the Respondent in the appropriate bargaining
unit described below:
All journeymen roofers, enamelers, and pipe wrap-
pers, damp and waterproof workers, and appren-
tices employed by the Respondent at its West Sac-
ramento, California, facility; excluding all other em-
loyees, guards and supervisors as defined in the Act.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act since January 1, 1982, by failing and refusing to bar-
gain collectively with the Union as the exclusive collec-
tive-bargaining representative of the employees in the
unit described above by failing to file reports with, and
by failing to make payments to, the trust funds provided
for in the collective -bargaining agreement between the
Respondent and the Union. Those trust funds are: the
Valley Roofers Health and Hospital Trust Fund; the
Dental Fund; the Pension Plan; the Roofers Vacation
Fund; and the Sacramento Area Roofers Joint Appren-
ticeship Training Fund.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondent has en-
gaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, I shall recom-
mend to the Board that the Respondent be ordered to
cease and desist from engaging in such unfair labor prac-
tices. I shall also recommend to the Board that the Re-
spondent be ordered to take certain affirmative action to
effectuate the policies of the Act. Such recommendations
will be set forth in the recommended Order herein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Hayden Lee Ponder d/b/a Lee's
Roofing and Insulation , West Sacramento , California, its
officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the Union as the exclusive collective -bargaining repre-
sentative of the employees in the unit described below by
failing to file reports with, and by failing to make pay-
ments to, the trust funds provided for in the collective-
bargaining agreement between the Respondent and the
Union. Those trust funds are: the Valley Roofers Health
and Hospital Trust Fund; the Dental Fund; the Pension
Plan; the Roofers Vacation Fund; and the Sacramento
Area Roofers Joint Apprenticeship Training Fund. The
appropriate bargaining unit is:
All journeymen roofers, enamelers, and pipe wrap-
pers, damp and waterproof workers, and appren-
tices employed by the Respondent at its West Sac-
ramento, California, facility; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with the Union as the exclusive collective-bargaining
representative of the employees in the unit described
herein, and abide by the terms of the collective-bargain-
ing agreement between the Respondent and the Union.
(b) Make whole the unit employees of the Respondent
who have incurred losses of wages and benefits because
of the Respondent's failure to abide by the terms and
conditions of the collective-bargaining agreement with
the Union. In making whole such unit employees, the
Respondent shall reimburse the unit employees of the
Respondent for any medical, dental, or any other ex-
penses ensuing from the Respondent 's failure to file re-
1 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
LEE'S ROOFING & INSULATION
ports with, and to make payments to, the contractually
required trust funds. The foregoing remedy shall include
reimbursing employees for contributions they may have
made to the trust funds after the Respondent failed
timely to make such contributions to those funds: reim-
bursing employees for any premiums which the unit em-
ployees may have paid to third-party insurance compa-
nies to continue medical and dental coverage in the ab-
sence of the Respondent's contributions to the trust
funds; and for any medical or dental bills which the unit
employees have paid directly to health care providers
that the contractual policies would have covered. In
making whole the unit employees, the remedy will be in
accordance with the Board's decisions in Father & Son
Painting, 267 NLRB No. 176 (1983) (not reported in
Board volumes); Fox Painting Co., 263 NLRB 437 (1982);
Kraft Plumbing, 252 NLRB 891 (1980); Angelus Block
Co., 250 NLRB 868 (1980); and Ortiz Funeral Home
Corp., 250 NLRB 730 (1980).
Such monetary amounts are to be computed in accord-
ance with the Board's decision in Ogle Protection Service,
183 NLRB 682 (1970), with interest thereon as pre-
scribed in Isis Plumbing Co., 138 NLRB 716 (1962); Flori-
da Steel Corp., 231 NLRB 651 (1977), and Olympic Medi-
cal Corp., 250 NLRB 146 (1980). In addition, the Re-
spondent shall pay the contractually agreed-upon trust
funds in the amounts of the contributions which the Re-
spondent failed to make on behalf of the Respondent's
unit employees in accordance with the Board's decision
in Fox Painting Co., with any interest applicable to such
payments to be computed in accordance with the
Board's decision in Merryweather Optical Co., 240 NLRB
1213 (1979).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its West Sacramento, California facility
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
8 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
249
I WILL NOT fail and refuse to bargain collectively with
Local Union No. 47 of the United Union of Roofers,
Waterproofers and Allied Workers, AFL-CIO as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit described below by failing to file re-
ports with, and by failing to make payments to, the trust
funds provided for in the collective-bargaining agree-
ment between my Company and the Union. Those trust
funds are : the Valley Roofers Health and Hospital Trust
Fund; the Dental Fund; the Pension Plan; the Roofers
Vacation Fund; and the Sacramento Area Roofers Joint
Apprenticeship Training Fund. The appropriate bargain-
ing unit is:
All journeymen roofers , enamelers , and pipe wrap-
pers, damp and waterproof workers, and appren-
tices employed by the Respondent at its West Sac-
ramento , California, facility; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
I WILL recognize and, on request, bargain collectively
with the Union as the exclusive collective-bargaining
representative of the employees in the unit described
above, and, I WILL abide by the terms of the collective-
bargaining agreement with the Union.
I WILL make whole the unit employees who have in-
curred losses of wages and benefits because of the failure
to abide by the terms and conditions of the collective-
bargaining agreement with the Union. In making whole
such unit employees, I shall reimburse the unit employ-
ees for any medical, dental, or any other expenses ensu-
ing from the failure to file reports with, and to make
payments to, the contractually required trust funds. The
foregoing remedy shall include reimbursing employees
for contributions they may have made to the trust funds
after I failed timely to make such contributions to those
funds; reimbursing employees for any premiums which
the unit employees may have paid to third party insur-
ance companies to continue medical and dental coverage
in the absence of my contributions to the trust funds; and
for any medical or dental bills which the unit employees
have paid directly to health care providers that the con-
tractual policies would have covered. Such monetary
amounts, and appropriate interest thereon, will be com-
puted in accordance with National Labor Relations
Board decisions . In addition, I WILL pay the contractual-
ly agreed-upon trust funds in the amounts of the contri-
butions which were not made in behalf of my employees,
and interest therein will be computed in accordance with
NLRB decisions.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL NOT in any like or related manner, interfere rights which are guaranteed to them by the National
with, restrain, or coerce my employees in the exercise of Labor Relations Act.
HAYDEN LEE PONDER D/B/A LEE'S ROOF-
ING AND INSULATION