S.Q.I. Roofing

National Labor Relations Board - Board Decisions

Jun 28, 1984

271 N.L.R.B. 1 (N.L.R.B. 1984)

S.Q.I. ROOFING
S.Q.I. Roofing, Inc. and Local 54 of the United
Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association, AFL-CIO.
Case 19-CA-14855
28 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 3 June 1983 Administrative Law Judge Earl-
dean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port 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, as modified, and to adopt the Order as
modified and set forth in full below.
We agree with the judge's findings that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging employees Boyd, Campbell, Fogafa,
and Tacardon because they are union members and
because they protested the Respondent's stated in-
tention not to pay the contractually required wage
rate for weekend work. 2 In addition, we affirm the
judge's findings that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to notify
the Union about the scheduling of weekend work,
and by bypassing the Union and dealing directly
with employees regarding weekend work.3
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a We find it unnecessary to rely on the judge's alternative rationale in
fn. 18 for finding a violation based on an assumption the employees
walked off the job, rather than being ordered off by the Respondent.
3 We agree with the judge's refusal to defer the failure to notify issue
to the parties' grievance and arbitration machinery. The judge relied, in
part, on General American Transportation Corp., 228 NLRB 808 (1977),
which the Board recently overruled in United Technologies Corp., 268
NLRB 557 (1984). Nevertheless, we find that the interests of orderly pro-
cedure and fairness to all parties were best served by declining to defer
the notification issue. We note that that issue is related to the other com-
plaint allegations which the Respondent has not asked be deferred under
Collyer Insulated Wire, 192 NLRB 837 (1971). In view of the close inter-
relationship of the failure to notify allegation to the other complaint alle-
gations, which we necessarily must determine, there is no compelling
reason for deferring one aspect of the dispute to the grievance-arbitration
machinery. George Koch Song Inc, 199 NLRB 166 (1972). Member Zim-
merman would not defer, in any event, for the reasons stated by the
judge.
271 NLRB No. 3
We find, however, that the judge erred in con-
cluding that the Respondent unlawfully refused to
pay the contractual weekend wage rate. It is undis-
puted that, despite the Respondent's plan to pay
straight time for the weekend work at issue, the
Respondent in fact paid the proper double time
rate to the employees for their 4 hours of work on
Saturday, 31 July 1982. Accordingly, there is no
basis for finding that the Respondent did not
adhere to the contractual wage rate for weekend
work, and we will dismiss that allegation of the
complaint.
ORDER 4
The National Labor Relations Board orders that
the Respondent, S.Q.I. Roofing, Inc., Seattle,
Washington, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Dealing directly with its employees in dero-
gation of the Union's status as exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All journeymen roofers, apprentices, and pre-
apprentices employed by Employer-members
of the Association in the counties of Clallam,
Jefferson, King, Kitsap, Mason and Snoho-
mish, Washington, excluding office clerical
employees, guards and supervisors as defined
in the Act.
(b) Refusing to abide by the contractual provi-
sions that the Union be notified with regard to the
scheduling of work on Saturday and Sunday.
(c) Discharging or otherwise discriminating
against employees because the Union demands that
it pay them the weekend wage rates required by
the collective-bargaining agreement or because of
their other protected concerted activities.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Pursuant to contractual obligation, notify the
Union of the scheduling of work on Saturday and
Sunday and, on request, bargain with the Union as
the exclusive representative of the employees in the
I The four unlawfully discharged employees were offered uncondition-
al reinstatement about 16 August 1982. Accordingly, we eliminate the re-
instatement remedy from the Order. Further, we correct the judge's
omission of the unit description from the Order, and we modify the af-
firmative section of the Order to require compliance with, and bargaining
about, the specific contractual provisions concerning weekend work. We
therefore substitute a new Order and notice for that recommended by the
judge.
1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit described above regarding the scheduling of
weekend work.
(b) Make Philo Boyd, William Campbell, Joseph
Fogafa, and Clifford Tacardon whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its facility in Seattle, Washington,
copies of the attached notice marked "Appendix." 5
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed
by the Respondent'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 Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
s 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT deal directly with our employees
in derogation of the status of Local 54 of the
United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO,
as the exclusive collective-bargaining representative
of our employees in the bargaining unit:
All journeymen roofers, apprentices, and pre-
apprentices employed by Employer-members
of the Association in the counties of Clallam,
Jefferson, King, Kitsap, Mason and Snoho-
mish, Washington, excluding office clerical
employees, guards and supervisors as defined
in the Act.
