Terri-Flex Products, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 3 (N.L.R.B. 1972)

TERRI-FLEX PRODUCTS
Terri-Flex Products, Inc. and Phoenix Roofers' Union
Local No. 135, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Associa-
tion, AFL-CIO. Cases 28-CA-2428 and 28-CA-
2492
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On May 4, 1972, Administrative Law Judge' Leo
F. Lightner issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and supporting briefs and the General Counsel
filed exceptions and an answering 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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
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 Respondent Terri-Flex Products,
Inc., Phoenix , Arizona, its officers , agents, succes-
sors, and assigns, shall take the action set forth in
said recommended Order, as modified.
1. Delete section 2 (f) of the recommended Order,
renumbering the succeeding paragraphs consecutive-
ly.
2. Substitute the attached Appendix for the
Administrative Law Judge ' s Appendix.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 The Administrative Law Judge concluded that Respondent ' s defense
was frivolous and thus recommended that it be ordered to reimburse the
Board and Charging Party for various expenses they incurred in the
litigation of this case Both Respondent and the General Counsel excepted
to this conclusion and recommendation We find ment in these exceptions,
for the substance of Respondent 's defense does not bring it clearly within
the intent of our decision in Tudee Products, Inc, 194 NLRB No 198, cited
by the Administrative Law Judge in support of his result Consequently, we
delete from our order the recommended reimbursement of litigation
expenses
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
3
WE WILL, upon request, recognize and bargain
with Phoenix Roofers' Union Local No. 135,
United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association,
AFL-CIO, as the exclusive representative of all
the employees in the bargaining unit described
below, with respect to rates of pay, wages, hours
of employment, and other terms and conditions
of employment, by executing the agreed upon
1971-73 Association Agreement. The bargaining
unit is:
All foremen, journeymen and apprentice
roofers employed by employer-members of
the Association, but excluding all other
employees, including guards, watchmen, and
supervisors as defined in the Act.
WE WILL NOT discourage membership in
Phoenix Roofers' Union Local No. 135, United
Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association, AFL-CIO, or
any other union, or discourage the free exercise of
rights guaranteed by Section 7 of the Act, by
discriminating against any employee in regard to
his hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interfere with, restrain, or coerce
our employees by interrogating them relative to
their union activity, or by conducting a poll of all
our employees relative to their desires for union
representation, in a manner violative of the
provisions of Section 8(a)(1) of the Act.
WE WILL NOT interfere with, restrain, or coerce
our employees by threatening, if a union is chosen
as their collective-bargaining representative, by
way of retaliation, the plant will be shut down, or
that there will be less work for union employees,
or that their work will be more carefully scruti-
nized and mistakes could result in discharge.
WE WILL NOT fail or refuse to remit to the
Union initiation fees, or dues, deducted pursuant
to valid checkoff authorizations, which have not
been rescinded.
WE WILL NOT fail or refuse to comply with the
terms of the Association's collective-bargaining
agreement by paying wage rates less than therein
provided, or by failing to make payments, as
provided therein, to a Health and Welfare Fund,
Pension Fund, Vacation Savings Fund, or Ap-
prenticeship Fund.
200 NLRB No. 2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist the above-
named Union or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in any other
concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL pay into Arizona Basic Craft's Health
and Welfare Fund, and Pension Trust Fund, all
payments due, on and after April 2, 1971, under
the 1968-71 Association Agreement, with interest,
at the rate of 6 percent per annum, and all
payments due to said funds and the Apprentice-
ship Trust Fund and Vacation Savings Fund,
under the 1971-73 Association Agreement, on
and after June 1, 1971, with interest, at the rate of
6 percent per annum, from the due date of each
such payment.
WE WILL pay to the Union all initiation fees,
which have been deducted pursuant to valid
checkoff authorizations, or which should have
been checked off, where said authorizations were
not validly revoked, together with interest at the
rate of 6 percent per annum, from the due date of
each such payment.
WE WILL make whole Anthony Passerrelli for
any loss of pay he has suffered by reason of our
discrimination against him, in laying him off I
day, in September 1971, with interest at the rate
of 6 percent per annum.
WE WILL pay to each employee, on our payroll,
and within said unit, on and after April 2, 1971,
the difference between the hourly rate paid to
said employee and the hourly rate which should
have been paid, under the terms of the 1968-71
agreement, for the period between April 2 and
June 1, 1971, and under the terms of the 1971-73
agreement, for all periods commencing June 1,
1971, and thereafter, with interest at the rate of 6
percent per annum, from the date of each payroll
period, including, but not limited to the following
named employees:
Antonio Ramos Avila
Harry L. Beltz
Vern L. Breuer, Jr.
Joe R. Calvillo
Kenneth R. Carson
Edward M. Caudill
James Chambers
Barney S. Chavez
Mike G. Chavez
William Chevez
David B. Mesa, Jr.
Gregory B. Moncayo
Allan Moore
Clifford J. Morley
Michael J. Morrison
Richard N. Olson
Edward M. Ordaz
Anthony Passerrelli
Jonathan Petlock
Jerry Pfeifer
Andres Contreras
Delfino Contreras
Gary D. Cook
Charles D. Cozby
Gerald L. Cross
Lawrence J. Duplisea
Stanley E. Eide
Eddy A. Floyd
William D. Grose
Kenneth W. Harvill
Richard Lee Hays
James E. Heins
Jose L. Hernandez
Lorenzo Hernandez
Larry E. Lane
Ronnie G. Lopez
Leonard Lister
Kevin E. Maassen
Pedro D. Manriquez
Khyl Powell
Paul Rangel
James N. Rinella
Alexander Rodriquez
Johnny Ruelas
Eric D. Sanchez
Fred R. Sanchez
Javier Sanchez
Martin R. Smartt
David A. South
Charles F. Tate
John R. Tavares
William Troesh
Paul J. Updike, Jr.
Willie Villalobos
Danny Walthers
Henry M. Walthers
Dean Youngstrand
Eddie D. Villalobos
Juan Meraz
All of our employees are free to become and
remain members of the above-named Union, or to
refrain from becoming or remaining members of said
Union.
TERRI-FLEX PRODUCTS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Camelback Building, Room 207, 110
West Camelback Road, Phoenix, Arizona 85013,
Telephone 602-261-3717.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Phoenix, Arizona, on February 1 and 2,
1972, on the complaints of General Counsel, as amended,
and the answers, as amended, of Terri-Flex Products, Inc.,
herein called the Respondent.' The complaints allege
I A charge was filed, in Case 28-CA-2428, on October I A complaint
was issued, in that case, on December 17, and amended at the outset of the
TERRI-FLEX PRODUCTS 5
violations of Section 8(a)(5), (3), and (1) and Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as
amended, (61 Stat. 136, 65 Stat. 601; 73 Stat. 519; 29
U.S.C. Sec. 151 et seq.), herein called the Act. The parties
waived closing argument, and briefs filed by the General
Counsel and Respondent have been carefully considered.2
Upon the entire record, and from my observation of the
witnesses , I make the following:
FINDINGS AND CONCLUSIONS
in interstate commerce directly from States of the United
States other than the State in which it is located.
The complaints allege , the answers , as amended , admit,
and I find that the Association has been engaged in
performing , inter aka, the function of negotiating and
entering into collective -bargaining agreements , on behalf
of its employer-members, with the Union.
The complaints allege , the answers , as amended , admit,
and I find that Respondent and the Association are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
1. THE BUSINESSES OF THE RESPONDENT AND
ASSOCIATION
The complaints, as amended, allege, the answers, as
amended, admit, and I find that Respondent is an Arizona
corporation with its principal office and place of business
in Phoenix , Arizona, where it is engaged in the roofing
business. Respondent, during the year immediately preced-
ing the issuance of each complaint, a representative period,
purchased goods and materials valued in excess of $50,000
from suppliers located in States of the United States other
than the State of Arizona, which were delivered to
Respondent at its place of business.
The complaints allege, the answers, as amended, admit,
and I find that at all times material the following named
employers have been part of a multiemployer bargaining
group, known as the Central Arizona Roofers Association,
herein referred to as the Association:
1. Advance Roofing Co.
2 Anchor Roofing Co.
3. Asbestos Engineering & Supply Co.
4. Beau 's Roofing Co.
5. C & H Roofing Co.
6. City Roofing Co.
7. Custom Roofing Co.
8. Hay's Roofing Co.
9. King's Roofing Co.
10. Milt Dean Roofing & Maintenance Co
11. Paul's Roofing Co.
12. Pioneer Roofing Co.
13. Reliable Roofing Co.
14. Standard Roofing Co.
15. Stiles, Allen & Reimer
16. Sun City Roofing Co.
17. Universal Roofing Co.
While the complaints allege that Respondent was a
member of the Association, Respondent asserts a defense
at variance. Accordingly, this allegation is considered and
resolved infra.
