Michael J. Bollinger Co.

National Labor Relations Board - Board Decisions

Sep 26, 1980

252 N.L.R.B. 406 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael J. Bollinger Co. and United Union of Roof-
ers, Waterproofers and Allied Workers, Local
No. 80. Case 5-CA-10928
September 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 21, 1980, Administrative Law Judge
Bruce C. Nasdor issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, to
modify his remedy,' and to adopt his recommend-
ed Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Michael J. Bollinger Co., Baltimore, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
Insert the following as paragraph 2(e) and relet-
teY the subsequent paragraphs accordingly:
"(e) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
See Isis Plumbing & Healing Co., 138 NLRB 716 (1962), for rationale
on interest payments. In accordance with his partial dissent in Olympic
Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would
award interest on the backpay due based on the formula set forth therein.
2 The Administrative Law Judge inadvertently failed to include in his
recommended Order a provision that Respondent make all pertinent re-
cords available We shall modify his recommended Order to include such
provision.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
case was heard in Baltimore, Maryland, on December 19,
252 NLRB No. 67
1979, and January 3 and 4, 1980. The charge was filed
by United Union of Roofers, Waterproofers and Allied
Workers, Local No. 80 (referred to herein as the Union
or the Charging Party), on May 7, 1979. The complaint
and notice of hearing issued on July 17, 1979, alleging
violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended (herein the Act). Re-
spondent filed its answer to the complaint on July 19,
1979, denying the allegations.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by counsel for the General Coun-
sel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is engaged at its Baltimore, Maryland, lo-
cation in the business of roofing replacement and repair.
During the past 12 months, a representative period, Re-
spondent purchased and received, in interstate com-
merce, products valued in excess of $50,000, directly
from points located outside the State of Maryland.
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE lABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALI.EGEI) UNFAIR I.ABOR PRACTICES
The issues to be decided are:
1. Whether or not Respondent timely and properly
withdrew from the multiemployer bargaining association
known as the Sheet Metal and Roofing Contractors As-
sociation of Baltimore, Maryland, Inc. (herein called the
Association).
2. Whether Respondent is obligated by law to execute
the collective-bargaining agreement which was agreed to
and executed by the other members of the Association
and the Union.
A. The Evidence
The credible evidence reveals that the Sheet Metal and
Roofing Contractors Association of Baltimore, Mary-
land, Inc., is an organization composed of various em-
ployers who are engaged in the sheet metal and roofing
business. One of its functions is to bargain collectively
with the Union on behalf of its employer members and
other employers, who authorize it to do so, concerning
wages, hours, and other conditions of employment. The
Association and the Union have had a collective-bargain-
ing relationship since 1964 and have been signatories to
collective-bargaining agreements extending over that
period of time. The members of the Association are:
Thomas Farell Co., Inc., Charles A. Dell, Chase Water-
proofing Co., Inc., Peter Gordon Company, Warren
Ehret Link Company, Bollinger Roofing Co., and Mi-
406
MICHAEL J. BOLLINGER CO.
chael J. Bollinger Company. All of the Association mem-
bers have executed the current collective-bargaining
agreement with the Union with the exception of Re-
spondent.
In 1976, prior to the commencement of negotiations
for the 1977-79 contract, Respondent sent the Union a
letter withdrawing from the Association. The letter is
dated July 13, 1976, and states:
Gentlemen this company has withdrawn its bar-
gaining authority from the Sheet Metal and Roofing
Contractors Association of Baltimore, Maryland,
Inc. The Association shall no longer have authority
to bargain with your local union on our behalf. We
shall remain a member of the Association however,
and shall participate in the Association, but the As-
sociation shall no longer be our bargaining repre-
sentative.
The letter was signed by Michael J. Bollinger, Jr. There-
after, Respondent President Michael J. Bollinger, Jr., at-
tended all bargaining sessions with the other employer
members and acted as their chief negotiator. Respondent
signed the collective-bargaining agreement between the
Association and the Union and abided by the terms of
that collective-bargaining agreement, including a check-
off provision.
Prior to negotiations for the current collective-bargain-
ing agreement, on January 26, 1979, Respondent's presi-
dent again wrote to the Union the following:
Gentlemen, please be advised that effective
today, January 26, 1979, we are withdrawing our
bargaining rights from the Sheet Metal and Roofing
Contractors Association of Baltimore, Maryland,
Inc. with regards to the upcoming contract renewal
with Local No. 80.
We shall bargain in good faith individually with
Local No. 80 as regards to the contract which ex-
pires March 31, 1979.