WE WILL NOT refuse to abide by the contractual
provisions that the Union be notified with regard
to the scheduling of work on Saturday and
Sunday.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you because the Union demands
that we pay you the weekend wage rates required
by the collective-bargaining agreement or because
of your other protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, pursuant to contractual obligation,
notify the Union of the scheduling of work on Sat-
urday and Sunday and, on request, bargain with
the Union as the exclusive representative of the
employees in the unit described above regarding
the scheduling of weekend work.
WE WILL make Philo Boyd, William Campbell,
Joseph Fogafa, and Clifford Tacardon whole for
any loss of earnings and other benefits suffered as a
result of our discrimination against them, less any
net interim earnings, plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
S.Q.I. ROOFING, INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge.
This matter was heard before me in Seattle, Washingtion,
on February 15, 1983. The charge was filed by Local 54
of the United Slate, Tile and Composition Roofers,
2
S.Q.I. ROOFING
Damp and Waterproof Workers Association, AFL-CIO
(the Union) and was served on S.Q.I. Roofing, Inc. (Re-
spondent) on August 2, 1982. The second amended com-
plaint, which issued on January 24, 1983, alleges that Re-
spondent violated Section 8(a)(l), (3), and (5) of the Na-
tional Labor Relations Act (the Act). The basic issues
herein are:
I. Whether Respondent unlawfully refused to bargain
by bypassing the Union and directly soliciting employees
to agree to a change in their work schedule and by fail-
ing to follow the contractual procedure for changing the
work schedule and refusing to adhere to the contractual
wage rates.
2. Whether Respondent ordered certain employees off
the job and subsequently laid them off because they pro-
tested said unlawful refusal to bargain.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent has been, and
is now, an employer-member of the Roofing Contractors
Association (the Association) an organization composed
of employers engaged in roofing construction, which
exists for the purpose, inter alia, of representing its em-
ployer-members in negotiating and administering collec-
tive-bargaining agreements with various labor organiza-
tions including the Union. During the 12-month period
preceding the issuance of the complaint herein, which
period is representative of all times material herein, the
Association, in the course and conduct of its business op-
erations, had gross sales of goods and services valued in
excess of $500,000, and purchased and caused to be
transferred and delivered to its facilities within the State
of Washington goods and materials valued in excess of
$50,000 directly from sources outside said State or from
suppliers within said State which in turn obtained such
goods and materials directly from sources outside said
State.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Respondent's employees are covered by a collective-
bargaining agreement between the Association and the
Union effective, by its terms, from June 1, 1981, to May
31, 1985, which provides, inter alia:
ARTICLE IV
WORKDAY
Section A Eight (8) hours labor shall constitute a
day's work between the hours of 8:00 a.m. and 4:30
p.m., Monday through Friday, except where there
is a mutual agreement between the Local Union and
the shop to work other hours.
Section B All work performed before 8:00 a.m. or
after 4:30 p.m. shall be considered overtime. The
first two (2) hours of overtime shall be compensated
for at the time-and-a-half rate of pay. Additional
overtime shall be compensated for at the double-
time rate of pay. All work performed on Saturday,
Sunday or Holidays shall be compensated for at the
double-time rate of pay.
Section C The Employer agrees to notify the Union
by telephone no later than 4:00 p.m. Friday or the
day before a Holiday of any work intended to be
done Saturday, Sunday or on a Holiday. In case of
an emergency to preserve life or property occurring
after 2:00 p.m., the Union shall be notified immedi-
ately.
It is undisputed that Respondent had a contract to re-
roof a psychiatric clinic which required the work to be
done solely on weekends. It is also undisputed that the
five employees in Respondent's employ at the time were
notified of this weekend work requirement. It is further
undisputed that Respondent sought the agreement of the
employees' to work on Saturday and Sunday and to take
off either Thursday and Friday or Monday and Tuesday;
and that Respondent did not notify the Union of its
intent to work on the weekend of July 31. According to
Kotson, this was simply an oversight on his part. Ac-
cording to Kotson, it was only after he submitted his bid
for the clinic job that the customer stipulated that the
job had to be done on Saturday and Sunday so as to
avoid disturbing the patients. The client requested that
the work be performed on weekends at the bid price.
However, when computing the bid price, Kotson had
not taken into consideration penalty pay so he told the
client he would have to discuss it with the employees
and see if it could be done, which he did immediately
thereafter. There is some dispute as to whether Kotson
specifically informed the employees they would be com-
pensated for this weekend work at a straight-time rate.
However, it is clear that in seeking their agreement,
Kotson contemplated straight-time pay and that most of
the employees understood this2 since in the past they
had worked for Respondent on weekends for straight-
time pay to make up for days lost during the week.
