Service Roofing Co.

National Labor Relations Board - Board Decisions

Dec 20, 1972

200 N.L.R.B. 1015 (N.L.R.B. 1972)

SERVICE ROOFING COMPANY
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
December 20, 1972
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 25, 1968, the National Labor Relations
Board issued a Decision and Order,' finding that
Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by
refusing to sign and abide by a contract between the
Roofing Contractors' Association of Orange County,
Inc (the Association), and Roofers Local No 220,
United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers' Association, AFL-CIO
(the Union), after Respondent made an untimely
attempt to withdraw from the Association The
Board directed, inter alga, that Respondent sign the
contract bargained for on its behalf by the Associa-
tion and to make whole its employees for any losses
they may have suffered by reason of Respondent's
failure or refusal to sign this contract Thereafter, on
May 4, 1970, the Board's Order was enforced by the
United States Court of Appeals for the Ninth
Circuit 2 On June 14, 1971, there was a contempt
adjudication against Respondent by the United
States Court of Appeals for the Ninth Circuit 3
On January 24, 1972, Respondent and the Region-
al Director for Region 21 entered a stipulation
whereby Respondent agreed to and did comply with
all provisions of the Orders of the Board and the
court except that it contested two of the items
contained in the General Counsel's backpay specifi-
cation Respondent claimed that it was entitled to
deduct $3,125 from the total amount specified to be
due the Union's vacation fund because it had paid
vacation benefits in that amount directly to three of
its employees Respondent further claimed that it
was not obligated to pay $7,323 95 specified as due to
the Union's health and welfare fund because,
throughout the backpay period, Respondent had
provided its employees benefits equivalent or superi-
or to those offered by the Union's fund and the
employees did not receive any coverage or benefits
during this period under the Union plan
On April 7, 1972, the Regional Director for Region
21 issued and served on the parties a backpay
specification and notice of hearing and Respondent
filed an answer to the backpay specification Pur-
suant to due notice, a hearing was held before
200 NLRB No 150
1015
Administrative Law Judge Richard D Taplitz on
July 18, 1972, for the purpose of determining
Respondent's obligations in connection with the
vacation benefits and health and welfare payments
discussed above
On August 31, 1972, the Administrative Law Judge
issued the attached Supplemental Decision, in which
he found Respondent was entitled to deduct the
amounts claimed and, accordingly, he dismissed the
backpay specification in its entirety Thereafter, the
General Counsel filed exceptions to the Administra-
tive Law Judge's Supplemental 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
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, fmdmgs,4 and conclusions of the Adminis-
trative Law Judge and 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 the backpay specification be
dismissed in its entirety
i Service Roofing Company, 173 NLRB 321
9)
2 NLRB v Service Roofing Co 74 LRRM 2176 62 LC § 10 842 (C A
3 NLRB v Service Roofing Co 77 LRRM 2962 65 LC § 11 867 (C A
9)
4 We hereby correct the Administrative Law Judge's inadvertent
reference to Respondent as Superior Roofing Company
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD D TAPLiTZ, Administrative Law Judge This
supplemental proceeding was heard at Los Angeles,
California, on July 18, 1972 The backpay specification
dated April 7, 1972, was predicated on a Decision and
Order of the Board, dated October 25, 1968, which was
reported at 173 NLRB 321, a Judgment and Order on the
Ninth Circuit Court of Appeals, dated May 4, 1970,
enforcing the Board's Decision and Order, and a contempt
adjudication by the Ninth Circuit Court of Appeals against
Respondent, dated June 14, 1971
In its Decision and Order, the Board found that Superior
Roofing Company (Respondent) violated Section 8(a)(5)
and (1) of the Act, by refusing to sign and abide by a
contract between the Roofing Contractors' Association of
Orange County, Inc (the Association) and Roofers Local
No 220, United Slate, Tile and Composition Roofers,
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Damp and Waterproof Workers' Association, AFL-CIO
(the Union), after Respondent made an untimely attempt
to withdraw from the Association Respondent was
ordered to "make whole its employees for any losses they
may have suffered by reason of Respondent's failure or
refusal to sign the contract "
As to major portions of Respondent's obligation under
the Board Order and court decrees, the parties have
reached agreement and payments have been made Only
two issues were presented for determination in this
supplemental proceeding They are
1 Whether Respondent must pay $3,125 plus interest
to the Union's vacation fund on behalf of three employees,
where Respondent has already paid that amount in
vacation payments directly to those employees, and,
2 Whether Respondent must pay $7,323 95 plus
interest to the Union's health and welfare fund for a period
where Respondent's employees were coveraged by Respon-
dent's own health plan, and where those employees were
not covered by the Union's plan
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs A brief which
has been carefully considered was filed on behalf of the
General Counsel
Upon the entire record of the case, I make the following
FINDINGS OF FACT
A The Board Order, the Court Decree and the
Contempt Adjudication
The Board ordered Respondent not only to sign the