The complaints allege, the answers, as amended, admit,
and I find that the employers identified are engaged in the
roofing business in the metropolitan area of Phoenix,
Arizona. During the year preceding the issuance of each
complaint, a representative period, the employers, who are
members of the Association, caused to be transported to
their places of business goods and materials valued in
excess of $50,000 from enterprises located in the State of
Arizona, each of which had received goods and materials
hearing herein A charge was filed, in Case 28-CA-2492, on December 13
A complaint was issued , in that case , on January 3, 1972 The cases were
consolidated for hearing by Order dated January 3, 1972 All dates herein
II. THE LABOR ORGANIZATION INVOLVED
Phoenix Roofers' Union Local No. 135, 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 ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the complaints and
answers and litigated at the hearing are whether the
Respondent: (1) Since on or about April 2 has refused,
upon request , to recognize the Union as the exclusive
collective-bargaining representative of its employees, in a
multiemployer unit, or has repudiated a collective-bargain-
ing agreement by unilaterally changing the terms and
conditions of employment of its employees relative to
hiring procedures , wages, and fringe benefits such as health
and welfare and pension fund contributions , and has thus
engaged in conduct in derogation of the provisions of
Section 8(a)(5) and (1) of the Act; or (2) on an unspecified
date, in the middle of September, discriminatorily suspend-
ed Anthony Passerrelli , for one day, thus engaging in
conduct violative of the provisions of Section 8(a)(3) and
(1) of the Act; or (3) engaged in conduct constituting
interference , restraint , and coercion , violative of Section
8(a)(1), by: (a) Deducting dues and initiation fees from
employees ' wages, pursuant to written authorizations, and
failing and refusing thereafter to transmit said deductions
to the Union, or refusing to return said deductions to
employees , upon request , unless and until employees
withdrew their support and assistance of the Union; or (b)
by Filbert Terrazas, in September, threatening employees
with termination and other reprisals if they became or
remained members of the Union or gave any assistance or
support to it; or (c) by Filbert Terrazas, on or about
October 29, advising an employee he would rather close
the plant than recognize and bargain with the Union; or
(d) by Filbert Terrazas, on or about October 29, threaten-
ing employees that they would receive less work than
employees who were not union supporters; or (e) by
Filbert Terrazas, on or about October 29, warning
employees that those who supported the Union would be
fired for making one mistake at work; or (f) by Filbert
are 1971 , except where otherwise indicated.
2 The parties are commended for the helpfulness provided by the briefs
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terrazas, or an agent whose identity was unknown, in
October interrogating employees concerning their member-
ship and activities on behalf of, and sympathy in and for,
the Union.
Respondent, by answer, denied the commission of any
unfair labor practice. While Respondent set forth no
affirmative defenses, in its answers, during the hearing, it
did urge, what General Counsel in his brief aptly describes
as, different and contradictory reasons for avoidance of its
contractual obligations.
1. Supervisory personnel
The complaints allege, the answers admit, and I find that
Filbert Terrazas, president, and John F. Peterson, Sr., vice
president, at all times material, were agents of the
Respondent and supervisors within the meaning of Section
2(11) of the Act.
I also find, for reasons explicated infra, that Harry E.
Musgrove, vice president in charge of sales, was an agent
of Respondent relative to his attendance at, and actions
during, meetings of Association members.
2. Background
a. Existence of multiemployer association, collective-
bargaining agreements, and related matters
Robert Lee Wardle is secretary-treasurer of Asbestos
Engineering and Supply Company. His company has been
associated, as a member, with Central Arizona Roofers
Association for 9 or 10 years. He was president of the
Association from June, 1970 until May, 1971.3
Wardle credibly related that the Association obtained
authority to negotiate collective-bargaining agreements, on
behalf of its membership, through regular attendance of
members at Association meetings, where members are
brought up to date on demands and participate in
decisions relative to negotiations by vote. Regular meetings
of the Association are held on the second Tuesday of each
month. Preceding the period of negotiations, members are
notified of the pendency of negotiations by telephone.
Membership on the negotiation committee is voluntary,
and selection is made at a general meeting. Members are
notified by telephone of special meetings during contract
negotiations. Wayne I. Mullis, president of the Association
since April, 1971, corroborated Wardle.
Wardle identified the collective-bargaining agreement
negotiated by the Association, on behalf of its members,
whose identities are set forth in the agreement, for the
period commencing June 1, 1968, and terminating, on
appropriate notice, on May 31, 1971.4 Wardle related that
while the Association negotiated the agreement, each
member executed a copy of the agreement.
Among the provisions with which we are herein
concerned are the following: Article IV provides a starting
rate for apprentices, commencing on June 1, 1970, of $3.18
per hour (described as 60 percent of the journeyman rate of
$5.30, and progressing in steps of 10 percent or 5 percent
each 6 months over a period of 3 years); a foreman's rate,
commencing June 1, 1970, of $5.55 per hour; Article IV
also provides for payments, by the employer, to Arizona
Basic Crafts Health and Welfare Trust Fund, during the
period from June 1, 1969 through May 31, 1971, of 20
cents an hour for all classifications; and a payment, by the
employer, to the National Roofing Industry Pension Fund,
effective September 1, 1968 through May 31, 1971, of 10
cents an hour for all classifications; Article VI provides
that a crew shall consist of five men or less , each crew shall
have at least one foreman, one apprentice shall be allowed
for three journeymen; Article XII provides, inter alia, that
jurisdictional disputes will be settled under the plan and
procedure set forth by the National Joint Board, approved
and adopted by the Building and Construction Trades
Department, AF of L; Article XIV provides for deduction
of union initiation fees upon appropriate authorization,
and remittance to the Union "not later than the 10th of the
month following the month in which the deductions were
made."
Wardle related that the Association's negotiating com-
mittee, selected at a general meeting, inferentially in April
or May, 1971, was comprised of Wardle, Graham from
Reliable Roofing, Schnver from Standard Roofing, and
Mullis from Universal Roofing. The Union was represent-
ed by Daniel McKeever, business agent, and three union
members. Negotiations started in May, and the committee
reported the results of negotiations to the membership at
the regular meeting, and obtained approval relative to
proposed counter offers. The committee also advised each
contractor of special meetings , which were held for
consideration of Union proposals and the Association's
counterproposals. Negotiating sessions were held daily.
Absent agreement, the Union commenced a strike on
June 1, which terminated on June 9.
Wardle identified a tentative agreement, entered into on
June 4, later incorporated into the new agreement as
Article 11(c).
On June 9, the Association and Union arrived at a new
agreement, to be effective as of June 1, and terminating on
May 31, 1973. However, this agreement, by reason of
Executive Order 11588 of the President of the United
States, was subject to approval by the National Construc-
tion Industry Stabilization Committee, hereinafter CISC.
Among the modifications of the former agreement,
contained in the June 9th agreement, are the following:
Article II(c) provides for 1/2-hour travel time , at straight
time pay, where an employee reports directly to the job,
and it is located within 25 miles of the hiring hall, or 1
hour's straight time pay, if the job is located between 25
and 50 miles from the local hiring hall; Article IV(a)
provides for a payment, by the employer, of 30 cents an
hour for all classifications to the Arizona Basic Crafts
Health and Welfare Trust Fund, effective June 1, continu-
3 The confusion of the term of office, which may have terminated in
April according to Wardle's successor, Mullis, I deem of no consequence
4 The following firms, listed supra, are not listed and thus do not appear
to have been the members of the Association at the time this agreement was
entered into Beau's Roofing Co ; C& H Roofing Co ; Hay's Roofing Co ,
Milt Dean Roofing & Maintenance Co, Paul's Roofing Co, and Universal
Roofing Co However , their names , as well as that of Respondent, do
appear in a subsequent 1971-1973 agreement , infra Mullis, president of
Universal, related his firm had been a member of the Association for 3
years It is reasonable to infer the other listed roofing companies joined the
Association before June 1
TERRI-FLEX PRODUCTS 7
ing through May 31 , 1973; Article IV(b) provides for
payment , by the employer , of 20 cents an hour for all
classifications to be paid to the National Roofing Industry
Pension Fund , effective June 1 , and continuing until May
31, 1973 ; Article IV(c) provides for payment of an
additional 50 cents per hour , an increase of 25 cents per
hour, in the application , tearing-off , or repairing of any
pitch or enamel material for all classifications , effective
June 1 , and an increase to 75 cents per hour additional,
effective June 1 , 1972; Article IV(g) provides for a raise in
the hourly rate of employees , effective June 1 , of $1 per
hour (However , as set forth in the association letter of
November 1, infra, the wage increase was 80 cents; the
remainder was an increase of 10 cents to Pension Fund and
10 cents to Health and Welfare Fund.); a further raise,
effective December 1, of 50 cents per hour, and a further
raise , effective June 1, 1972, of $1 per hour ; Article IV(g)
provides for starting rates, effective June 1 , for lead
foreman $6 .60 per hour , subforeman $6.35 per hour,
apprentices $3.66 per hour , with higher rates for appren-
tices with 6 months or more experience , and higher rates
for all classifications beginning December 1, and again
beginning June 1 , 1972. Article XVIII , Apprenticeship
does not appear in the 1968-1971 agreement. It provides,
inter aka:
(b) The Contractors and the Union have established
and are operating a State Joint Apprenticeship Com-
mittee and the Contractor shall pay into the Appren-
ticeship Trust Fund two (2 ) cents per hour for each
hour worked for the financing of this program. This
amount shall be matched by members of Roofers'
Local No. 135. Employer shall deduct this amount
from employee 's weekly pay, and remit with his like
sum to this Apprenticeship Trust Fund . .