The employees did agree to work on the weekend and
reported for work, as agreed, on Saturday, July 31,
1982. 3 About 11 a.m. that day, upon observing Respond-
Kotson or Gette spoke to some of the employees directly. Other em-
ployees learned of the situation from fellow employees.
2 Campbell testified that he was unsure as to whether they would be
paid at the straight-time rate or the double-time rate.
3 Unless otherwise indicated, all dates herein are in 1982.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's equipment at the clinic, Union Business Representa-
tive Brian Doherty stopped and approached the jobsite.
Herbert Gette, Respondent's superintendent, leaned over
the edge of the roof and greeted Doherty. According to
Doherty, he asked Gette if it was not an expensive day
to be working. Gette said, "If you are referring to the
overtime, you have to contact the owner." Doherty sug-
gested that because Gette had been identified as one of
the owners,4 he expected that Gette could reply to the
question. Gette then walked over to the person working
on the kettle, John Hill, who was not a member of the
Union 5 and had not been referred to perform roofing
work for Respondent in accordance with the referral
procedure of the collective-bargaining agreement. Do-
herty gave Hill a referral slip since he was performing
unit work.6 Gette and Hill testified in agreement with
Doherty that he first approached Gette and then he ap-
proached Hill regarding a dispatch slip. Gette also agrees
that when Doherty approached him, Doherty made a
comment to the effect that it was expensive to work on
Saturday. However, Gette testified that not only did he
suggest that Doherty discuss the matter with Respond-
ent's owner Jerry Kotson, he also told Doherty that this
was neither the time nor the place to discuss anything,
that the matter should be discussed with Kotson on
Monday.
It is undisputed that following this conversation, Gette
told the employees working on the roof that Doherty
was at the jobsite. According to employee William
Campbell, Gette asked him who called Doherty; to
which Campbell replied, "I didn't call him or I wouldn't
be here." According to employee Clifford C. Tacardon,
upon noticing that Gette was stomping around and ap-
peared angry, he asked, "What did we do wrong now?"
Gette replied, "Your union representative is here," and
then went over and kicked a unit in a corner of the roof.
Gette does not deny Tacardon's testimony in this regard.
However, he did testify that when he mentioned that
Doherty was on the jobsite, one of the employees asked
who called Doherty and another employee replied,
"We're all here, none of us called him." At the time,
Campbell, Tacardon, and employee Joe Fogafa were
working on the roof along with Gette.
After speaking with Hill, Doherty went up on the
roof. According to him, he immediately approached
Gette and Gette said, "If you are here to stop us from
working, you should be more concerned about the non-
union shops that are doing work and paying less and we
can't afford to pay the penalty pay as provided in the
contract and we're not going to pay the penalty pay as
provided in the contract." Doherty said the contract had
been signed by the Employer, therefore it was expected
that the penalty pay should be paid to employees who
worked on Saturday. 7 At this point, Gette told the em-
4 Gette owns one share of stock in Respondent.
5 The collective-bargaining agreement contains a union-security provi-
sion. All of Respondent's employees had been in Respondent's employ in
excess of the period set forth in the union-security clause.
6 Apparently Hill also does work for Respondent which is not covered
by the collective-bargaining agreement.
7 All of the employees working on the roof at that time had been re-
ferred by the Union.
ployees that they were to finish sweeping up the material
in the far corner of the roof where they were working,
get their tools, and leave the job. After Gette made this
statement, Doherty walked over to where the employees
were working and told them, "He says you are not get-
ting paid overtime." Doherty then left the roof. Doherty
denies that he told the employees to leave the job.
Campbell corroborates Doherty's testimony that he
first talked to Gette. Tacardon testified that Doherty and
Gette did have a conversation but he does not recall
whether Doherty spoke to Gette first, and did not hear
their conversation. According to Campbell, he heard a
portion of the conversation. Specifically, he heard Do-
herty ask Gette if he was paying double time for the
weekend work. Gette said, no, he was not going to. He
said he barely made enough money to pay straight time
and further said, "If you think I'm going to pay double
time, you can take these men off the roof or I'll send
them home myself." Gette then came over to Campbell,
told him to get the roof cleaned up and make sure the
kettle was full and head back to the shop.