contract that the Union had negotiated with the Associa-
tion, but to "give retroactive effect to the terms and
conditions thereof, including, but not limited to, the
provisions relating to wages and other employment
benefits, and make whole its employees for any
losses they may have suffered by reason of Respondent's
failure or refusal to sign the contract " The Ninth Circuit
Court of Appeals in enforcing the Board's Order, used the
same language However, in its subsequent contempt
adjudication, the Ninth Circuit Court of Appeals ordered
Respondent to purge itself of contempt by
2 Upon execution of the foregoing contract, giving
retroactive effect to the terms and conditions thereof,
in accordance with the terms of the decree, and in any
case, reimbursing the employees covered by said
contract for losses of wages and benefits, with interest,
which would have accrued had said contract been
executed, and making available to the National Labor
Relations Board all of its records necessary to analyze
whether and how much sums have been thus accrued
Said reimbursement shall be without deductions for any
payments or contributions which the company may have
made outside the provisions of the aforesaid contract In
the event of a dispute as to the amount due, the Board
shall fix said sum or sums in a backpay proceeding,
subject to further review by this Court [Emphasis
supplied ]
On January 24, 1972, Respondent and the Regional
Director of Region 21 of the Board entered into a
stipulation pursuant to which Respondent agreed to and
did pay $1,658 32 in backpay to employees and a total of
$7,124 70 to the Union's administration fund, apprentice-
ship and training fund, and retirement fund In addition,
Respondent agreed to and did pay $2,488 69 to the Union's
vacation fund The total vacation pay computation was
$5,613 69 but Respondent's position was that it was
entitled to deduct $3,125 that it had paid in vacation
benefits directly to Delfino Garcia ($825), Raymond
Jennings ($1,150), and Orval Williams ($1,150) The
computation for the amount due the health and welfare
fund was $7,323 95 but Respondent contends that it
provided equivalent or superior benefits to the employees
and therefore is not liable for that payment The parties
stipulated that, except for the disputed amounts relative to
the health and welfare fund, and the vacation fund, that
Respondent has fully complied with the provisions of the
Board Order, court decree and contempt adjudication
B The Vacation Fund
None of the parties dispute the fact that, under the
contract Respondent was required to execute, Garcia was
entitled to $825, Jennings to $1,150 and Williams to $1,150
in vacation pay That money should have been paid by
Respondent to the Union's vacation fund and then by the
vacation fund to those employees The parties stipulated
that Respondent paid vacation benefits directly to those
employees and that Garcia received $825, and Jennings
and Williams each received $1,150 The General Counsel
acknowledged on the record that if his position is
sustained, these employees will receive twice the amount of
vacation pay that they would have received if there had
been no unfair labor practice He contends, however, that
the Ninth Circuit Court of Appeals contempt adjudication
must be read literally, and that the Respondent may not
make any deductions for payments or contributions which
it made outside of the contract As a direct payment of
vacation benefits to the three employees in question was
not made under the provisions of the contract, the General
Counsel argues that Respondent should not be allowed to
deduct those payments from the amount it is required to
pay into the Union's vacation fund, even though the Union
would have made the vacation payments to the employees
in question if Respondent had made the proper payments
to the fund
I am unable to agree with the General Counsel's
contention The Board Order must be read in the light of
the fact that the Board has power under the Act to remedy
unfair labor practices, but does not have authority to issue
punitive orders Republic Steel Corp v N L R B, 311 U S
7 (1940), Porter Co v NLRB , 397 U S 99 (1970) The
Board ordered Respondent to execute the contract and
give it retroactive effect, but as to payments to employees,
Respondent was ordered to make them whole for losses
they suffered by reason of Respondent's failure to sign the
contract With regard to their vacation pay, Garcia,
Jennings, and Williams have been made whole They are
now in the same position they would have been had there
not been an unfair labor practice committed by Respon-
dent If the General Counsel's position is found to have
merit, those employees will receive double their vacation
SERVICE ROOFING COMPANY 1017
pay Such a payment can in no way be considered
remedial It would simply punish Respondent Nothing in
the Board language indicates that such a result was
intended
The court decree enforcing the Board Order uses the
Board's own language, and once again the remedial nature
of the Order is clear The Court of Appeals does have
power to inflict penalties on a Respondent in a contempt
adjudication However, if the court of appeals were to
punish Respondent for contempt, it would be expected that
the court would do so in clear and unequivocal language It
is also unlikely that the liquidation of the amount to be
paid under such a punitive contempt order would be
determined in a backpay proceeding before the Board In
sum, I believe that paragraph 2 of the contempt adjudica-
tion which states that reimbursement shall be made
without deductions for payments which the Company
made outside the contract, was intended simply to enforce
the Board's Order, and not to penalize Respondent for
contempt of the court of appeals
I find that the Board Order does not require Respondent