Charles S. Dell Co., another employer member, wrote
a similar letter dated January 30, 1979.
Thereafter, five negotiation sessions ensued between
mid-March and April 16, 1979, where Respondent was
represented at four of these five sessions. Timothy Bol-
linger represented Respondent at the first meeting and
Michael J. Bollinger, Jr., was present at three of the
other meetings. At the meetings where Michael J. Bol-
linger, Jr., was in attendance he presented the employer
Association's wage proposal to the Union and in general
acted as chief spokesman for the group. The other mem-
bers of the Association also attended these negotiation
sessions. During these sessions one wage proposal was
made from the Association to the Union and only one
proposal was proffered from the Union to the Associ-
ation. Michael J. Bollinger, Jr., was speaking for Warren
Ehert Link Company and was, according to the testimo-
ny of Hugh Wolfe, vice president of Warren Ehert Link
Company, speaking for the corporate interest of that em-
ployer and was supposed to make an offer on its behalf
to the Union. An agreement was ultimately reached, the
Union had the contract printed for signature, and all of
the Association members, except Respondent, signed the
current collective-bargaining agreement. A representa-
tive of the Charles S. Dell Company also signed the cur-
rent collective-bargaining agreement.
Respondent's president testified that when he sent the
letter to the Union withdrawing authority from the As-
sociation, he was concerned that the other employer
members would sign an agreement that he could not
"live" with economically. He testified candidly that he
would have considered signing the contract had he been
able to "live" with it economically. Once he found out
what the employers and the union had agreed to, he de-
cided he could not "live" with the terms and conditions
of the current contract and withdrew from the Union's
health and welfare fund by letter dated May 7, 1979.
B. Analysis and Conclusion
From the record evidence in this case, a pattern
emerges that there has been a history over the years of a
multiemployer association, including Respondent herein,
intending to be bound by group action. There was con-
sistent multiemployer bargaining and, after reaching
agreement, a single collective-bargaining agreement ap-
plicable to all of the parties was executed by all of the
parties. Furthermore, in the case of this Respondent, Re-
spondent continued this pattern in the face of sending
notification to the Union stating its desire to withdraw
from the Association bargaining. Moreover, in the most
recent negotiations, Respondent and the Charles S. Dell
Company both expressed their desires to withdraw from
Association bargaining. Respondent's actions thereafter
were a clear manifestation of its design to be bound by
Association bargaining until Respondent determined it
would not be economically feasible for it to be a party to
the contract that the Association had reached with the
Union. Simply put, Respondent was saying one thing and
doing something else. Its principal witness, Bollinger,
candidly testified that he wanted to retain the right to
bargain on an individual basis in the event that the Asso-
ciation and the Union entered an agreement that he
could not "live" with. This is not unlike Associated
Shower Door Co. Inc., 205 NLRB 677 (1973), where an
administrative law judge concluded with Board approval
that the respondents tried to secure "the best of two
worlds" by continuing in negotiations after having with-
drawn from same, and attempting to secure satisfactory
terms in the collective-bargaining agreement, while at
the same time attempting to preserve their rights to
reject the contract if they did not like it, and to continue
to bargain individually for a better contract. I agree with
counsel for the General Counsel that the instant situation
presents clear motivation by way of record testimony as
to why Respondent wrote both withdrawal letters. It is
also noted that Charles S. Dell Company after sending a
similar withdrawal letter, participated in negotiations and
executed the agreed upon collective-bargaining agree-
ment.
Accordingly, in light of the bargaining history, I con-
clude that Respondent manifested an intention to be
bound by group, rather than individual bargaining, and
that its refusal to sign the agreement agreed to by the
407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties on April 1, 1979, was a refusal to bargain within
the meaning of Section 8(a)(l) and (5) of the Act.
CONCI.USIONS OF LAW
I. Michael J. Bollinger Co. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Union of Roofers, Waterproofers and Allied
Workers, Local No. 80, is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the Association has rec-
ognized and negotiated a series of collective-bargaining
agreements with the Union as the exclusive bargaining
representative of the employees in the unit appropriate
for collective bargaining consisting of all sheet metal and
roofing employees employed by the employer who are
bound by the collective-bargaining agreement between
the Union and the Association. The most recently ex-
pired collective-bargaining agreement between the Union
and the Association was effective for the period April 1,
1979, through March 31, 1980.'