Tacardon testified that Doherty spoke to the employ-
ees individually.8 According to him, when Doherty
came over to him, Doherty said they were not getting
overtime or penalty pay for working on a Saturday. At
this point, Gette said Respondent did not make enough
money or there were not enough jobs to be able to pay
double time, that the jobs were too hard to get but, if
they wanted to go with the Union, they could leave the
job and he could finish it himself. By this, Tacardon un-
derstood Gette to mean that he was going to finish the
job himself, he did not intend to pay double time, so the
employees could just leave. Campbell testified that he
does not recall Gette saying to the employees, "Take
your clothes and your tools if you're leaving." He does
recall Gette telling him to get the roof cleaned up, make
sure the kettle was full, and head back to the shop. He is
not sure if Doherty was still on the roof at that time. Ta-
cardon testified that Gette asked Doherty if it was all
right if they finished up what had been torn or cleaned it
up so they could get it sealed. Doherty said, yes. So the
employees remained and cleaned up the roof so that
Gette and Hill could cover it.
Gette testified that about 5 minutes after he told the
employees Doherty was on the jobsite, Doherty came up
on the roof and immediately went over and talked to the
three employees prior to having any conversation with
Gette. Doherty then came over to Gette and said the
men were working in violation of the working agree-
ment, they were working for straight time, not double
time, and Respondent had not reported to the Union that
they would be working Saturday. Gette agreed that Re-
spondent had not done so, and explained that Respond-
ent had made an agreement that the crew would be off
Thursday and Friday and work Saturday and Sunday.
Doherty said, "it's illegal, you're violating the contract."
Doherty then returned to the crew about 60 or 70 feet
8 Campbell testified that Doherty did not approach him.
4
S.Q.I. ROOFING
away and had a conversation with them which Gette did
not overhear.
After about 5 minutes, according to Gette, Doherty
approached him again and said the crew was working il-
legally in violation of the collective-bargaining agree-
ment and they were leaving. Gette again said the agree-
ment was that they would take Thursday and Friday off
and work Saturday and Sunday. Doherty said the men
are leaving and went over and spoke again to the em-
ployees. Doherty then returned and told Gette they were
leaving; whereupon Gette said, "If you men are leaving,
pick up your tools, change your clothes and go." Ac-
cording to him, he made this statement because no work
was being performed and only after Doherty informed
him that the employees were leaving. He specifically
denies that he told employees to leave the job prior to
Doherty's statement that the employees were leaving.
Gette also testified that Tacardon said he was not
paying one more nickle's worth of fines, that Respondent
was either union or nonunion and if it was nonunion, it
would abide by the contract and he was leaving. By this
time, Hill had come up on the roof. Doherty asked if
Hill was going to continue to work. Gette said that was
between Doherty and Hill, that there was work to be
done and, if Hill wanted to stay on the jobsite, it was
fine with him. Doherty asked Hill if he wanted to stay.
Hill said he was staying. Doherty said there would prob-
ably be repercussions later on down the road once this
was settled with the other men because Hill was staying
and taking their work. Then Doherty and the three em-
ployees left. However, according to Gette, before the
employees left the job he asked Tacardon, "Are you
really, truly going to leave me in this position?" Tacar-
don said they were union or nonunion and since they
were union, he was going to abide by the contract, he
was not going to pay a fine.
Hill testified that he went up on the roof about 20 to
25 minutes after Doherty did. When he arrived on the
roof, Doherty was talking to the crew and Gette was off
to one side. Hill could not hear the conversation between
Doherty and the other employees. According to him, the
conversation continued for another 15 or 20 minutes,
then the other employees left. He also observed Doherty
talking to Gette but the only thing that he distinctly
overheard was Doherty saying they would get fined if
they stayed and worked. He also heard some conversa-
tion between Gette and the other employees. He heard
Gette tell the crew that it was up to them whether they
stayed or went home, that if they were going to stay,
then go to work; and if not, go. The other employees
left. They said they had to leave because they were
threatened with fines by the Union. At one point, Do-
herty asked Hill if he was going to stay or leave. Hill
said he was going to stay. This was just before Doherty
left. The other employees had already started leaving the
roof. Doherty and the other employees left the roof at
the same time.
Campbell testified that when Doherty came up on the
roof he never approached Campbell nor did he call the
9 According to Gette, at one point, work completely stopped while the
employees stood around listening or talking to Doherty.
employees together as a group. He also denies that the
three employees left the roof at the same time. Accord-
ing to him, he left the roof first. He further testified that
he does not recall Tacardon saying anything to the effect
that he was not going to be fined another nickel by the
Union nor does he recall Doherty telling Gette that the
men were leaving. Tacardon also testified that Doherty
did not tell the employees to leave the jobsite nor did he
threaten to fine them if they stayed at the jobsite. Tacar-
don further testified that he does not recall Gette saying
to him as he was leaving, "Are you really going to leave
me like this?" According to him, he did ask Gette before
he left if he could get the job sealed off.' Gette said
yes, there would be no problem, to go ahead and leave.