(d) All parties agree that they will maintain only the
number of apprentices in the Program for which the
Industry can supply employment;
(e) For an Employer to be eligible for an apprentice, he
must have a minimum of two (2) journeymen em-
ployed . An Employer may secure additional appren-
tices on the basis of one (1) apprentice for each three
(3) journeymen employed.
Article XIX , Vacation Plan, also does not appear in the
1968-1971 agreement. It provides, inter aka:
(a) The Employer shall withhold from the weekly pay
of each employee subject to this Agreement the
following amount for the number of hours for which
each employee receives pay. This withholding shall
thereafter be referred to as a Vacation Savings
deduction . Effective June 1 , 1971, the Vacation Savings
deduction shall be twenty-five cents for each hour of
work and continue the same to the termination of this
Agreement;
(b) This Vacation Savings deduction will be sent
monthly by Employer and deposited into Valley
National Bank-Home Office . A reporting form will be
furnished each Employer signatory to this Agreement.
This reporting form shall be made up in four (4) copies,
and will incorporate the Vacation Savings deduction
and the Apprentice Trust Fund deduction . Distribution
of. these four (4) copies will be as follows : One (1) copy
to accompany the payment monthly to Valley National
Bank ; one (1) copy will be retained by Employer for his
records; one (1) copy will be sent to the Union office
for their records; and one ( 1) copy will be posted
"Bulletin Board" style at the shop or office of the
Employer for inspection by all employees of the
Employer covered by this Agreement . This copy shall
be placed on the Bulletin Board at the time original is
sent to Valley National Bank and remain until it is
replaced by the succeeding monthly report .. .
Article IV(g) of the 1968-1971 Agreement and Article
IV(f) of the 1971-1973 Agreement provide , inter alia:
The Employers further agree that each employee shall
be given with each check a detachable statement from
his Employer showing the name of the Employer,
address and telephone number, date , and pay period
covered , the employee 's straight time hours, overtime
hours , total hours , also subsistence and travel allow-
ance and gross amount earned, Social Security tax,
withholding tax and other deductions itemized .. .
On June 9, the Association and the Union entered into
what is styled an Interim Agreement which , by its terms,
provide for the continuation of the 1968 -1971 agreement,
pending approval of the 1971-1973 agreement by the
CISC, at which time the new industry agreement, if
approved , was to be executed by the parties, with the terms
retroactive to June 1. The Interim Agreement , by its terms,
automatically expired on August 31. The Interim Agree-
ment was executed by the individual employers.
McKeever credibly related that the members of the
Association signed an interim agreement on August 13,
providing for a further extension of the 1968-1971
agreement, pending approval of the negotiated wage
increases and benefits by CISC, and providing for
retroactive application to June 1 . This interim agreement,
by its terms , expired on November 30.
On October 6, by letter of D. Quinn Mills , Secretary,
CISC advised that it had , on October 1, approved the
proposed economic adjustments effective June 1 , and that
the parties "were free to place them into effect ," however,
the committee returned the remaining wage and salary
increments and changes in working conditions without
approval, and suggested modification and resubmission.
On November 1, by letter signed by Mullis , president,
and Wardle, negotiating committee chairman, the mem-
bers of the Association were advised , inter alia, that CISC
had approved an 80 cents per hour increase in wages, a 10
cents per hour increase in pension contribution, and a 10
cents per hour increase in Health and Welfare contri-
bution , making a total increase of $1 per hour. Other
conditions requiring resubmission included: (1) Wage
increase, December 1; (2) Wage increase , June 1 , 1972; (3)
Premium for pitch work ; (4) Subsistence increase ; and (5)
Zone pay. The letter asserted an assumption of approval of
the vacation deduction and apprenticeship fund deduction
which were activated.5
I find it reasonable to infer from the recitation of
5 My ruling rejecting this exhibit is modified, and it is hereby received,
solely to reflect the conditions approved
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKeever, relative to the current status of the 1971-1973
agreement, infra, that the parties did execute a further
extension, beyond November 30.
Under date of December 20, by letter, CISC advised that
it had found acceptable the economic adjustments provid-
ed for in the contract to take effect on June 1, 1971 and
June 1, 1972. However, the committee returned the
increase in pitch premium, without approval, and advised
that those provisions should be modified by the parties and
resubmitted.
McKeever credibly related that CISC had approved the
pay rates and other benefits, and, at the time of the
hearing, the Union and the Association were modifying the
wording of the agreement to conform to the action of
CISC, to be executed by the members. Wardle corroborat-
ed this assertion of McKeever. It is patent that these
modifications were effective retroactively to June 1.
b. Appropriate unit and the Union 's majority status
The complaint in Case 28 -CA-2428 alleges and the
answer denies the existence of a multiemployer Association
unit comprised of foremen , journeymen, and apprentice
roofers, and excluding all other employees.
Article I (a) of the 1968-1971 agreement is a recognition
clause and grants recognition to the Union as the exclusive
collective-bargaining agent for the employees as classified
in Article IV, i. e ., foreman , journeyman and apprentice
classifications . Accordingly , I find that the Association has
recognized and bargained with the Union , at all times
material herein , and for an undefined period of years, as
the exclusive collective -bargaining representative within
the meaning of Section 9(a) of the Act, for the following
employees, who constitute a unit appropriate for the
purposes of collective bargaining , within the meaning of
Section 9(b) of the Act:
All foremen , journeymen and apprentice roofers
employed by employer-members of the Association,
but excluding all other employees , including guards,
watchmen , and supervisors as defined in the Act.
McKeever credibly related that the Union, at all times
material herein , has represented a majority of the employ-
ees in the unit described, and has been the exclusive
representative of all the employees in said unit for the
purposes of collective -bargaining with respect to rates of
pay, wages , hours of employment , and other terms and
conditions of employment. There is no evidence herein at
variance with this recitation of McKeever. I find accord-
ingly.
3. Refusal to bargain
It was stipulated that Respondent , by Filbert Terrazas,
6 My ruling rejecting this exhibit is modified and the exhibit is received
r McKeever also referred to Terrazas as Ernie I find this to be the
nickname of Filbert Terrazas
8 Musgrove identified his signature on the attendance roster, for the
meeting of June 8 He also acknowledged that he was accompanied by
Stronach, a salesman of Respondent from Tucson, whose name also
appears on the attendance roster
Musgrove's denial that he made the motion to accept the contract, as
recited in the minutes, is not credited I can perceive of no reason why
Robins, secretary-treasurer of the Association, would attribute the motion
president, and the Union, on June 25, 1970, entered into
the 1968-1971 collective-bargaining agreement of the
Association.
The minutes of the Central Arizona Roofers Association,
covering a regular membership meeting held on June 9,
1970 at 7 p.m., reflect that Harry E. Musgrove, vice
president of Respondent, was present as a guest.6 The
minutes of the regular membership meeting of the
Association, held on July 14, 1970 at 7 p.m., reflect Ernie 7
Terrazas, president of Respondent, listed among the
members present. These minutes reflect that Terrazas was
one of three new members welcomed into the Association
at that meeting. I have found, supra, that the regular
membership meetings were held on the second Tuesday of
each month. I find it reasonable to infer that Respondent
joined the Association on or before June 25, when it
entered into the Association's collective-bargaining agree-
ment with the Union.
Wardle credibly related that both Terrazas and Mus-
grove were present and participated in one or two
meetings, prior to May 31, where the progress of
negotiations and the position of the Association were
discussed, and votes were taken on proposals. Mullis
corroborated this assertion of Wardle.
The association minutes of the regular meeting, held on
Tuesday, June 8, 1971, reflect, inter aha, that Wardle
reported the Union's acceptance of an association propos-
al, relative to allowance of 1/2-hour's pay, if an employee
reported to a job site from 0 to 24 miles, and 1-hour's pay,
if an employee reported to a job site between 24 and 49
miles, with the contractor having the option of having his
men report either to the job site or the shop. Wardle also
reported the payroll was to be retroactive to June 9. These
minutes also recite, "Motion was made by Harry Musgrove
(vice president of Respondent) to accept the contract as it
now reads, and seconded by Jim Graham. A vote was
taken on Acceptance of the Contract; everybody voted yes
except George Wadding."8
The Association minutes of June 8 also recite: "The
1971-72 committee selections were then read by myself."
The list of 1971-72 committee selections reflect that under
the committee for Registrar of Contractors, Ernie Terrazes
[sic ] is listed as a member.
