Service Roofing Co.

National Labor Relations Board - Board Decisions

Oct 25, 1968

173 N.L.R.B. 321 (N.L.R.B. 1968)

SERVICE ROOFING CO
Service Roofing Company and Roofers Local No.
220, United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers ' Association,
AFL-CIO. Case 21-CA-7924-2
October 25, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZAGORIA
On July 31, 1968, Trial Examiner Melvin Pollack
issued his Decision in this proceeding, finding that
Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Service Roofing Company,
Los Angeles, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
1 Without relying , as did the Trial Examiner, upon the business
enterprises of Coast Roof Company, we nonetheless assert jurisdiction
herein , as the record clearly shows that the Association 's enterprises
satisfy our jurisdictional standards The complaint herein alleges, and
Respondent 's answer admits , that the Association annually receives
goods and /or services valued in excess of $50 , 000 that originate outside
the State of California.
2 We agree with the Trial Examiner that there were no "unusual
circumstances " in this case to excuse Respondent 's untimely attempt to
withdraw from the Association Cf. the Board 's Supplemental Decision
in Spun -Jee Corp., 171 NLRB No. 64.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
321
MELVIN POLLACK, Trial Examiner- This case was heard
before me at Los Angeles, California, on May 24, 1968,
pursuant to a charge filed on January 26, 1968, an amended
charge filed on April 8, 1968, and a complaint issued on March
14 and amended on April 10, 1968. The complaint alleges that
Respondent, in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, has refused to sign
and abide by the terms of a collective-bargaining agreement
entered into on October 18, 1967, by the Charging Party and
Roofing Contractors' Association of Orange County, Inc.,
herein called the Association. The General Counsel and
Respondent presented oral argument at the hearing and have
also filed briefs.
Upon the entire record, and my observation of the
witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, is engaged at Fuller-
ton, California, in the business of roofing residential, com-
mercial, and industrial buildings The complaint is based on the
view that Respondent at all material times has been and is a
member of the Association for purposes of collective bar-
gaining. Hence, for jurisdictional purposes, it is sufficient to
establish that any member of the Association is engaged in
commerce within the meaning of the Act. Plumbers & Pipe
Fitters Local Union 214, 131 NLRB 942, 943, fn. 1, 950
Coast Roof Company, a member of the Association, per-
formed roofing services valued at over $400,000 for a General
Dynamics plant at Pomona, California, during the period
November 1967-May 1968.' The parties stipulated that the
annual interstate purchases and sales of the General Dynamics
plant each exceed $50,000. I find that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act. Siemons Mailing Service, 122 NLRB 81, 85.
II THE LABOR ORGANIZATION INVOLVED
Roofers Local No. 220, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers' Association, AFL-
CIO, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
The Association executed a collective-bargaining agreement
with Roofers Locals 36 and 72, effective August 15, 1963, to
August 15, 1967. The Union was chartered by the Roofers
I Although this commerce data for the 6 months preceding the
hearing covers a penod subsequent to the commission of the alleged
unfair labor practices, there is no contention that it is not representative
of Coast Roof's operations ibis therefore properly considered for
jurisdictional purposes . Cf Montex Drilling Company , 122 NLRB 139,
Glenn Koennecke , d/b/a Sunset Lumber Products, 113 NLRB 1172, in
1, see also Aroostook Federation of Farmers, 114 NLRB 538, 539.
173 NLRB No 44
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in November 1965 and established a hiring hall on
January 2, 1966, which was thereafter used by Association
members to get men. By letter dated February 27, 1967,2 the
Union notified the Association that it wished to open
negotiations on a new contract and listed the members of its
negotiating committee. The Association replied on March 9
that it would be glad to start negotiations after April 1 and
named the members of its bargaining committee On March 15,
the Association submitted to the Union a list of the con-
tractors it represented, including Respondent.
The negotiators met on June 8 3 The next day, Re-
spondent's president, Hugh Warden, sent the following letter
to the Association
Negotiations are presently being conducted between the
Association and Local 220 of the Roofers Union
As a member of the Association, we recognize the Associa-
tion as a bargaining agent for this Company However, we
reserve the rights to signing the proposed new contract
upon its determination Hence, we do not empower the
Roofers Association to act on our behalf for signing any
new contract with the Labor Union
The letter was not brought to the attention of the Union.