Doherty had already left. Joe Fogafa and Tacardon later
asked Gette again if he could get the job sealed off.
Again Gette replied, "There's no problem, I'm covering
the roof."
Gette admits that the employees did not tell him they
were leaving nor did he hear Doherty tell the employees
to leave. Rather Doherty told Gette they were leaving.
Gette also testified that Tacardon returned to the jobsite
about 1:30 or 2 p.m. and reaffirmed his position that he
was not going to pay any fines, that they had been
threatened with fines and if they were caught back on
that jobsite when Doherty returned, they would be
fined. The General Counsel offered no rebuttal testimony
and during the presentation of the General Counsel's
case in chief, Tacardon did not testify as to any after-
noon conversation with Gette.
Tacardon testified that he reported to work on the
next regularly scheduled workday, Monday, August 2, at
the S.Q.I. shop. Fogafa, Gette, and Kotson were there.
According to Tacardon, Kotson said Respondent was no
longer applying hot tar roofing, that the employees
could go to the Union and get their checks and get paid
from them from then on. He further said that they could
return at 10 a.m. for their paychecks. Campbell testified
that when he reported for work at the shop on the morn-
ing of August 2, Kotson, Gette, and Hill were there. Ac-
cording to Campbell, Kotson told him that he was sorry
but he was no longer going to be a roof applicator or in
the roofing business, that he was tired of being harassed
by "the union commie son-of-a-bitch, Brian Doherty."
Kotson said his trucks were all for sale or lease and that
Campbell's paycheck would be ready around 10 a.m.
that morning. Employee Philo Boyd, who had not
worked on July 31 and, accordingly, had not left the job
that Saturday, testified that when he reported to work
on August 2, Kotson told him he was through, that the
men had walked off the job Saturday, that they had
made their choice, they had their choice between the
Union or the Company and they chose the Union.
Kotson also said that Boyd could pick up his checks
down at the union hall from that time on. He further
told Boyd to return at 10 a.m. for his paycheck. Gette
was present during this conversation and so was Hill for
a portion of the time.
to "Sealing off" refers to putting a base sheet down and glazing it, or
putting a one-ply covering over it.
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At 10 a.m., Boyd, Fogafa, Campbell, and Tacardon re-
turned to the S.Q.I. office, as instructed, to get their pay-
checks. According to the four employees, Gette, as well
as Kotson, was present. According to Tacardon, Kotson
said he was tired of the Union pushing him around,
being on him all the time, that he was no longer going to
do hot tar roofing and he was going to go into some
other business. Kotson further said that the employees
had left Gette standing on the job by himself to finish
up, that they had left the job wide open. Tacardon said
that Gette was the one who told them to leave. Kotson
said, "Well, Herb [Gette] done you guys a favor then by
telling you." Gette said, "Yes, I done you guys a favor."
Kotson said he would give Tacardon a recommendation
to work some place else. Tacardon said he did not need
one.
Campbell testified that Kotson gave them their checks
and asked if they would like to discuss it. Tacardon said,
"Well, I thought we pretty much discussed it this morn-
ing." Gette said they had left him there with his pants
down. Campbell said, "Well, everything was pretty
much up in the air. We didn't know which way to go.
We could have stayed and gone against the Union
bylaws and possibly faced a fine or left, which we did."
Gette said, "Bill, what would the fine have been? $300
or something like that? Look how much you've lost in
time and wages already." Tacardon said, "Well, you're
the one who told us to leave anyway." Gette replied,
"Well, I did that to make the decision easier for you."
Boyd testified that Kotson asked if anyone had any-
thing to say or wanted to discuss anything. Tacardon
said, there did not seem to be a whole lot to discuss.
Kotson said S.Q.I. was no longer a roofing contractor,
that his equipment was up for sale or lease, and he ges-
tured towards the window where Boyd could see a man
removing the S.Q.I. signs from the truck. Kotson said he
could not put up with the constant harassment from the
"communist son-of-a-bitches" in the Union. Tacardon
said they were told to leave the job by Gette and not by
Doherty. Gette said, "I made that decision for you, Clif-
ford, so you wouldn't have to make that hard of a deci-
sion, you know." Boyd said it could have been handled a
little differently. He told Gette that Gette should have
gone along with whatever was said that day, finished the
job, and then taken care of it later. Gette said he would
not accept the responsibility with S.Q.I.'s money and
promise to pay the crew double time. Boyd does not
recall exactly what Fogafa said during the meeting.