to make a second payment of vacation pay on behalf of
Garcia, Jennings, and Williams
C The Health and Welfare Fund
Respondent's employees are not now covered by the
Union's health and welfare fund Employees are only
covered when they are employed by a contributing
employer under an agreement with the Union Respondent
had a contract with the Union prior to August 1967 and
then for about 30 days before the expiration of the contract
in 1971 Respondent then notified the Union that it was
withdrawing from the Association and it does not presently
have a contract with the Union
The backpay specification alleges that Respondent is
liable for contributions to the Union's health and welfare
fund from August 15, 1967, to August 15, 1971 During
that period the Union maintained a health and welfare
plan through the Union Roofers' Trust Fund At various
times this fund was underwritten by Pacific Mutual Life
Insurance Company and by California Blue Shield From
January 1, 1971, the fund was selffunded However, during
that entire period, none of Respondent's employees were
provided any coverage or protection under the Union's
plan because Respondent made no contribution to that
plan This is not a situation where a union desires
reimbursement because it carries employees for whom no
contributions were made, or for whom the Union itself
pays premiums in the absence of employer contribution
During that same period, Respondent provided health and
welfare coverage for its employees From August 14 to
October 1, 1967, Respondent provided group policy
coverage with Guardian Life Insurance Company of
America From October 1, 1967, to October 1, 1968, a Blue
Cross group policy was provided From October 1, 1968, to
August 15, 1971, American National Insurance Company
coverage was provided The contention of Respondent that
1 In his brief the General Counsel cites Harold W Hinson d/b/a Hen
House Market No 3 175 NLRB 596 enfd 428 F 2d 133 (C A 8 1970) in
support of his position However in enforcing the Board Order the court
refers to the Board s authority to restore the status quo ante and to make
the coverage it provided its employees was as good or
better than that provided by the Union plan was not
contested by the General Counsel either at the hearing or
in his brief
If Respondent is required to make the retroactive
payments to the health and welfare plan for the period in
question, the Respondent's employees will not be granted
retroactive coverage George A Newman, the secretary-
treasurer of the Union who also serves as trustee of the
health and welfare fund credibly testified that Respon-
dent's employees would not get any benefits for money
paid in for that period The only effect of such a payment
would be to reduce the costs of the fund so that others
would theoretically have to pay less into the fund
If Respondent's employees had double coverage through
both the Union's and Respondent's plans during the period
in question, a serious argument could be made that the
Union should be reimbursed for carrying Respondent's
employees without Respondent's contributions However,
the Union did not carry those employees If the backpay
specification alleged that certain benefits would have been
paid to employees for specific claims under the union plan,
which were not covered by Respondent's plan, a serious
argument could be made that Respondent should be a self-
insurer to guarantee that the employees were made whole
However, there is no contention or proof that employees
suffered any specific losses because they were covered by
Respondent's rather than the Union's plan It could also be
seriously argued that Respondent should pay directly to
employees the amount, if any, that the premiums for the
Union's plan exceeded the premiums for Respondent's
plan However, no such argument was made by the
General Counsel and there is no evidence in the record
upon which an analysis along those lines can be made The
General Counsel's sole contention is that Respondent
should be required to make the full contribution to the
Union's fund i If the General Counsel's theory is sus-
tained, Respondent's employees (who have already re-
ceived coverage under Respondent' s plan) will not be
"made whole" because they will receive no benefit from
the payment to the Union plan, and the Union will be
given a "windfall" in that it will be paid for covering the
employees in question with health and welfare benefits
when in fact it did not cover said employees Under all
these circumstances, I find that such a payment would in
no sense remedy the unfair labor practice but would simply
be a punitive measure against Respondent
I find that Respondent is not required, under the Board
Order, to pay $7,323 95 to the Union's health and welfare
fund, as alleged in the backpay specification
D Conclusions
For the reasons stated above, I find that Respondent is
not obligated under the Board Order, to make the
payments set forth in the backpay specification
Upon the foregoing findings and conclusions, and the
whole any losses suffered by employees The instant case is distinguishable
in that under the General Counsels theory the employees will receive no
benefit and will not be made whole
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record, and pursuant to Section 10(c) of the Act, I ORDER
hereby issue the following recommended Supplemental 2
The backpay specification is dismissed in its entirety
2 In the event no exceptions are filed as provided by Sec 102 46 of the adopted by the Board and become its findings conclusions and Order and
Board s Rules the findings conclusions and recommended supplemental all objections thereto shall be deemed waived for all purposes
Order herein shall, as provided in Sec 102 48 of the Board s Rules be