Respondent at this time had been a member of the Association
for at least 10 years. The Association's bylaws contain a
provision that a labor contract negotiated by its Labor
Committee "shall be binding upon the Regular Members of
this Association separately and collectively."
Negotiations between the Union and the Association broke
down sometime after a meeting on June 15, but were resumed
pursuant to an Association letter dated July 18 4 Respondent's
president, Hugh Warden, testified that he attended a negotia-
ting session in late July after bargaining was resumed and
stated that he "wasn't interested in signmg any union contract
and ... definitely wouldn't sign one with the RIT [Roofing
Industry Trust] in it." On August 29, Marvin Wardens sent the
following letter to the Association
As we have decided to become a non-Union shop, we are
notifying the Association that we are dropping from their
membership effectively immediately.
We would also appreciate refund of our $400 group bond
deposit upon the expiration of the 60 or 90 day waiting
period.
Thank you for your help in past endeavors.
This letter was not brought to the attention of the Union.
In late September, William Nuttall, the Union' s Business
Representative, requested Hugh Warden to sign a 90-day
interim agreement which continued the terms of the expired
1963 contract, included economic changes agreed upon during
the current negotiations , and provided that the employer would
"immediately execute" the collective-bargaining agreement
"finally negotiated" between the Union and "the representa-
tives of the various employers in the roofing industry." Warden
said he was going non-union and refused to sign the interim
agreement.6
2 All dates hereafter are in 1967 unless otherwise noted.
3 Respondent's vice president , Wesley Warden, attended this meeting
and all succeeding meetings Although not a formal member of the
Association 's bargaining team, he sat at the negotiating table and
participated in the negotiations.
4 The resumed negotiations were between the Association, the
Union Roofing Contractors Association of Los Angeles, and Locals 36,
72 and the Union.
The negotiators reached agreement on and signed a new
master labor agreement on October 18, 1967 7 The Union did
not present the new agreement to Respondent for signature.
B. Analysis and Conclusions
Section 8(d) of the Act expressly defines the duty "to
bargain collectively" to include "the execution of a written
contract incorporating any agreement reached if requested by
[the other] party." See also, H. J. Heinz Company v.
N.L R B , 311 U.S 514, 526 This same requirement applies to
a multiemployer agreement reached with a union by an
authorized representative of the employer, acting on his
behalf. NLR.B v. Sheridan Creations, Inc., 357 F.2d 245,
247 (C.A. 2), cert denied 385 U S. 1005, N.L R.B. v Jeffries
Banknote Company, 281 F.2d 893, 896 (C.A. 9). Where the
employer attempts to withdraw from the multiemployer unit
before such agreement is reached, his bargaining obligation
depends on a determination whether the attempted withdrawal
was timely. And absent unusual circumstances, an attempted
withdrawal following the commencement of negotiations on a
multiemployer basis is not timely. See NL R B v. Spun-Jee
Corporation, 385 F.2d 379, 381-382 (C A 2), Retail Asso-
ciates, Inc , 120 NLRB 388, 395.
The record shows that Respondent was represented for
bargaining in a multiemployer unit by the Association when
negotiations began on June 8, 1967, that it did not submit its
resignation from membership in the Association until August
29, and that the Company has neither signed nor abided by the
terms and conditions of the October 18 master labor agree-
ment between the Union and the Association. Respondent
contends, however, that no violation may be found under the
authorities cited above because (1) The October 18 agreement
was never submitted to Respondent for signature, (2) Re-
spondent's letter of June 9 to the Association was a timely
withdrawal from the multiemployer unit; and (3) the Union
has acquiesced in Respondent's withdrawal from the multi-
employer baigaining unit.
1. Respondent argues that it never refused to "sign and
abide" by the October 18 contract as charged in the complaint
because the Union never submitted it to the Respondent for
signature. The record shows, however, that President Hugh
Warden declared at a meeting after negotiations resumed in
late July that he was not interested in signing any union
contract, that Respondent advised the Association on August
29 that it was dropping its membership because "we have
decided to become a non-Union shop," and that Hugh Warden
told Business Representative Nuttall in September that he
would not sign an interim agreement providing for acceptance
of a new contract negotiated by the Union and Association
because he was going non-union. I find in these circumstances,
as such action would have been an "exercise in futility," that
the Union was not obliged to seek Respondent's signature to
the October 18 contract. The John J Corbett Press, Inc , 163
5 Marvin and Wesley Warden are Hugh Warden's sons
6 Nuttall testified that negotiations were still being conducted "in
some respects" when he submitted the interim agreement to Warden. In
view of this testimony , I find, contrary to the contention of the General
Counsel, that Nuttall requested Warden to sign the interim contract
before all the terms of a new agreement had been settled.