Kotson testified that he first learned of the July 31 in-
cident about 6:30 a.m. on Monday, August 2, when
Gette came in and informed him of what had hap-
pened."1 According to Kotson, Gette informed him that
Doherty had shown up on the job, there was a very
heated discussion between Doherty and Gette and a
work stoppage and threats of fines for the crew if they
remained on the job. The crew stopped working and just
stood around discussing the situation and then they left.
Gette reported that at the time the crew left, aproximate-
ly 35 squares had been torn off the roof and, in order to
secure the roof, Gette and Hill had to apply a base sheet
II Kotson was out of town during the weekend of July 31.
and a ply of felt set in hot asphalt to make it watertight.
According to Kotson, he discussed this slightly with
each of the employees as they reported to work on
Monday morning. The employees were told that they
were being discharged because they walked off the job.
No one told him they had been sent home by Gette. He
further testified that, with the exception of Boyd, he
spoke to each employee before making the decision to
terminate them. The decision had been made by the time
Boyd arrived.
Kotson made no attempt to relate exactly what was
said during his August 2 conversation with the dis-
charged employees. According to him, basically the
nature of the discussion was that he felt that the liability
with which the employees had left Respondent was com-
pletely unacceptable and inexcusable.' 2 Kotson further
testified that during this discussion, Tacardon made the
statement that he was not going to get fined again by the
Union. At the time he made that statement, the basic dis-
cussion was as to what had happened Saturday and the
threats of fines at that time. He is not sure whether Ta-
cardon made this statement when he first walked in or
whether it was in the 10 a.m. discussion.'3 When asked
why Boyd was terminated, Kotson testified, "Well, basi-
cally there were no men left. You can't run a crew with-
out foremen, so to speak." 14 Kotson further testified that
Tacardon, Fogafa, and Campbell were terminated for
leaving the job.' 5 When asked why Hill was not dis-
charged, Kotson testified, "Well, basically because he
continued to work and was also not a member of [Local]
54 before the 30th or the 31st." On cross-examination, he
testified that he decided to retain Hill because Respond-
ent had some work that had to be finished of the type
usually performed by Hill.
Gette testified that he explained to Kotson exactly
what had happened, that Doherty had come on the job-
site, there was some discussion as to whether Respondent
was working legally or illegally that weekend, and the
employees left Hill and Gette with 35 squares of roof to
be replaced. Gette further explained that Doherty had
come on the job stating that the crew was working ille-
gally and, if they remained on the jobsite, they would be
fined and that he would return to ensure that they did
not remain on the job. The employees chose to leave,
changed their clothes, and left. He further testified:
Q. When you say the men chose to leave, was it
their decision or your decision?
A. Well, there was nothing being done. The men
were standing around. There was a lot of milling
around going on. I told them that since they were
leaving that they should change their clothes and
12 By "liability," Kotson testified that had it rained and the roof had
not been put back, the liability would have been $50,000 to $150,000 for
damage to the interior of the building and furnishing.
13 According to Kotson, Tacardon had been fined previously by the
union during his employment with Respondent.
14 The foremen at that time were Fogafa and Tacardon.
:' Tacardon had worked for Respondent a little over 10 years; Fogafa,
7 to 8 years; and Campbell and Boyd for less than a year. Hill, the first
employee on Respondent's payroll, had about 6 months more seniority
than Tacardon.
6
S.Q.I. ROOFING
leave, that we had to get busy and got the roof
back on. This was after Doherty told me they were
leaving. I told them since they were leaving to
change their clothes, pick up their tools and leave.
Gette denies that he was present on Monday morning
when Kotson spoke to the employees either initially or
when they returned at 10 a.m. to get their paychecks.
B. Conclusions
I. Respondent's contention that certain allegations
should be deferred to the grievance-arbitration
procedure
The complaint alleges that Respondent has violated
Section 8(a)(5) and (1) of the Act in that it refused to
abide by the contractual provisions requiring that the
union be notified with regard to the scheduling of work
on Saturday and Sunday. The contract provides for a
Monday through Friday workweek except where there
is mutual agreement between the Employer and the
Union, and further that the Employer notify the Union
no later than 4 p.m. Friday of any work intended to be
performed on Saturday or Sunday. It is undisputed that
Respondent did not so notify the Union. I do not credit
Kotson that this omission was inadvertent. Rather, I con-
clude that Respondent deliberately failed to notify the
Union because of its intent not to comply with the Satur-
day and Sunday penalty pay provisions of the collective-
bargaining agreement.