McKeever credibly related that Terrazas signed a copy
of the Interim Agreement, which I have found, supra,
expired, by its terms, on August 31, on June 9 or 10, in the
presence of McKeever, in Terrazas' office .9
The membership list, of those in attendance at the
regular Association meeting on Tuesday, July 13, includes
the signatures of Ernie Terrazas and Harry Musgrove. The
minutes reflect what is described as a "skirmish between
Spitz and Tolley vs. Terrazos [sic] and Musgrove-peace
was finally restored."
to Musgrove, if, in fact, it was made by someone else
Musgrove's assertion that he was not a member of the Association, on
June 8, but attended as a guest , is also not credited There is not a scintilla
of evidence that Respondent ever notified the Association of its resignation
from the Association
9 Terrazas' denial that he signed any extension agreement after May 31 is
not credited While McKeever was unable to produce a signed copy, on the
basis of credibility, as further explicated infra, on this conflict, I credit
McKeever
TERRI-FLEX PRODUCTS 9
Mullis related that he had a conversation with Terrazas,
in the latter part of July or the early part of August, at the
President's Health Club in Phoenix. Mullis asserted that
Terrazas mentioned that his situation was different from
the normal roofing situation, of other signatories to the
contract, and Terrazas mentioned that he wanted to
change the composition of his crews. Mullis asserted that
Terrazas stated that he had discussed this with McKeever,
and anticipated that he would be able to work it out.10
McKeever related, and it is undisputed, that Vice
President James F. Peterson signed an Interim Agreement
on August 13 at Respondent's premises. This agreement,
by its terms, provides for the continuance of the 1968-1971
agreement, pending approval of the new industry agree-
ment by CISC. The agreement provides that, upon said
approval, the employer shall:
a. Execute a copy of said industry agreement referred
to above in this paragraph 2 or a memorandum
agreement which incorporates therein the terms and
provisions of said agreement upon request of the
Union.
b. Apply the terms of said new industry agreement
retroactively to June 1, 1971, to all work performed
during the term hereof, and accordingly pay and
contribute the difference between the wages and
benefits actually paid and contributed in the interim
and those payable under the retroactive application.
The Interim Agreement, by its terms, expired on Novem-
ber 30.11
Under date of August 13, McKeever delivered a letter, to
Respondent, outlining the terms of the 1971-1973 agree-
ment. The letter asserts the retroactive clause provides for
payment of wages and fringe benefits, retroactively,
commencing June 9. The new wage rates are listed, as are
the employer payments to the Health and Welfare Fund,
Pension Fund, Vacation Savings Fund, and Apprentice-
ship Trust Fund. McKeever related that he delivered the
letter, together with the appropriate forms, to Respondent's
bookkeeper, who was identified by Peterson.
On August 30, McKeever, by letter, advised Respondent,
inter alia:
It has been brought to the attention of this office, and
we are presently in possession of proof that your firm
has and is paying a sub-standard pay scale. This is in
direct violation of the Labor-Management Collective
Bargaining Agreement which your firm has signed with
Roofers' Local No. 135, same also having been signed
by Central Arizona Roofers Association.
Unless this condition can be corrected voluntarily it
will become necessary for this office to file unfair labor
practices against your firm with the National Labor
Relations Board, and to also picket your jobs for
breach of contract. This office will allow seven (7) days
for you to voluntarily correct this condition.
Realizing that your firm may be experiencing difficulty
in interpretation and/or administration of this Collec-
tive Bargaining Agreement, this office is ready to
confer with you in this interim time.
McKeever related that Respondent did not respond.12
In view of the Remedy requested by General Counsel,
relative to Respondent's failure to pay wage rates provided
for in the 1968-1971 and 1971-1973 Agreements, on and
after April 2, 1971, I find Respondent's payroll records, for
the year 1971, reflect the following: 58 different employees
were employed during varying periods in 1971; of these 39
were hired after April 2 at a starting rate of $2 per hour;
after April 2, the following were hired at the rate indicated,
David B. Mesa, Jr. $2.25, Richard N. Olson, $2.50,
Leonard Lister, $3, Eddie B. Villalobos, $3.18, Edward M.
Caudill, $3.18, and Cary D. Cook, $3.18; hiring rates for
those hired before 1971 are not indicated but hiring dates
and rate paid on April 2 include Juan Meraz, hired
October 12, 1970, reemployed in July, $2.50, James N.
Rinella, hired November 19, 1970, April 2d rate $2.75,
Alexander Rodriquez, hired March 26, rate $2, David A.
South, hired September 21, April 2d rate $3.62 1/2, John
R. Tavares, hired June 26, 1970, April 2d rate $3.50,
Kenneth R. Carson, hired October 6, 1970, April 2d rate
$5, Stanley E. Eide, hired March 9, 1970, April 2d rate
$4.25, Larry E. Lane, hired February 5, April 2d rate $2.25,
Gregory B. Moncayo, hired July 6, 1970, April 2d rate
$2.50, Jonathan Petlock, hired July 29, 1970, April 2d rate
$2.75, Edward M. Ordaz, hired May 25, 1970, April 2d rate
$3.50, Johnny Ruelas, hired June 30, 1970, April 2d rate
$2.50, and Barney S. Chavez, hired June 2, 1970, April 2d
rate $3.13
Richard N. Olson credibly related that, after 2 weeks of
employment, Adkinson, identified by Terrazas as a
supervisor, made him a leadman doing preparation work
on old and new construction.14 The crew was two to five
men. Adkinson dispatched Olson to a labor pool on Grant
Street, described by Olson as unemployed personnel who
were hanging around awaiting work. Olson related they
were paid $2 an hour, and were hired on a daily basis.
Olson asserted a good man was advised to come back the
following day. In late July or early August, an individual
named Yeomans, with Adkinson present, inquired if Olson
would consider being a foreman, at $4 an hour. Olson
called McKeever, who advised the contract rate for
foreman was $5.55 an hour. On Monday, August 2, Olson
dispatched two preparation crews to two different job sites.
Olson related his responsibilities, as foreman, were to get
the crews on the job, with proper equipment, go and
supervise, and also to inspect work contemplated for the
following day, to determine if it was new or old
construction. His pay check did not reflect the rate of $5.55
per hour.15 When Olson complained, Yeomans advised he
would check into it. Olson advised Yeomans the union
15 However, McKeever denied having any discussion with Terrazas
related to the particular technology used by Respondent.
11 McKeever asserted Terrazas was not present when Peterson executed
the Interim Agreement
12 The assertion of Terrazas that he was never advised of the terms of the
1971-1973 Agreement must be found to be implausible and incredible
McKeever asserted that several employees advised that some of them
were being paid $2 an hour, and others $2 50 an hour, while the minimum
scale under the contract was $3 18 per hour
to Determination of increases granted, and amounts due under the
contract is left for appropriate proceedings at the compliance stage of the
case
14 Respondent 's payroll record reflects Olson was hired on June 14
15 The pay check for August 14, one week being withheld, reflects 40
hours straight time, $212, a rate of $5 30 an hour, and 13 05 hours overtime,
$103 75, a rate of $7.95 per hour
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scale was $5.55 an hour. The following week Yeomans
advised Olson that he was being reduced to $3.18 an hour,
and would be expected to continue the duties of a foreman.
Olson quit.
McKeever credibly related that he did talk to Terrazas
about the deficiencies in late September. According to
McKeever, Terrazas responded that his bookkeeper was on
vacation, and that when she returned she would take care
of it.
Terrazas asserted that, from April 2 to October 31, he
had no journeymen in his employment. He had supervisors
supervising, and trainees applying urethane, without
journeymen.
Terrazas acknowledged that, inferentially before Novem-
ber 30, he was requested to sign an Interim Agreement
further extending those portions of the 1968-1971 agree-
ment on which modification was pending before CISC for
approval. He asserted he did not agree to the extension, but
mailed it to his lawyer. It was never executed by
Respondent.
David James Wagner is account manager for Fund
Administrative Associates, who handle the accounts for
Arizona Basic Crafts Health and Welfare Fund and
Pension Trust Fund. Wagner identified reports filed by
Respondent for the months commencing October, 1970 to
and including December, 1971, which reflect two employ-
ees, whom Terrazas identified as carpenters employed in
the first month of report, and no employees thereafter. On
September 3, by letter, Wagner advised Respondent that
while its report reflected no employees, Wagner had been
advised that Respondent did have 12 or 13 roofers working
during July. A corrected report was requested. Wagner
related he received no response.16
McKeever related the Union was never advised that
Respondent had withdrawn from the Association. No
conflicting evidence appears.
4. Suspension of Passerrelli
Anthony Charles Passerrelli was employed by Respon-
dent from July, 1969, until September, 1971. He was a
urethane applicator. His job was to spray urethane foam
on roofs and installations, further explicated, infra.
Passerrelli credibly related that on an unspecified date,
prior to September 11, he had a conversation with
McKeever, at the union office, to determine his benefits
under the union contract, and what he was obtaining by
reason of his payments of initiation fee. McKeever advised
that none of his initiation fee had been paid to the Union,
and therefore McKeever could not give him any more
answers.17
When Passerrelli reported the following morning, he was
advised by Bruce Adkinson, his supervisor, that there was
no work for him as his truck was out of order and was
being repaired. Passerrelli asserted he was surprised,
because on other occasions when vehicles were down, there
was something to do in the shop or on one of the other
trucks.
After Passerrelli returned to his home, about a half hour
later, he called Terrazas and inquired why he was not
working. Terrazas responded that he was a "rat" for going
to the Union, and that Terrazas had instructed Adkinson
to give him the day off.