7 Wesley Warden was present when the Association 's members met
to vote on the new contract. He did not vote.
SERVICE ROOFING CO.
NLRB No. 26. I find, rather, since Respondent's attempted
withdrawal from the multiemployer bargaining unit was
ineffective (see discussion below), that it was incumbent upon
Respondent to take steps to sign any agreement reached. Idem.
2. Respondent contends that its letter of June 9, 1967, to
the Association, revoking the power of the Association "to act
on our behalf for signing any new contract with the Labor
Union," was a timely withdrawal from the multiemployer
bargaining unit, although negotiations had started the day
before, because the negotiations thereafter "broke down."
Respondent, however, also stated in the letter that "As a
member of the Association, we recognize the Association as a
bargaining agent for this Company." The net import of the
letter, therefore, was to the effect that Respondent reserved
the right to withdraw from the multiemployer bargaining unit
if it was not satisfied with the terms of a new contract
negotiated with the Union. I find that the June 9 letter was
not an unequivocal withdrawal by Respondent from the
existing multiemployer bargaining unit.8 Anderson Lithograph
Company, Inc., 124 NLRB 920, enfd. sub nom. N.L.R.B v
Jeffries Banknote Company, 281 F.2d 893 (C.A. 9).
3. Respondent cites the following circumstances in support
of its contention that the Union acquiesced in Respondent's
withdrawal from the Association and in its refusal to sign the
October 18 agreement: The June 9 letter to the Association
reserving the right to refuse to sign a contract negotiated with
the Union; the Union's failure to "react to or object to"
President Hugh Warden's statement late in July that he was not
interested in signing any union contract; the August 29 letter
of withdrawal from membership in the Association; the
Union's failure to "react to or object to" Respondent's refusal
in September to sign an interim agreement; the Union's failure
to ask Respondent to sign the master labor agreement when it
was finally negotiated, and the Union's delay in filing unfair
labor practice charges against Respondent.
Respondent did not send a copy of the June 9 letter to the
Union and the Association did not advise the Union of the
letter. The Union therefore first became aware that Respond-
ent might refuse to sign a contract negotiated with the
Association when President Hugh Warden declared at a
negotiating session late in July that he was not interested in
signing any contract with the Union. Respondent, however,
was still a member of the Association and its vice president,
Wesley Warden, continued to attend and participate in
contract negotiations. Respondent did not send a formal letter
of resignation to the Association until August 29. It did not
send a copy of the resignation letter to the Union and the
Association did not advise the Union of the resignation letter.
The Union, meanwhile, took no action inconsistent with
Respondent' s status as a member of the multiemployer
bargaining unit and, after the 1963 contract expired on August
15, asked the members of the Association, including Respond-
ent, to sign an interim agreement. After President Hugh
Warden told Business Representative Nuttall in September that
8 In view of this finding, it is unnecessary to determine whether the
June 9 letter to the Association was "timely " or constituted "adequate
written notice " under Retail Associates, Inc., 120 NLRB 388, 395. I
note, however, that the letter was not brought to the attention of the
Union and that the record indicates a temporary cessation of negotia-
tions between the Association and the Union before July 18 rather than
an "impasse ." Cf. The John J. Corbett Press , Inc., supra.