Respondent argues that in view of the Union's August
12 grievance protesting the failure to notify the Union,
this allegation of the complaint should be deferred to the
grievance-arbitration procedure established by the collec-
tive-bargaining agreement. The Board's policy is that de-
ferral is appropriate only in those situations where the
dispute is essentially between the contracting parties and
there is no alleged interference with individual employ-
ee's basic rights under Section 7 of the Act. General
American Transportation Corp., 228 NLRB 808 (1977);
Roy Robinson Chevrolet, 228 NLRB 828 (1977).
Here, the failure to notify the Union is inextricably
interwoven with the allegations of direct dealings with
employees and the refusal to pay the contractual wage
rate, which allegations constitute an essential facet of the
alleged unlawful motivation for the discharges herein. In
such circumstances, I find it inappropriate to defer to the
grievance-arbitration procedure the allegation relating to
Respondent's failure to notify the Union of its intent to
work weekends on the psychiatric clinic job. I further
find that such failure was violative of Section 8(a)(5) and
(1) of the Act.
2. Other refusal-to-bargain allegations
It is undisputed that Respondent solicited the agree-
ment of its employees to work on the psychiatric clinic
job on weekends and that implicit in the solicitation was
an agreement to straight-time compensation for this
weekend work. The contract specifically provides for a
workday between 8 a.m. and 4:30 p.m., Monday through
Friday, except where there is mutual agreement between
the employer and the Union to work other hours and
that weekend work be compensated for at the double-
time rate of pay. Yet the Union was never notified of
Respondent's plan to work on the weekend and was thus
deprived of any opportunity to bargain with regard
thereto as clearly contemplated by the collective-bar-
gaining agreement. In these circumstances, I find that
Respondent bypassed the Union and dealt directly with
its employees in violation of Section 8(a)(5) and (1) of
the Act.16 Friederich Truck Service, 259 NLRB 1294
(1982).
The complaint alleges that Respondent unlawfully re-
fused to adhere to the contractual wage rates for week-
end work. Respondent argues that this allegation is clear-
ly without merit since the employees were in fact paid
double time for the hours they worked on Saturday, July
31. 1 find this argument unconvincing. It is clear from
the record that Respondent accepted the condition that
work on the clinic be restricted to weekends only be-
cause it intended to pay employees at the straight-time
rate of pay rather than the double-time rate of pay re-
quired by the collective-bargaining agreement and, as
discussed above, that this intent was implicit in its solici-
tation of employees to work weekends. In this regard, I
note that Gette admits that Doherty told him on July 31
that the employees were working for straight-time com-
pensation in violation of the contract, an observation
which Gette did not deny. Instead, Gette explained that
Respondent had an agreement with the employees to
switch off days. Furthermore, as discussed below, Gette
told Doherty and the employees that Respondent would
not pay overtime. It was only after the Union challenged
Respondent's plans to compensate employees at the
straight-time rate that Respondent in fact paid them at
the double-time rate for the approximately 4 hours they
worked on Saturday, July 31. In the circumstances, I
find that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to adhere to the contractual wage
rate for weekend work.
3. The 8(a)(l) allegations
The complaint alleges that Respondent ordered its em-
ployees off the jobsite and subsequently terminated them
in violation of Section 8(a)(3) and (1) of the Act. Re-
spondent argues that this alleged conduct, in fact, never
occurred. Specifically, Respondent contends that Gette
never ordered the employees off the roof. In this regard,
Gette testified that it was only after Doherty had already
informed him the employees were leaving that he told
the employees "if you men are leaving, pick up your
tools, change your clothes and go."
It is undisputed that Tacardon, Campbell, and Fogafa
did leave the job and Respondent admits that they were
discharged therefor. However, Respondent contends that
their leaving could not have been in protest of Respond-
ent's alleged conduct of bypassing the Union and refus-
ing to pay the contractually required double-time wage
16 In reaching this decision, I have thoroughly considered, and reject,
Respondent's argument that its conduct was not unlawful inasmuch as
Respondent was not "bargaining" with the employees since "this subject
had already been bargained about with the Union, [and] any bargaining
obligation owed to the Union had already been discharged."