4. United Union of Roofers, Waterproofers and Allied
Workers, Local No. 80, has been at all times material
herein, and is now, the representative of a majority of
employees in the appropriate unit, and by virtue of Sec-
tion 9(a) of the Act, has been, and is, the exclusive repre-
sentative of all employees of the aforesaid unit for the
purposes of collective bargaining.2
5. The Sheet Metal and Roofing Contractors Associ-
ation of Baltimore, Maryland, Inc., is an organization
composed of various employers engaged in the sheet
metal and roofing industries in the greater metropolitan
area of Baltimore, Maryland. It exists for the purpose,
among others, of bargaining collectively with the Union,
on behalf of member employers and other employers
who so authorize it to do so, concerning wages, hours,
working conditions and other conditions of employment
of its employees.
6. By failing and refusing to execute or become a party
to the collective-bargaining agreement negotiated by the
employer members of the Sheet Metal and Roofing Con-
tractors Association of Baltimore, Maryland, Inc., and
the United Union of Roofers, Waterproofers end Allied
Workers, Local No. 80, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take appropriate affirmative
action designed to effectuate the policies of the Act. In
Art. 16 of the contract provides that it shall automatically renew
itself for successive periods of I year unless written notice is given by
either party to the other of its desire to terminate or modify the agree-
ment at least 60 days prior to March 31, 1980, or the anniversary date of
the succeeding year.
I Evidence of the Union's majority status was not at issue, therefore
there is a presumption of majority arising out of the history and pattern
of collective bargaining and the Union's incumbency as representative of
the unit employees.
particular, I shall recommend that Respondent be or-
dered to execute and honor the collective-bargaining
agreement containing all of the provisions of the collec-
tive-bargaining agreement entered into by the other em-
ployer members of the Sheet Metal and Roofing Con-
tractors Association of Baltimore, Maryland, Inc. I shall
also recommend that Respondent make its employees
whole for any loss of earnings or benefits they may have
suffered by reason of Respondent's failure and refusal to
execute and abide by the aforesaid agreement, to be com-
puted in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
to be computed in accordance with the decision in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). In addition,
I shall recommend that Respondent pay to the Union
any money owed to the health and welfare fund under
the terms of the aforesaid agreement, and reimburse any
employee initiation fees which shall be required as a con-
dition of rejoining the Union in accordance with the
aforesaid agreement.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER3
The Respondent, Michael J. Bollinger, Co., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with United Union of Roofers,
Waterproofers and Allied Workers, Local No. 80, as the
exclusive representative of its employees in the unit de-
scribed above, by failing and refusing to execute, sign, or
become party to the collective-bargaining agreement ne-
gotiated and entered into between the Sheet Metal and
Roofing Contractors Association of Baltimore, Mary-
land, Inc., and the United Union of Roofers, Water-
proofers and Allied Workers, Local No. 80.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
the above-named labor organization, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed by Section
7 of the Act or to refrain from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Forthwith execute and honor the collective-bar-
gaining agreement negotiated between the employer-
members of the Association and the Union.
(b) Make its employees whole for any loss of earnings
or benefits they may have suffered by reason of Re-
spondent's failure and refusal to execute and abide by the
3 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions. and recommended Order herein shall, as provided in
Sec. 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
408
MICHAEL J. BOLLINGER CO.
aforesaid agreement in the manner set forth in the sec-
tion entitled "The Remedy."
(c) Pay to the Union any money owed to the health
and welfare fund under the terms of the aforesaid agree-
ment.
(d) Reimburse any employee initiation fees which will
be required as a condition of rejoining the Union in ac-
cordance with the aforesaid agreement.
(e) Post at its Baltimore, Maryland, facility, copies of
the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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
NATIONAIL LABOR R ATIONS BOARI)
An Agency of the United States Government
WE WIL. NOT refuse to bargain collectively with
the United Union of Roofers, Waterproofers and
Allied Workers, Local No. 80, by failing and refus-
ing to execute and honor the agreement negotiated
and entered into with said union and the Sheet
Metal and Roofing Contractors Association of Bal-
timore, Maryland, Inc.
WE WILl. NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL forthwith execute and honor the agree-
ment negotiated between the Association and the
Union.
WE wil.L. make our employees whole for any loss
of earnings or other benefits they may have suffered
by reason of our failure and refusal to execute and
abide by the aofesaid agreement.
WE wIlll pay to the Union any money owed to
the health and welfare fund under the terms of the
aforesaid agreement.
WE WI.L reimburse any employee initiation fees
which will be required as a condition of rejoining
the Union in accordance with the aforesaid agree-
ment.
MICHAEIL J. BolI INGER Co.
409