323
Respondent was going non-union and would not sign the
interim agreement, the Union made no effort to enter into
separate negotiations with Respondent.9 I attach no signifi-
cance to the Union's failure to submit the October 18 master
labor agreement to Respondent for signature, for, as found
above, such action would have been futile. While the Union
waited several months before filing unfair labor practice
charges with the Board, the charges were nevertheless timely
filed under Section 10(b) of the Act.10 I find under all the
circumstances that the Union did not acquiesce in Respond-
ent's attempted withdrawal from the multiemployer bargaining
unit, or in Respondent's refusal to sign the agreement
negotiated with the Association
On the basis of the foregoing, I find that a multiemployer
unit consisting of the non-supervisory roofing employees of
the members of the Association, including Respondent, is
appropriate for collective bargaining purposes I further find
that the Union was at all material times and still is the
exclusive statutory bargaining representative of the unit
employees. Accordingly, I find and conclude that Respondent,
by its failure to sign and abide by the October 18, 1967 master
labor agreement between the Union and the Association, has
refused to bargain collectively in violation of Sections 8(a)(5)
and 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By its failure to sign and abide by the October 18, 1967,
master labor agreement negotiated between the Union and the
Association, Respondent has engaged in unfair labor practices
within the meaning of Sections 8(a)(5) and 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The order I recommend the Board issue, as set forth below,
requires Respondent to cease and desist from further such
violations. However, I do not consider that those engaged in
are of such a character as to warrant a broad injunctive
provision under Section 8(a)(1) of the Act.
As affirmative action to remedy Respondent's unfair labor
practices on lines necessary to effectuate the Act's policies, the
order I recommend requires Respondent forthwith to sign the
agreement entered into between the Union and the Associa-
tion, dated October 18, 1967, to give retroactive effect to the
terms and conditions of that agreement, and to make whole its
employees for any loss of wages or other employment benefits
they may have suffered as a result of Respondent's failure or
refusal to sign that agreement. Backpay, if any, shall be
9 Respondent 's reliance in its brief upon C & M Construction
Company, 147 NLRB 843, and Publicity Engravers, Incorporated, 161
NLRB 221, is misplaced . Unlike the Union, the labor organizations
involved in those cases sought to obtain a separate contract from an
employer whose withdrawal from a multiemployer unit was untimely.
10 Section 10(b) provides in pertinent part that "no complaint shall
issue based upon any unfair labor practice occurring more than six
months prior to the filing of the charge."
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
computed, and shall bear interest in accordance with F. W
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the foregoing findings and conclusions and upon the
entire record in the case, I recommend that the Board issue,
pursuant to Section 10(c) of the Act, the following
ORDER
Respondent, Service Roofing Company, Fullerton, Cah-
fornra, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Failing or refusing to sign and abide by the contract
dated October 18, 1967, between Union Roofing Contractors'
Association, Roofing Contractors Association of Orange
County, Inc., and Locals 36, 72, and 220 of the United Slate,
Tile and Composition Roofers, Damp and Waterproof Workers'
Association, AFL-CIO.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to
self-organization, to join or assist Local 220 or any other labor
organization, to bargain collectively through representatives of
their own choosing and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, 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 authorized in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Forthwith sign the contract described in paragraph 1(a)
of this Order.
(b) Upon execution of the foregoing contract, give retro-
active effect to the terms and conditions thereof, including but
not limited to the provisions relating to wages and other
employment benefits, and, in the manner set forth in the
section of this Decision and Order entitled "The Remedy,"
make whole its employees for any losses they may have
suffered by reason of Respondent's failure or refusal to sign
the contract.
(c) Preserve and, upon request, make available to the Board
and its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to
determine the amount due as backpay and other benefits for
employees.
(d) Post at its place of business in Fullerton, California,
copies of the notice attached hereto and marked "Appen-
dixs11 Copies of said notice, on forms provided by the
Regional Director for Region 21, shall, after being signed by
Respondent's representatives , be posted by the Respondent
immediately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 21, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.12
1 r In the event that this Recommended Order be adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order be enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order " shall be substituted for the
words "a Decision and Order."
12 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read : "Notify said Regional
Director , in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that-
WE WILL forthwith sign the contract dated October 18,
1967, between Union Roofing Contractors' Association,
Roofing Contractors Association of Orange County, Inc.,
and Locals 36, 72, and 220 of the United Slate, Tile and
Composition Roofers, Damp and Waterproof Workers'
Association, AFL-CIO.
WE WILL give retroactive effect to the terms and condi-
tions of said contract, including but not limited to the
provisions relating to wages and other employment benefits,
and we shall make whole our employees for any losses they
may have suffered by reason of our refusal to sign the said
contract.
WE WILL NOT continue to refuse to sign the said contract
or 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 organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
SERVICE ROOFING COMPANY
(Employer)
Dated
By
(Representative ) (Title)
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.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board' s Regional Office, Eastern Columbia
Building, 849 South Broadway, Los Angeles, California 90014,
Telephone 688-5200.