Passerrelli related that the following day he went to see
Terrazas, in Terrazas' office, and advised him that he was
going to quit, because he had been given the day off solely
because he went to talk to his Union official to find out
about his benefits. Passerrelli asserted that Terrazas
advised that he didn't have to belong to the Union, that
Arizona is a right-to-work State, and if Passerrelli would
write a letter advising that he didn't want to belong to the
Union, that Terrazas would refund the money that had
been taken out of his paychecks as Union initiation fees.
Passerrelli asserted that since he was quitting and wanted
to obtain his money since it had not been paid to the
Union, he did write a letter stating he did not want to
belong to the Union, and thereafter his money was
refunded.18
B. Interference, Restraint, and Coercion
1. Union checkoff authorizations
It is undisputed that the following named employees, on
the dates indicated, signed checkoff authorizations for
deduction of an initiation fee, in the total amount of $250,
at the rate of $3 for each day worked: John R. Tavares,
Leonard Lister, Passerrelli, Richard Olson, all on July 25;
Jose L. Hernandez, Juan Meraz, on July 26; James M.
Rinella, James E. Heins, Eddie B. Villalobos, David A.
South, Barney Chavez, all on August 10; Martin R. Smartt,
August 16; Jerry Pfeifer, August 30; Charles F. Tate,
Andres Contreras, September 15; and Delfino Contreras,
September 17.
It is undisputed that, pursuant to said authorizations,
Respondent did deduct the authorized amounts, but did
not remit any of said funds to the Union.19
Respondent's counsel, during the hearing, acknowledged
that these funds were being held, by Respondent, with the
exception of those which had been refunded, where
individuals had complied with Respondent's demand that
they write a letter stating they no longer wanted to belong
to the Union, in order to obtain a refund.
I have found, supra, that Passerrelli was given a refund,
in the amount of $90, on September 18, after preparing the
required letter, pursuant to instructions from Terrazas.
John R. Tavares, who was still employed by Respondent
at the time of his testimony, and whom I have found signed
an initiation fee checkoff authorization, on July 25, as a
result of which, it was stipulated that on dates subsequent a
total of $129 was deducted for Union initiation fees, which
are still held by Respondent, credibly related that, in
October, without solicitation, Respondent's secretary,
16 I find the assertion of Terrazas that this letter never came to his 18 While Terrazas appeared as a witness, he did not dispute this
attention implausible and incredible recitation of Passerrelli
17 Passerrelli identified his payroll stubs, which reflected the deduction 19 While I find it unnecessary to recapitulate the precise amounts of
of $15 on each of the payrolls ending August 7, 14, 21, 28 and September 4 these deductions, which are reflected in the Respondent's payroll records,
and 11, a total of $90 this information is available for examination in supplementary proceedings.
TERRI-FLEX PRODUCTS 11
Rowe, inquired if he wanted his dues returned and advised
that he would have to write a letter saying that he didn't
want to be in the Union. Tavares responded that he did
want his money returned, and she advised that he would
have to write a letter. Tavares did not write such a letter.
Approximately 2 weeks later, Tavares had a conversation
with Terrazas, at a work site. Terrazas inquired what
Tavares intended to do about the money that had been
deducted as initiation fees. Tavares did not respond.
Terrazas then told him that he would have to write a letter,
saying that he did not want to be in the Union, and wanted
his money returned.
Jose Hernandez identified a checkoff authorization for
initiation fee which he had executed on July 26. It was
stipulated that $108 had been deducted from his salary for
this purpose. Hernandez quit in October. Hernandez
credibly related that, about 2 weeks after he quit, he spoke
to the secretary and asked if he would receive a return of
the money deducted for his initiation fee. The secretary, in
turn, inquired of Peterson, who advised that Terrazas was
handling that matter. Hernandez advised he would return
on the following day. He was advised, the following day,
by the secretary, that he would have to sign a letter stating
that he had resigned from the Union in order to obtain the
refund. Hernandez then signed a form, which the secretary
prepared, but asserted he never did receive the refund.20
2. Interrogation-polling of employees
Pfeifer credibly related that Respondent held employee
meetings every Monday evening. On October 25, about 7
p.m., 15 or 20 employees were in attendance. Respondent
officials present included Terrazas, Musgrove, Peterson,
and Yeomans. Initially, Terrazas instructed them on the
use of machinery and chemicals, and work duties. After 15
or 20 minutes, Terrazas said they should discuss the union
business. Terrazas then wrote some figures on the board
purporting to show that the employees were receiving equal
to or better than union wages and benefits. Terrazas then
singled out individuals.
Terrazas pointed to Leonard Lister and said, "I know
you were coerced into joining the Union, weren't you?"
Lister responded in the affirmative. Terrazas then pointed
to Barney Chavez and made the same inquiry, and
received the same response. At this time, Pfeifer stood up
and said, "I personally wasn't coerced into joining the
Union, and from having talked to some of the different
guys here, they never indicated to me that they were
coerced into joining the Union."
Pfeifer related that at this time an individual walked into
the room whom Terrazas introduced as his lawyer, whose
name does not appear in the record. A discussion, which
Pfeifer described as "unruly," ensued between the pro and
the antiunion elements. An accountant, unidentified, and
Yeomans then made some antiunion statements, asserting
the employees were doing better without a Union. At this
point, Terrazas announced that it was better for manage-
ment to leave, that he would leave the lawyer there, and
that the lawyer would ask the employees' opinions on the
Union. At this point management representatives left.
The lawyer then advised that he would go into an
anteroom, call the employees in one at a time, and
individually ask whether or not they wanted to be in the
Union. Pfeifer related that those present were then called
in, one at a time, the lawyer asked him if he wanted to be
in the Union, he responded in the affirmative, the lawyer
put a checkmark next to his name, and Pfeifer then left.
Tavares corroborated Pfeifer, relative to the events at the
meeting, and relative to the company attorney asking, in
the anteroom, if he wanted to stay in the Union or get out,
to which Tavares responded that he wanted to stay in.2i
3. Terrazas' threats
Pfeifer credibly related that, on October 29, he had a
conversation with Terrazas in the presence of the account-
ant. Pfeifer inquired if he could get the money which had
been deducted for his initiation fee, pursuant to a checkoff
authorization, or if it could be sent to the Union. Terrazas
responded that he could not receive it unless he would send
a registered letter saying he did not want to be in the
Union any more. Pfeifer responded that he did not intend
to do anything that was against his best interests, and was
certain that Terrazas would not do so. Thereupon,
Terrazas asserted: "I am not going to have any Union
punks running my shop, I'd rather close the place down.
Even if the Union does get in here, only about twenty
percent of the work that we do would have to involve the
Union, and you Union guys would be put on that, and
there would be somebody watching you, and if you messed
up, you would have had it." 22
4. Respondent's defenses
Terrazas related that he had been in the construction
industry, inferentially roofing, for 21 years, and started
applying urethane, as a roofing product, in 1968. Terrazas
described the application of polyurethane as two compo-
nent materials mixed with high pressure complicated
equipment, which do not mix until they get to the
Benjamin onfice, when they are sprayed out. They react
within 20 seconds and expand 30 times the thickness of the
volume applied. Terrazas described the product as the best
insulator known today. He asserted 1 inch of polyurethane
is equivalent to 4 inches of normal conventional-type of
insulation.
Terrazas described the devices used as high-pressure
airless equipment, where the components come out of
separate drums. They go through a complicated formulator
that proportions the material in equal volumes, which is
sprayed through a heated hose controlled by electrical
thermostats, which maintain a constant temperature, until
it is released through the sprayhead, called the gun. One
use for the material is roofing.
Terrazas asserted that when he commenced the applica-
tion of polyurethane there were no other operators of his
20 Hernandez' request for the refund is dated October 15 and recites
"Please refund amounts withheld from my wages for Union dues I do not
wish to become a member of roofer's local No 135 "
While Terrazas appeared as a witness, he did not dispute these assertions
of Tavares and Hernandez
21 Respondent produced no testimony relative to these events.
22 Respondent did not dispute this recitation of Pfeifer
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment in the area. Respondent makes most of its own
equipment.
Asked how he obtained trainees , Terrazas asserted that
initially the carpenters' union, the painters' union, the
steelworkers' union, and the roofers' union wanted
Respondent to use their respective crafts. Terrazas ac-
knowledged that his work had previously primarily been in
roofing, and he desired to remain with that Union, because
he felt that they could best suit the industry. Terrazas
acknowledged there were no trained applicators availa-
ble.23
Terrazas described a crew as comprised of from two to
four men. The first man handles the spray gun. The second
man handles the hose. The third man is a flunkey who
helps drape, helps to clean the deck when necessary, turns
the equipment on and off, and does whatever else he is
asked to do. The fourth man does essentially the same as
the third man.
Terrazas asserted Respondent had three spray trucks,
two dump trucks, and four or five pickup trucks in
Phoenix. The crews use spray trucks, and also operate
dump trucks, which Terrazas described as common labor,
such as cleaning off a roof. Terrazas asserted there were
normally three crews in Phoenix.