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rate since the employees had agreed to work for the
straight-time rate. I am unpersuaded by this argument. I
credit Doherty, Tacardon, and Campbell that Doherty
did not tell Gette the employees were leaving but that
Gette told them to leave. Their testimony is mutually
corroborative. Gette admitted on that following Monday
that he had done so. 1 7
Further, the record indicates, and Kotson admits, that
Respondent had entered into a contract to perform this
job based on paying straight-time wages. The collective-
bargaining agreement is quite clear and unambiguous that
employees are to be paid double time for weekend work
and Gette must have realized, upon Doherty's discovery
of the work in progress at the clinic, that Respondent
would be required to pay double-time wages at a consid-
erable financial loss to Respondent. The testimony of the
General Counsel's witnesses as to Gette's insistence that
Respondent was not going to pay double time and, in es-
sence, that if they were insisting on double time they
could leave, is more consistent with the economic reali-
ties confronting Gette that morning than is his and Hill's
testimony that Gette indicated that he wanted them to
remain.
The testimony as to the water damage liability that
could have occurred in the event of rain does not change
this conclusion. Obviously Gette thought there was a
good chance it would not rain or he would not have
commenced the work and Gette and Hill were in fact
able to secure the roof. Further, I conclude that Gette
realized that, if requested, the employees would have re-
mained at work to secure the roof and/or to complete
the job but that the Union would demand that they be
paid in accordance with the wage provisions of the col-
lective-bargaining agreement. In all of the circumstances,
I find that the employees did not have the option of re-
maining on the job but rather they were ordered off the
job by Gette because he did not want to risk that almost
certain liability of double-time pay if they remained.'8 In
these circumstances, and in view of the fact that Boyd
was also discharged even though he did not work that
Saturday and thus did not leave the job, and Kotson's
admission that Hill was retained in part because he was
not a member of the Union, I find that the employees
were discharged because the Union insisted that Re-
spondent adhere to the wage rates set forth in the con-
" I do not credit Gette's denial that he was present during the
Monday conversations nor Kotson's denial that the employees did not
tell him Gette had told them to leave. Tacardon, Campbell, and Boyd all
testified that he was present and made certain statements and Kotson did
not deny Gette's presence.
la In reaching this conclusion, I have fully considered, and reject, Re-
spondent's argument that the employees walked off the job and that such
conduct was not protected because of an implied no-strike provision
based on the grievance-arbitration provision of the collective-bargaining
agreement. Teamsters Local 174 (Lucas Flour Co.), 369 U.S. 95 (1962);
Mastro Plastics Corp,, 350 U.S. 270 (1956); Arlan's Department Store, 133
NLRB 802 (1961). However, even assuming arguendo that the employees
walked of the job, it was in protest of Respondent's failure to pay the
contractual wage rate and, therefore, was protected concerted activity
under the Act. Further, assuming the existence of an implied no-strike
provision, it is well established that, absent express statements to the con-
trary, a no-strike provision does not apply to unfair labor practice strikes.
Servair, Inc., 236 NLRB 1278 (1978).
tract. Accordingly, I find that Respondent thereby vio-
lated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining:
All journeymen roofers, apprentices, and pre-ap-
prentices employed by Employer-members of the
Association in the counties of Clallam, Jefferson,
King, Kitsap, Mason and Snohomish, Washington,
excluding office clerical employees, guards and su-
pervisors as defined in the Act.
4. At all times material herein, the Union has been, and
is now, the exclusive representative of all employees in
the aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. It would not effectuate the purposes of the Act to
defer to the grievance-arbitration provisions of the col-
lective-bargaining agreement for resolution of any issue
involved herein.
6. By bypassing the Union and dealing directly with its
employees; by refusing to abide by the contractual provi-
sions that the Union be notified with regard to the sched-
uling of work on Saturday and Sunday; and by refusing
to adhere to the contractual wage rate for weekend
work, Respondent has committed unfair labor practices
in violation of Section 8(a)(5) and (1) of the Act.
7. By discharging employees Clifford Tacardon, Wil-
liam Campbell, Philo Boyd, and Joseph Fogafa because
they protested Respondent's refusal to pay the weekend
wage rates required by the collective-bargaining agree-
ment and/or because they are members of the Union,
Respondent has committed unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act.
8. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and take certain affirma-
tive action in order to effectuate the purposes of the Act.
Having found that Respondent unlawfully discharged
Clifford Tacardon, William Campbell, Philo Boyd, and
Joseph Fogafa in violation of Section 8(a)(3) and (1) of
the Act, I shall recommend that to the extent it has not
already done so, Respondent be ordered to offer each of
them immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make
each of them whole for any loss of earnings he may have
8
S.Q.I. ROOFING 9
suffered by reason of the discrimination against him, plus Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
interest, in the manner prescribed in F. W. Woolworth NLRB 651 (1977). 19
[Recommended Order omitted from publication.]
I" See generally Isis Plumbing Co., 138 NLRB 716 (1962).