Respondent urges that the 1968-1971 contract, signed by
Respondent on June 25, 1970, was a nullity because the
Union did nothing for the employees, provided no benefits,
and filed no grievances. I find no merit in this contention.
Respondent urges that there is no evidence that
Respondent ever joined the employer group as a member
or participated in the negotiating activities of the Associa-
tion. On the basis of unrefuted evidence, I have found to
the contrary, supra.
Respondent, in stating its defense, asserted that Terrazas
signed the 1968-1971 agreement, on June 25, 1970, on the
representation that a jurisdictional conflict between the
painters' union and the roofers' union would be avoided.
Respondent asserted this was part of the consideration for
the contract. No reference to this condition is embodied in
the contract. Terrazas, asked what representations were
made by May, union business agent, prior to his signing on
June 25, responded, "Not any other representations, other
than that they would furnish manpower, that they would
furnish the type of personnel that would be required to do
the application of the roofing." I find no merit in the
assertion that there was a jurisdictional dispute, or that the
Union, as consideration for Respondent entering into the
contract, undertook resolution of any junsdictional dis-
pute.
23 Terrazas was self-contradictory on the quality of technicians required
At one point, Terrazas asserted, "Our material requires highly skilled
technicians In my 21 years in the construction business I used ordinarily
common laborers for doing normal roofing" Later, Terrazas asserted that
he did not need highly skilled technicians to apply his product, and in fact
had no journeymen working for him from April 2 through October 31, when
he had supervisors supervising and trainees performing the application
process
24 1 find it unnecessary to make credibility findings on the denial of May,
filed as an affidavit, after the close of the hearing, denying the existence of
any agreement, that, as a condition for Respondent entering into the
contract, the Union would supply essential personnel
McKeever, who became business agent in January, 1971, credibly related
that he inquired of Terrazas as to Terrazas' need of manpower and was
advised by Terrazas that he had no such need Terrazas did not deny this
Terrazas asserted that one of the conditions of Respon-
dent entering into the June 25, 1970 association agreement
was an undertaking by May to provide trainees, or
apprentices. Thereafter, Terrazas acknowledged there was
no provision in the agreement relative to the Union
supplying essential manpower. He asserted that this was a
verbal agreement .24 I find no merit to this contention. In so
finding, I am not unmindful of the fact this is an effort to
modify a written instrument by parol evidence.
McKeever credibly related that, in January, he talked
with Terrazas about painters doing roofing work. McKeev-
er, acknowledging that he did not know anything about the
application of urethane, advised that he would bring a
union representative from Washington. As a result, in
May, McKeever and Cooper, the Washington union
representative, met with Terrazas, to obtain the informa-
tion that might be needed in the event of a jurisdictional
dispute. McKeever asserted it was never needed. McKeev-
er related that Terrazas advised him, "If the roofers don't
wise up, the painters are going to own the roofers' local."25
Respondent, by way of defense, asserted it did not know
who bargained for the Association, but that the Associa-
tion did not bargain for it, asserting that it signed
independently and was not bound by the negotiations. I
find there is no merit in this purported defense, for reasons
explicated infra.
C. Concluding Findings
1. Suspension of Passerrelli
I have found, from the undisputed recitation of Passer-
relli, that he was suspended from work for 1 day because he
sought information and assistance from union representa-
tive, McKeever. Also uncontradicted is Passerrelli's recita-
tion that Terrazas called him a "rat" for going to the
Union, and Terrazas' advice to Passerelli that Terrazas had
instructed Adkinson to give Passerrelli a day off because
Passerrelli sought the assistance of his union representa-
tive.
Accordingly, on the basis of the undisputed evidence, I
find Respondent, in laying Passerrelli off for I day, was
discriminatorily motivated, and said conduct constituted
interference, restraint, and coercion, and was violative of
the provisions of Section 8(a)(3) and (1) of the Act.
assertion of McKeever
25 The recitation of Terrazas that the urethane industry "supposedly
does not belong to any jurisdiction of the Unions that are out today," is
neither relevant nor material
Terrazas ' assertion that he had advised McKeever, prior to June 1, that
he did not intend to be a party to any agreement resulting from the new
negotiations , is not credited
In so finding, I find credible McKeever's denial that Terrazas ever
discussed any changes in the contract , and that the only such discussion
with McKeever occurred 2 weeks before the hearing herein and was with
Musgrove I am also not unmindful, as I have found , supra, that it was
Musgrove who made the motion for the Association to accept the union
proposal, which resulted in the Association 1971-1973 Agreement In
addition, I have found, supra, that Terrazas signed an interim agreement on
June 9 , and an extension thereof was signed by Peterson on August 13
TERRI-FLEX PRODUCTS 13
2. Interference , restraint and coercion
Nonpayment of Authorized Initiation Fee
Deductions
General Counsel , in his brief , accurately urges that it is
undenied and undisputed , as alleged in the complaint in
Case 28-CA-2428, that Respondent deducted initiation
fees from the wages of various employees , pursuant to their
duly authorized checkoff authorizations, as I have found,
supra . Respondent admits that it has refused to remit these
monies to the Union, pursuant to the terms of the
collective-bargaining agreement . No explanation orj ustifi-
cation is asserted by way of defense.
General Counsel, in his brief, also correctly urges that
when various employees asked Respondent for a return of
their money, since they had learned that these deductions
had not been remitted to the Union , they were advised that
the only way they could obtain a refund was by writing a
letter, to Respondent , advising that they desired to resign
from the Union.
In the New York District Council No 9 case,26 the court
held:
We are aware that the National Labor Relations Act
does not grant the Board or the courts the power to
impose substantive contract terms upon the parties to a
collective -bargaining Agreement.27
But the Board and the courts clearly have the power
pursuant to Section 8(d) to compel the parties to a
collective-bargaining agreement to abide by the terms
of their agreement, and to amend those terms only
through the process of collective bargaining.28
The Supreme Court in the Strong case, supra, held:
Admittedly, the Board has no plenary authority to
administer and enforce collective-bargaining contracts.
Those agreements are normally enforced as agreed
upon by the parties, usually through grievance and
arbitration procedures, and ultimately by the courts.
But the business of the Board , among other things, is to
adjudicate and remedy unfair labor practices. Its
authority to do so is not "affected by any other means
of adjustment or prevention that has been or may be
established by agreement, law, or otherwise .. .
Section 10(a) . . . . Hence it has been made clear that
in some circumstances the authority of the Board and
the law of the contract are overlapping, concurrent
regimes, neither pre-empting the other . Id. P. 360.
3. Interrogation-poll
I have found, supra, that, on October 25, Terrazas
interrogated employees , in a meeting , as to whether or not
they were coerced into joining the Union. I have also
found that Respondent's lawyer, unidentified, at the
instance of Terrazas, conducted a poll of the employees as
to whether they wanted to stay in the Union or get out.
In the Blue Flash case,29 the Board found interrogation
was not unlawful where legitimate reason for inquiry
existed and appropriate safeguards were taken . The Board
held that the test is whether, under all the circumstances,
interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the
Act.
In Johnnie 's Poultry, 30 the Board further elaborated,
stating that it and the courts found two areas which
permitted legitimate interrogation , i.e., verification of a
Union's claim to majority status , and investigation of facts
concerning the issues raised in a complaint , where such
interrogation is necessary in preparing the Employer's
defense for the trial of a case . In each instance, however,
enumerated safeguards must be taken.
In the Struksnes case ,31 the Board held that absent
unusual circumstances , the polling of employees by an
Employer will be violative of Section 8(a)(1) of the Act,
unless the following safeguards are observed:
(1) The purpose of the poll is to determine the truth of a
Union's claim of a majority,
(2) This purpose is communicated to the employees,
(3) Assurances against reprisal are given,
(4) The employees are polled by secret ballot,
(5) The Employer has not engaged in unfair labor
practices or otherwise created a coercive atmosphere.32
There is no evidence herein of the existence of either of
the conditions outlined by the Board in Johnnie 's Poultry,
nor were the safeguards outlined therein , and outlined in
Struksnes , taken . It follows, and I find that the interroga-
tion and polling were, in each instance , coercive , and thus
violative of the provisions of Section 8(a)(1) of the Act.
4. Threats
I have found, supra, that Terrazas, on October 29,
advised Pfeifer that Terrazas was not going to have any
union punks running his shop, that he would rather close
the place down, that if the Union did get in, only 20
percent of the work would have to involve the Union, and
the union guys would be put on that, there would be
someone watching them, and if they messed up they would
have had it.
The Board and court cases holding that threats of
retaliation , because employees engage in activities protect-
ed under Section 7, such as threats to close the plant, to
reduce work , and to apply more stringent work rules, are
legion and require no citation.
Accordingly , I find Terrazas ' threats, as related by
Pfeifer , were coercive and constituted interference, re-
straint , and coercion within the meaning of Section 8(a)(1)
of the Act.
26 New York District Council No 9, International Brotherhood of Painters
& Allied Trades, AFL-CIO [Assn of Master Painters and Decorators of the
City of New York] v N L R B,79 LRRM 2145 (C A 2, December 27, 1971),
enfg 186 NLRB No 140
27 Citing H K Porter Co v N L R B, 397 U S 99 (1970), William J
Burns International Detective Agency, Inc v N L R B, 441 F 2d 911, 915-16,
(C A 2), cert granted, 40 U S L W 3162 (U S October 12, 1971)
28 Citing N L R B v C & C Plywood Corporation and Veneers, Inc, 385
U S 421, 428, (1967), N L R B v Strong, 393 U S 357, 360-361 (1969), et
at
29 Blue Flash Express, Inc, 109 NLRB 591
30 Johnnie 's Poultry Co, 146 NLRB 770, 775.
31 Struksnes Construction Co Inc, 165 NLRB 1062
32 Cited with approval NLRB v Super Toys, Inc, 458 F.2d 180 (C A
9)
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Failure and refusal to bargain
I have found, supra, that there is in existence, at all times
material herein, a multiemployer association, identified as
Central Arizona Roofers' Association, which has bar-
gained with the Union for a period of at least 9 or 10 years.
and has entered into collective-bargaining agreements
covering a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9(b) of the Act,
including all foremen, journeymen and apprentice roofers,
with appropriate exclusions . There is not a scintilla of
evidence that the Union did not represent a majority in the
described unit.
I have found, from the credible testimony of Wardle and
Mullis, successive association presidents, and from the
Association's minutes, that Respondent joined the Associa-
tion on approximately June 25, 1970 at which time it
entered into a collective-bargaining agreement identical to
the association agreement. Wardle and Mullis credibly
related the activities of Respondent's representatives in the
Association's consideration of proposals and counterpro-
posals, to be made to the Union during negotiations of the
1971-1973 contract, in April and May.
The association minutes of June 8 reflect that it was
Harry Musgrove, vice president of Respondent, who made
the motion at an Association meeting, "to accept the
contract as it now reads." These minutes also reflect that
those present, except Wadding, voted approval of the
motion, necessarily including Musgrove. A tentative
agreement , identified as the 1971-1973 Agreement, was
entered into, between the Association and the Union the
following day, subject, nevertheless, to approval by CISC.
On the same day, June 9, each of the association members,
Respondent included, entered into what is appropriately
termed an Interim Agreement, providing for the continu-
ance of the conditions of the 1968-1971 Agreement,
pending the essential approval of the new agreement. The
Interim Agreement, by its terms, expired on August 31. On
August 13, Respondent, by Vice President Peterson,
entered into a new Interim Agreement, extending the
1968-1971 Agreement, pending CISC approval of the
1971-1973 Agreement. The latter Interim Agreement, by
its terms , expired on November 30. Thereafter, Respon-
dent refused to enter into further extensions. It is
undisputed that the Interim Agreements provided for
retroactive application of the terms of the 1971-1973
Agreement, upon approval, to June 1. The contention of
Respondent, in its brief, that it was not bound by the
1971-1973 association agreement is without ment.33
The evidence establishes, and General Counsel urges in
his brief, that Respondent, on and after April 2, unilateral-
ly instituted changes in the terms and conditions of
employment by failing and refusing to pay the contractual
wage scales and failing to make requisite payments to
Arizona Basic Crafts Health and Welfare Fund and
Pension Trust Fund, and, thereafter, effective June 1,
repudiating the terms of the 1971-1973 Agreement, as
33 Respondent's assertion , in its brief , that it withdrew from the
Association by nonpayment of dues on June 8, in the light of its other
activity, which is undisputed , is ludicrous.
34 George E Light Boat Storage, Inc, 153 NLRB 1209, fn . I, enfd. as
mod., 373 F 2d 762 (C.A. 5), Tom Johnson, Inc, 154 NLRB 1352, enfd 378
approved, by unilaterally instituting changes in terms and
conditions of employment covered by the Agreement,
refusing to pay the contractual wage scales, failing to make
payments to the identified funds, and in addition failing to
make deductions for and remit to the Valley National
Bank payments for a Vacation Savings deduction, and
failing to make contributions for the Apprenticeship Trust
Fund. It follows, and I find, that Respondent has
repudiated both the 1968-1971 Agreement and the
subsequent 1971-1973 Agreement, and collective-bargain-
ing principles.34
The Supreme Court in Strong, supra, held:
Arbitrators and courts are still the principal sources of
contract interpretation, but the Board may proscribe
conduct which is an unfair labor practice even though
it is also a breach of contract, remediable as such by
arbitration and in the courts 35
It may also, if necessary to adjudicate an unfair labor
practice, interpret and give effect to the terms of a
collective-bargaining contract.36
Bearing more precisely on this case, the Board is
expressly invited by the Act to determine whether an
employer has refused to bargain in good faith and
thereby violated Section 8(a)(5) by resisting "the
execution of a written contract incorporating any
11agreement reached if requested by either party ... .
Section 8(d) ....37 The Board is not trespassing on
forbidden territory when it inquires whether negotia-
tions have produced a bargain which the employer has
refused to sign and honor, particularly when the
employer has refused to recognize the very existence of
the contract providing for the arbitration on which he
now insists. To this extent the collective contract is the
Board's affair, and an effective remedy for refusal to
sign is its proper business. Id. pp. 360-361.
Finally, Respondent's contention, in its brief, that the
1971-1973 association agreement had not been formalized
at the time of the hearing herein is without substance; it
was agreed upon on June 9, 1971, subject to CISC
approval, the mechanics of drafting, pursuant to the
approval do not negate the agreement. Accordingly, for
reasons stated, I find that by repudiating collective-
bargaining principles, the unilateral modification of the
terms of the 1968-1971 Agreement, commencing April 2,
failure to pay the wage rates provided therein, and a failure
to contribute to the Health and Welfare and Pension
Funds, as therein provided, its failure to enter into an
extension of the 1968-1971 Agreement, as requested, in
November, its failure to enter into the 1971-1973 Agree-
ment, its failure to pay, retroactively to June 1, the wage
rates provided therein, and its failure to pay retroactively
to the Health and Welfare, Pension, Apprenticeship, and
Vacation Savings Funds, as therein provided, Respondent
has, in each instance, engaged in unfair labor practices
which are violative of the proscriptions of Section 8(a) (5)
and (1) of the Act.
F.2d 342 (CA 9); M & M Oldsmobile, Inc, 377 F 2d 712 (CA 2).
35 Citing Smith v Evening News Association, 371 U.S 195, 197-198
(1962)
36 Citing N LR.B v C & C Plywood Corp, supra
37 Citing H J Heinz Co v N LR.B, 311 U S 514, 524-526 (1941)
TERRI-FLEX PRODUCTS 15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in Section III,
above, occurring in connection with the operations of the
Respondent described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent, upon request,
bargain collectively, in good faith, with Phoenix Roofers'
Union, Local No. 135, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Association,
AFL-CIO, as the exclusive representative of all employees
in the unit herein found to be appropriate for the purpose
of collective bargaining, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, by executing the 1971-1973 association
collective-bargaining agreement. Summit Tooling Co. and
Ace Tool Engineering Co. Inc., 195 NLRB 479.
It is further recommended that Respondent be ordered
to pay, forthwith, into the Arizona Basic Crafts Health and
Welfare Fund and Pension Trust Fund, the amounts due,
under the terms of the 1968-1971 collective-bargaining
agreement, as therein provided, for all months commenc-
ing April, 1971, and to said funds, and also to the
Apprentice Trust Fund, and to the Valley National Bank
home office, for the Vacation Savings Fund, all payments
due under the 1971-1973 collective bargaining agreement,
for all months commencing June 1, and thereafter. Each
such payment shall include interest at the rate of 6 percent
per annum, from the due date, when each payment should
have been made. Beverage-Air Company, 164 NLRB 1127;
Ogle Protection Service, Inc., 183 NLRB No. 68.
It will also be recommended that Respondent be ordered
to pay to the Union all initiation fees, which it deducted
pursuant to checkoff authorizations, and all amounts
which it should have checked off, where said authoriza-
tions were not validly revoked. Refunds to employees, as a
consequence of Respondent's solicitation of a letter of
resignation from the Union, does not constitute a valid
revocation, and such sums shall be paid by Respondent to
the Union. Each such payment shall include interest at the
rate of 6 percent per annum, from the due date when
payment should have been made. Beverage-Air Co., supra;
Ogle Protection Service, Inc., supra, Good Foods Manufac-
turing & Processing Corporation, 195 NLRB, 418.
It will also be recommended that Respondent be ordered
to pay to each employee on its payroll, and within said
unit, on and after April 2, 1971, the difference between the
hourly rate paid to said employee and the hourly rate
which should have been paid under the terms of the
1968-1971 Agreement, for the period between April 2 and
June 1, and under the 1971-1973 Agreement, for all
periods commencing June 1, 1971, and thereafter. While
those employees, who were on Respondent's payroll for
periods prior to the date of the Hearing herein, are listed
infra, this Order shall apply to all employees covered by the
collective-bargaining agreement to and until such time as
the Respondent shall comply with the terms of the
1971-1973 collective-bargaining agreement, by paying the
hourly rates therein provided, and making all payments
herein ordered. Reimbursement to employees shall include
interest at the rate of 6 percent per annum, from the date of
each payroll period when such sums were due and payable.
Beverage-Air Co., supra; Ogle Protection Service, Inc., supra.
It has been found that Respondent discriminatonly laid
off Anthony Passerrelli for I day in September, 1971. I
recommend that Respondent be ordered to make Passer-
relli whole for said loss of pay, plus interest at the rate of 6
percent per annum. Isis Plumbing & Heating Co., Inc., 136
NLRB 716.
As stated by the Board, the policy of the Act to insure
industrial peace through collective bargaining can only be
effectuated when speedy access to uncrowded Board and
court dockets is available. To discourage future frivolous
litigation, to effectuate the policies of the Act, and to serve
the public interest, the Board found it to be just and proper
to order Respondent to reimburse the Board and the
Union for their expenses incurred in the investigation,
presentation, and conduct of these cases. Tiidee Products,
Inc., 194 NLRB 1234.38
Finding that Respondent's purported defenses constitute
frivolous litigation, and as stated by the Board, to
discourage frivolous litigation, I will recommend that
Respondent be ordered to pay the following costs and
expenses incurred by the Board and the Union: Reasona-
ble counsel fees, salaries, witness fees , transcript and
record costs, printing costs, travel expenses and per diem,
and other reasonable costs and expenses.39
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking the amount of earnings
due to each employee, and the number of hours worked, to
determine the amount of payments due for each of the
specified funds.
In view of the nature of the unfair labor practices
committed, the commission of similar and other unfair
labor practices reasonably may be anticipated. I shall
therefore recommend that Respondent be ordered to cease
and desist from in any manner infringing upon rights
guaranteed to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent and the Association are employers
engaged in commerce, and in activities affecting com-
38 See also N L R B v. Ramada Inns, Inc, 79 LRRM 2927 (C A I,
March 1, 1972)
39 See also Rule 38, Federal Rules of Appellate Procedure Cf Sprague v
Ticonic National Bank, 307 U.S 161, 166, Schauffler v United Association of
Journeymen, 246 F 2d 867 (C A. 3)
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Phoenix Roofers' Union Local No. 135, United
Slate, Tile and Composition Roofers, Damp and Water-
proof Workers Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All foremen, journeymen and apprentice roofers
employed by employer-members of the Association, but
excluding all other employees, including guards, watch-
men, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, and more particularly
on and since June 25, 1970, Phoenix Roofers' Union Local
No. 135, United Slate, Tile and Composition Roofers,
Damp and Waterproof Workers Association, AFL-CIO,
has been the exclusive representative of all the employees
in the aforesaid unit, for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, within the meaning of Section 9(a) of the Act.
5. By failing and refusing, on and after April 2, 1971, to
bargain collectively with the aforesaid labor organization,
as more fully described and set forth, supra, Respondent
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a) (5) and (1) of the Act.
6. By discriminating with respect to the hire and tenure
of employment and terms and conditions of employment
of Anthony Passerrelli, by his layoff for 1 day, thereby
discouraging the free exercise of rights guaranteed by
Section 7 of the Act, Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. By engaging in the conduct set forth in the Section
entitled "Interference, Restraint and Coercion," to the
extent therein found, Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER40
On the basis of the foregoing findings of fact and
conclusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent, Terri-Flex Products,
Inc., its officers, agents, successors, and assigns, shall be
ordered to:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with Phoenix Roofers' Union Local No. 135, United
Slate, Tile and Composition Roofers, Damp and Water-
proof Workers Association, AFL-CIO as the exclusive
bargaining representative of all its employees constituting
the unit herein found to be appropriate for the purposes of
collective bargaining, with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
40 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 findings,
conclusions, recommendations, and recommended Order herein shall, as
employment, by failing and refusing to execute the agreed
upon 1971-1973 Agreement.
(b) Discouraging membership in Phoenix Roofers'
Union Local No. 135, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Association,
AFL-CIO, or any other Union, or discouraging the free
exercise of rights guaranteed by Section 7 of the Act, by
discriminating against any employee in regard to his hire
or tenure of employment, or any term or condition of
employment.
(c) Interfering with, restraining, or coercing its employees
by interrogating them relative to their union activity or
conducting a poll of its employees relative to their desires
for union representation in a manner violative of the
provisions of Section 8(a)(1) of the Act, or by threatening
said employees that, if a union is chosen as their collective-
bargaining representative, by way of retaliation, the plant
would be shut down, or that there would be less work for
union employees, or that their work would be more
carefully scrutinized and mistakes could result in dis-
charge.
(d) Failing or refusing to remit to the Umon initiation
fees or dues, deducted pursuant to valid checkoff authori-
zations which have not been rescinded.
(e) Failing and refusing to comply with the terms of the
association collective-bargaining agreement, by paying
wage rates less than therein provided, or by failing to make
payments, as provided therein, to a Health and Welfare
Fund, Pension Fund, Vacation Savings Fund, or Appren-
ticeship Trust Fund.
(f) In any other matter interfering with, restraining, or
coercing, its employees in the exercise of their right to self-
organization, to form labor organizations, to loin or assist
the above-named Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Phoenix
Roofers' Union, Local No. 135, United Slate, Tile and
Composition Roofers, Damp and Waterproof Workers
Association, AFL-CIO, as the exclusive representative of
all the employees in the aforesaid appropriate unit, by
executing a copy of the 1971-1973 Agreement.
(b) Pay into Arizona Basic Craft's Health and Welfare
Fund, Pension Trust Fund, Apprenticeship Trust Fund,
and to the Valley National Bank home office for the
Vacation Savings Fund, all payments due under the
1968-1971 Agreement and the 1971-1973 Agreement, with
interest, as provided in "The Remedy" herein.
(c) Pay to the Union all initiation fees, which have been
deducted pursuant to valid checkoff authorizations or
which should have been checked off, where said authoriza-
tions were not validly revoked, with interest, as provided in
"The Remedy," herein.
(d) Make whole Anthony Passerrelli for any loss of pay
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
TERRI-FLEX PRODUCTS
he has suffered by reason of Respondent's discrimination
against him, with interest, in accordance with the recom-
mendation set forth in "The Remedy" herein.
(e) Pay to each employee, on its payroll, and within said
unit, on and after April 2, 1971, the difference between the
rate of pay paid to said employee and the rate which
should have been paid, under the terms of the 1968-1971
association agreement, with interest, for the period be-
tween April 2 and June 1, 1971, and under the 1971-1973
Agreement, for all periods commencing June 1, 1971, and
thereafter, including, but not limited to the following
named employees, as provided in "The Remedy" herein:
Antonio Ramos Avila
Harry L. Beltz
Vern L. Breuer, Jr.
Joe R. Calvillo
Kenneth R. Carson
Edward M. Caudill
James Chambers
Barney S. Chavez
Mike G. Chavez
William Chevez
Andres Contreras
Delfino Contreras
Cary D. Cook
Charles D. Cozby
Gerald L. Cross
Lawrence J. Duplisea
Stanley E. Eide
Eddy A. Floyd
William D. Grose
Kenneth W. Harvill
Richard Lee Hays
James E. Heins
Jose L. Hernandez
Lorenzo Hernandez
Larry E. Lane
Ronnie G. Lopez
Leonard Lister
Kevin E. Maassen
Pedro D. Manriquez
Juan Meraz
David B. Mesa, Jr.
Gregory B. Moncayo
Allan Moore
Clifford J. Morley
Michael J. Morrison
Richard N. Olson
Edward M. Ordaz
Anthony Passerrelli
Jonathan Petlock
Jerry Pfeifer
Khyl Powell
Paul Rangel
James N. Rinella
Alexander Rodriguez
Johnny Ruelas
Eric D. Sanchez
Fred R . Sanchez
Javier Sanchez
Martin R. Smartt
41 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
David A. South Eddie B. Villalobos
Charles F. Tate Willie Villalobos
John R. Tavares Danny Walthers
William Troesh Henry M. Walthers
Paul J. Updike, Jr. Dean Youngstrand
17
(f) Pay to the Board and the Union the costs and
expenses incurred by each in the investigation, preparation,
presentation, and conduct of these cases before the
National Labor Relations Board, as provided in "The
Remedy" herein. Such costs to be determined at the
compliance stage of these proceedings.
(g) Post at its plant in Phoenix, Arizona, copies of the
attached notice marked "Appendix."41 Copies of said
notice, on forms to be provided by the Regional Director
for Region 28, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent and maintained by it for 60 consecutive 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 covered by
any other material.
Notify the Regional Director for Region 28, in writing,
within 20 days from the date of the receipt of this Trial
Examiner's Decision, what steps the Respondent has taken
to comply with the foregoing recommended Order. It is
further recommended that unless Respondent shall, within
20 days from the date of the receipt of this Trial
Examiner's Decision, notify said Regional Director, in
writing, it will comply with the foregoing recommended
Order,42 the National Labor Relations Board issue an
order requiring that Respondent take the action aforesaid.
42 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 28 , in writing, within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith "