Weathercraft Co. Of Topeka, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1987

282 N.L.R.B. 1127 (N.L.R.B. 1987)

WEATHERCRAFT CO.
Weathercraft Company of Topeka, -Inc. and United
Union of Roofers, Waterproofers & Allied
Workers Local 20(b). Case 17-CA-12838
9 February' 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 September 1986 Administrative Law
Judge Elbert D. Gadsden issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief. The Respondent filed cross-excep-
tions and a supporting and answering brief.
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 and to adopt the recommended Order2
as modified.
We find merit to the General Counsel's excep-
tion to the judge's failure to include formal conclu-
sions of law in his decision. Accordingly, we add
the following
CONCLUSIONS OF LAW
1. The 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
meaning of Section 2(5) of the Act.
3. The Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act, by failing or re-
fusing to furnish relevant bargaining information
requested by the Union.
4. The aforesaid unfair,labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7)' of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
i In the absence of exceptions, we adopt pro forma the judge's finding
that the information requested by the Union was relevant to its represent-
ative function
2 We shall delete from the recommended Order and notice a provision
ordering the Respondent to recognize and bargain with the Union. Al-
though the Respondent has attempted to defend its refusal to provide re-
quested information by arguing that the Union had lost its majority status
at the time of the request, there is neither a complaint allegation nor evi-
dence that the Respondent generally refused to bargain with or withdrew
recognition from the Union at that time On the contrary, the refusal to
provide information took place in the context of contract negotiations be-
tween the parties.
1127
spondent, Weathercraft Company of Topeka, Inc.,
Topeka, Kansas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(a) and reletter the subse-
quent paragraphs.
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
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 refuse to furnish the ,relevant bar-
gaining information requested by United Union of
Roofers, Waterproofers & Allied Workers Local
20(b) as your collective-bargaining 'representative.
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 furnish the Union with information it
requested at a 17 July 1985 meeting and in a 20
July 1985 letter.
WEATHERCRAFT COMPANY OF
TOPEKA, INC.
Stanley D. Williams, Esq., for the General Counsel.
Richard D. Anderson,' Esq. (Entz, Anderson & Chanay), of
Kansas City, Kansas, for the Respondent.
Joseph W. Moreland, Esq., of Kansas City, Kansas, for
the Charging Party.
282 NLRB No. 157
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN , Administrative Law Judge. On
charges of unfair labor practices filed 6 January 1986 by
United Union of Roofers, Waterproofers & Allied Work-
ers Local 20(b) (the Union or the Charging Party)
against Weathercraft Company of Topeka, Inc. (the Re-
spondent) a complaint was issued on 24 April 1986, by
the Regional Director for Region 17 on behalf of the
General Counsel.
The complaint alleges in substance that Respondent
has interfered with, restrained , and coerced its employees
in the exercise of their- rights protected by Section 7 of
the Act since 17 July 1986, by failing and refusing to fur-
nish information requested by the Union, in violation of
Section 8(a)(1) of the Act; and that by failing and refus-
ing to furnish such information , Respondent is failing and
refusing to bargain collectively with the representative of
its'employees , in violation of Section 8(a)(1) and (5) of
the Act.
The Respondent filed an answer to the complaint on 7
May 1986 , denying that it has engaged in any unfair
labor practices as set forth in the complaint.
The hearing in the above matter was held before me in
Kansas City , Kansas , on 9 June 1986 . Briefs have been
received from the General Counsel and counsel for the
Respondent, respectively, which have been carefully
considered.
On the entire record in this case, including my obser-
vation of the demeanor of the witnesses , and my consid-
eration of the oral arguments and the briefs filed by re-
spective counsel , I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a State of Kansas corporation engaged
in the construction industry, as a roofing contractor
maintaining a business address at 104 West Lyman,
Topeka, Kansas.
In the course and conduct of its business operations
within the State of Kansas , Respondent purchases and
receives annually goods and services valued in excess of
$50,000 directly from sources located outside the State of
Kansas.
The complaint alleges, the answer admits, and I find
that Respondent is now , and has been at all times materi-
al, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that United Union of Roofers , Waterproofers & Allied
Workers Local 20(b) is now , and has been at all times
material , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent, a Kansas corporation , is engaged in the
construction industry as a roofing contractor , operating
from its principal place of business in Topeka, Kansas.
At all times material herein, the following named indi-
viduals occupied the positions set opposite their respec-
tive names, and have been, and are now, agents and/or
supervisors acting on behalf of Respondent within the
meaning of Section 2(13) and (11) of the Act : President
William D. Livengood and Superintendent Ken Englert.
Paragraph 5 of the complaint alleges that:
(a) The following employees of the Respondent
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act:
All journeymen, helpers and foremen engaged in
roofing work employed by Respondent in Jack-
son, Shawnee , Osage, Coffey, Lyon, Jefferson,
Wabaunsee, Pottawatomie, Riley, Geary and
Morris Counties in Kansas, but excluding all
office clerical employees , professional employees,
guards and supervisors as defined in the Act, and
all other employees.
(b) Since on or about October 5, 1981, and at all
times material herein , the Union has been the desig-
nated exclusive collective bargaining representative
of the unit and since said date the Union has been
recognized as such representative by Respondent.
Such recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which is effective by its terms for the period Febru-
ary 10, 1984 to May 31, 1984.
(c) At all times since October 5, 1981, the Union
by virtue of Section 9(a) of the Act, has been and is
the exclusive representative of employees in the unit
described above in paragraph 5(a), for the purposes
of collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
Paragraph 6 of the complaint alleges that:
(a) Since on or about July 17, 1985 and July 30,
1985 , respectively, the Union, by oral request and
written letter, has requested Respondent to furnish
the Union with certain specified information neces-
sary and relevant to the Union performing its repre-
sentative function.
In its answer, Respondent entered a general denial to
paragraph 5 of the complaint.'
I The facts set forth above are not in conflict in the record.
WEATHERCRAFT CO. 1129
B. The Union 's Motion to Quash Respondent's
Subpoena
Several days prior to commencement of this proceed-
ing, Respondent obtained and served on the Union a sub-
poena to produce record information of its membership
and names of dues -paying members . At the beginning of
this proceeding , the Union moved to quash Respondent's
subpoena because the information requested is irrelevant
to the issues in this proceeding . Respondent 's explanation
for the subpoenaed information is not explicit . However,
Respondent stated at the hearing that it needed the sub-
poenaed information to augment its argument that the
General Counsel has failed to establish that the Union
represented a majority of Respondent 's unit employees
and/or that the information was necessary to assist Re-
spondent in establishing that Respondent either has a
good-faith doubt or evidence that the Union lacks major-
ity status . In support of its argument Respondent cited
Carmichael Construction Co., 728 F.2d 1137 (8th Cir.
1984).
An examination of the Carmichael case shows that the
Board held at 1139:
When an employer and a union enter into a col-
lective bargaining agreement , an irrebuttable pre-
sumption of majority status is raised and continues
for the duration of the contract. . . . Following the
expiration of a contract , the presumption can be re-
butted if the employer can show that the union ac-
tually lacked majority support on the date in ques-
tion or that the refusal to bargain was based upon a
reasonably grounded good faith doubt of the
union 's majority support. Colson, supra, 673 F.2d at
225; National Car Rental System, Inc. v. NLRB, 594
F.2d 1203, 1205 (8th Cir. 1979); Pioneer Inn, supra,
578 F.2d at 839.
To rebut the presumption the Board said:
The employer must present clear and convincing
evidence sufficient to warrant a good faith doubt of
the union's majority. The good faith doubt must sat-
isfy an objective test, although subjective evidence
may be used to bolster the argument that such
doubt existed at the relevant time. Pioneer Inn,
supra, 578 F.2d at 839; NLRB v. Windham Commu-
nity Memorial Hospital, 577 F.2d 805, 811 (2d Cir.
1978); Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th
Cir. 1975).
According to the latter holding, evidence of a union's
membership and dues-paying members is not clear and
convincing evidence to support a good-faith doubt or
actual loss of majority status. As the Board went on to
point out in Carmichael, when the employers argued that
their doubt of the union's majority status must have been
in good faith because the union's membership ledgers
show that less than a majority of employees were union
members, at the time the employers refused to negotiate
with the Union. However, the Board further explained
that "lack of union membership alone is not enough to
establish a reasonable doubt of majority status. As we
have explained in NLRB v. North American Manufactur-
ing Co. 563 F.2d 894, 896 fn. 2 (8th Cir. 1977)], records
of actual membership are inadequate as proof of a bona
fide doubt of majority status or as evidence of a lack of
majority status." 728 F.2d at 1140.
Pursuant to the latter legal authority, I granted the
Charging Party Union's motion to quash Respondent's
subpoena for the Union's records of dues and member-
ship. Such information was not only inadequate to estab-
lish a good-faith doubt or actual loss of majority status,
but Respondent did not inform the bench of any other
evidence in its possession to support a good-faith doubt
or actual loss of majority status. Nor did the Respondent
specify that it would produce such other objective evi-
dence in its offer of proof on the record. For these rea-
sons , the authority of NLRB v. Carmichael Construction
Co., supra, as well as other reasons and authority dis-
cussed, infra, the Union's motion to quash Respondent's
subpoena for irrelevance was granted.
C. Relationship Between Respondent and the Union
Prior to the Board's Bargaining Order Against
Respondent
Respondent has had a bargaining relationship since
1981 and has negotiated, executed, and complied with
several collective-bargaining agreements with the Union,
the last of which was effective 1 June 1982 through 31
May 1983. Sometime in 1982, the Union filed an unfair
labor practice charge against Respondent. However, Re-
spondent and the Union executed an agreement 10 Feb-
ruary 1984 to settle an outstanding unfair labor practice
charge. In that settlement agreement, the parties execut-
ed a modified interim collective-bargaining agreement,
the terms of which were effective until 31 May 1984.
The interim agreement was a collective -bargaining agree-
ment between the multiemployer bargaining Association
and the Union, covering economic items with respect to
journeymen and apprentices in the multiemployer bar-
gaining unit . The interim agreement also provided that
on termination of the agreement, Respondent would not
be obligated to bargain as a member of the Association
but, rather, it would be entitled to negotiate separately
with the Union.
On 22 March 1984, pursuant to the interim agreement
between Respondent and the Union, Respondent sent let-
ters to the Union and the multiemployer bargaining As-
sociation, in which it advised as follows:
So there are no misunderstandings, Weathercraft
Co., of Topeka hereby advises each of you listed
above that it is withdrawing from the Associated
Roofing Contractors of Topeka, Kansas, and it will
not participate in the employer's bargaining unit in
upcoming labor contract negotiations. Weathercraft
Co., of Topeka, will negotiate and contract sepa-
rately with Roofers Local 20(b).
On 29 May 1984 the Union sent a letter to Respondent
that stated as follows:
I am pleased to inform you that members of Local
#20(b) voted not to open the contract for negotia-
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions as provided for in Article XXII in the agree-
ment, thus agreeing to work under the contract
without change for another year.
The undisputed facts in a prior Board case (Case 17-
CA-12328, 276 NLRB 452 between the parties show
that:
On 10 September 1984 the Respondent failed to
continue in full force and effect all the terms and
provisions of the interim agreement (to which it
became bound by the settlement agreement) and
made certain changes in the terms and conditions of
employment of the bargaining unit employees.
The parties stipulated that the Respondent's 22
March letter to the Union was an.appropriate notice
of its desire to terminate or modify the collective-
bargaining agreement within the meaning , of Section
8(d)(1). The parties further stipulated that the Re-
spondent did not send any notice to the Federal
Mediation and Conciliation Service or the Kansas
Secretary of Human Resources, a state agency
within the meaning of Section 8(d)(3). Retail Store
Employees Local 322 (Town & Country Supermar-
kets), 240 NLRB 1109 (1979).
The administrative law judge in the prior case found,
with Board approval,' that by unilaterally advising the
Union on 22- March 1984 that Respondent would with-
hold recognition and bargaining with the Association on
expiration of the interim settlement agreement 31 May
1984, and by actually failing to continue the agreement
in full force and effect as of 10 September 1984, during
the bargaining meeting , without first giving the required
8(d)(3) notice of such unilateral changes to the Federal
Mediation and Conciliation Service, or the Kansas City
secretary of human resources, Respondent failed and re-
fused to bargain with the Union, in violation of Section
8(a)(5) of the At. Respondent was ordered to bargain
with the Union on request.
The above decision was affirmed by the Board on 24
September 1985.
D. Efforts of the Parties to Negotiate a Collective-
Bargaining Agreement
Richard D. Anderson, Esq. and Stewart L. Entz, Esq.
were formerly partners in the law firm of Comery, La-
tourneau , Entz & Merriam, of Topeka, Kansas. Howev-
er, since May 1986, Anderson and Entz have been part-
ners in the law firm of Entz, Anderson & Chanay, of
Topeka, Kansas. They did not enter an appearance on
behalf of Respondent until the charge in the instant case
was filed on 6 January 1986. Prior to that time and
during the administrative proceeding in Case 17-CA-
12328, Respondent was represented by Eldon L. Ford,
Esq., of the law firm of Casgrove, Webb & 'Oman, of
Topeka, Kansas.
Subsequent to Respondent's 22 March 1984 letter ad-
vising the Union it would withdraw recognition from
and not bargain through the Association, and its actual
failure to continue in effect the interim agreement after
31 May 1984, the Respondent and the Union met on 10
September 1984. Several months later, Respondent
mailed a letter to the Union dated 13 June 1985 (G.C.
Exh. 4), in which it proposed approximately 12 modifica-
tions of the contract, which among other things included
journeymen qualifications, free riding zones, wage reduc-
tions, checkoff, hiring halls, and fringe Benefits.
in response to Respondent's 13 June, 1985, letter, Union
Attorney Dunn's letter of 8 July is as follows:
Please excuse the delay in responding to your
written offer of June 13, 1985.
While the Union is not prepared to agree to all
proposals contained within your offer, we do be-
lieve that there is room for negotiations. Thus, it is
clear that your proposals are based in large part
upon economic considerations and we believe that
we can offer some alternative suggestions, equally
effective.
Without precluding other possible areas, specifi-
cally, we are prepared to offer to exclude certain
residential work from coverage under the agree-
ment . In addition, we are prepared to agree to a
provision allowing the use of project agreements on
a job-by-job basis in order to allow Weathercraft to
better compete with opposing bidders.
Please let me know when it would be convenient
for you to meet and negotiate further.
The uncontroverted testimony of record established
that Respondent 's general superintendent, Kenneth Eng-
lert, and its legal counsel , Eldon, Ford, met with Union
Business Agent Wiederkehr and Union Attorney Dunn
at the union hall on 17 July 1985. At that time, the par-
ties discussed the Board's recent decision in Case 17-
CA-12328, which Respondent said it would appeal.
Thereafter, they discussed each of the items of,Respond-
ent's proposal outlined in its 13 June letter. Union Attor-
ney Patrick L. Dunn asked what was the reason for Re-
spondent's proposals and could Respondent prove any fi-
nancial problems. Englert said he would look into that
and get back to the Union.
Respondent said or implied that some of the journey-
men were not qualified and the Company wanted to pay
them less than those whom it deemed qualified . Business
Agent Wiederkehr asked Englert if he knew the Compa-
ny could dismiss any journeyman,who'was not qualified
and the Union would send another journeyman in his
place. Englert said he did not have any problem with
journeymen at that time.
Dunn asked Englert what was the Company's reason
for wanting the proposal of a two-tier system, which the
Union would oppose. Englert said it would get back to
the Union on that.
Wiederkehr further testified that Respondent wanted
100 miles free riding zone, as opposed to 15 miles extend-
ing outside Topeka City limits, which the parties had at
the time. The Company gave no reason for wanting a
change in this item.
The Company wanted a 40-hour week so it would not
have to pay overtime. Dunn asked why and Respondent
responded it just wanted it.
WEATHERCRAFT CO. 1131
Respondent said it no longer wanted to make author-
ized dues deductions. The Union asked why, and either
Englert or Eldon simply said the Company did not want
to make such deductions.
The parties discussed reducing wages from $14 to $12
an hour with no deductions or payment by the Company
for health and welfare to the pension and apprenticeship
funds. The Union asked Respondent if it could show that
the Company. was losing money. Respondent said it was
on a little better footing than previously when it was
having some problems. Dunn asked if he could see the
Company's books and Englert said that was up to the
owner, Bill Livengood, and he would have to get back in
touch with' the Union on that.
Dunn'asked Englert whether it was legal for the Com-
pany to pay health and welfare or apprenticeship benefits
for some employees and not pay such benefits on behalf
of other employees. Wiederkehr then gave ' Englert a
copy of the residential agreement signed by the Union,
which gave Respondent the right to hire one journey-
man, one apprentice, and three preapprentices on con-
struction of residential buildings up to four stories, with
hopes that such, an arrangement would give Respondent
some economic relief. Wiederkehr also advised Englert
that the Union had authority to, obtain approval from the
executive board, instead of taking it back to, the member-
ship. Englert said he could not sign either document, but
would take it to management and get back with the
Union.
Englert wanted to reduce the time for referring work-
men from the hiring hall from 24 to 12 hours. Dunn
asked did the Company have a problem with the Union
furnishing workmen, and Englert stated "No," Respond-
ent just wanted that time reduction.
In a letter dated 30 July 1985, the Union (Dunn) ad-
vised the Respondent (Eldon Ford) that his letter was a
followup letter'to the negotiation session held on 17 July
1985; that, on request, the Union was willing to negotiate
with Respondent for special project agreements, 'which
agreements would supersede contract language. The
letter further reiterated many of the Union's proposed
concessions as well as questions raised by the Union
during the 17 July meeting. The letter also advised Re-
spondent that it had not received answers to any of the
questions on which Englert promised to get back to the
Union. In essence, the Union's letter was a response to
the Respondent's June 13 proposals as well as to the dis-
cussions regarding those proposals held during the 17
Jtily negotiating session. The Union specifically renewed
its request that it be given an opportunity to examine the
Respondent's books for proof of economic or financial
difficulties; and that it requested it be supplied with any
formula or basis for wage calculation that the Employer
utilized in reaching the specific numbers or figures that it
proposed.
Business Agent Wiederkehr further testified without
dispute that the Union had not received any response as
to whether the Respondent considered the information
discussed in the 17 July bargaining meeting, or in the
Union's 30 July letter.
E. Respondent 's Lack ofMajority Status Argument
At the conclusion of the General Counsel's case, coun-
sel for Respondent moved to dismiss the complaint on
the ground that the General Counsel had failed to prove
majority status of the Union. The General Counsel ob-
jected, contending the Board's 24 September 1985 deci-
sion in Case 17-CA-12383 found that the evidence satis-
fied the 9(a) status of the Union. The ,General Counsel
also introduced page 6 of the transcript in the prior pro-
ceeding (Case 17-CA-12383) in which Respondent
moved to amend its denial answer, and admitted the 9(a)
representative status of the Union.
Respondent now argues that although it admitted the
Union's 9(a) status in the prior proceeding (Case 17-CA-
12383), the Union nonetheless did not enjoy a majority
status at that time; that the Board did in fact find the
Union enjoyed 9(a) status in its decision and it issued a
bargaining order against the Respondent, for which
unfair labor practice conduct is still outstanding and un-
satisfied by Respondent; that the Board's Decision and
Order pertained only to Respondent's pleadings to para-
graph 5 of the complaint in the prior case (Case 17-CA-
12383); and that the Respondent is not thereby estopped
from now presenting evidence to challenge the Union's
majority status.
In support of its position, Respondent cites Stine Scovil
Construction Co., 269 NLRB 465 (1984), in which the
Board stated:
We note that the complaint fails to establish, by
allegations or statements of fact, information neces-
sary to determine that the Respondent has violated
Section 8(a)(l) and (5) of the Act. Absent from the
complaint are allegations or statements of fact that
the Union is the lawful representative of the Com-
pany's employees under Section 9(a) of the Act; and
that the agreement between the parties is or not an
8(f) contract; that describe article 15 and its lawful-
ness under 8(e)'s proviso.
However, I do not find the above case language sup-
portive of, the Respondent's contentions. Unlike the em-
ployer in the Stine case, here, an examination of para-
graphs 4 and 5 of the complaint in Case 17-CA-12328,
and paragraphs 4 and 5 of the current complaint, both
alleged that since, 5 October 1981, and all times material
therein, the Union had been the designated exclusive col-
lective-bargaining representative of Respondent's unit
employees and such recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which was effective by its terms from the
period 10 February to 31 May 1984; and that at all times
since 5 October 1981, the Union, by virtue of Section
9(a) of the Act, has been and is the exclusive representa-
tive of employees in the unit herein for purposes of col-
lective bargaining, with respect to pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
In the first proceeding, Case 17-CA-12328, Respond-
ent amended its general denial answer and admitted para-
graphs 4 and 5, which allegations then became state-
ments of fact. In its 7 May 1986 answer herein, Respond-
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent denied paragraphs 4 and 5 of the current complaint,
after the Board had already issued its 24 September 1985
decision, in which it found on Respondent's admission
that the Union was the exclusive-collective bargaining
representative of its unit employees and ordered that, on
request, Respondent bargain with the Union.
Consequently, because neither of the complaints
against the Respondent failed to state that the Union is
and was the lawful representative of Respondent's unit
employees under Section 9(a) of the Act, the Stine case
is distinguishable from, and not applicable to, the Re-
spondent's pleadings in the prior or the current case.
Even though Respondent's current answer denies para-
graphs 4 and 5 of. the current complaint, the complaint
nevertheless alleged the 9(a) status of the Union, and the
denial does not bring the Respondent's argument within
the protection of the law enunciated in Stine Scovil Con-
struction Co., supra, because there, unlike here, absent
from the complaint were allegations or statements of fact
that the union was the lawful representative of the com-
pany's employees under Section 9(a) of the Act.
Analysis and Conclusions
Respondent's Argument Why the General Counsel
is Obligated to Establish Union Majority and
Respondent is not Estopped from Proving Good-
Faith Doubt or Lack of Majority
Respondent directs attention to paragraph 4 on pages 2
and 3 of the 10 February 1985 settlement agreement
(G.C. Exh. 8) with Local 20(b), which provides as fol-
lows:
It is agreed that on termination of this agreement,
Weathercraft shall not be obligated to bargain as a
member of the Associated Roofing Contractors of
Topeka, Kansas, but shall be entitled to negotiate a
contract separately with the Union.
Respondent argues that pursuant to the above lan-
guage, it was no longer obligated to bargain through the
Association after 31 May 1984, but thereafter free to bar-
gain with the Union separately. Consequently, it argues
that, under such circumstances, the General Counsel has
the burden of establishing the Union's majority' 9(a)
status, and Respondent is not estopped by the bargaining
order in Case 17-CA-12328 (276 NLRB 452) from prov-
ing a good-faith doubt or actual lack of majority support
for the Union, by the fact that Respondent admitted the
9(a) status of the Union and did not challenge the
Union's majority status in the prior proceeding, Case 17-
CA-12328.
Respondent further argues that the prior Board deci-
sion and bargaining order do not require recognition and
bargaining by Respondent to the extent that they fore-
close Respondent's card challenge of the Union's majori-
ty status, because the order merely directs Respondent
"[u]pon request, to negotiate and bargain with the
Union"; and that 'Respondent may defend the current
8(a)(5) refusal to furnish information to the Union by
challenging the Union's majority status.
In support of its argument , Respondent cites Mosher
Steel Co. v. NLRB, 568 F.2d 463, 440 (5th Cir. 1978), in
which the court held, pursuant to its decision in Hyman
v. Regenstein, 258 F.2d 502, 510-511 (5th Cir. 1958), that:
Collateral estoppel is applicable only if the same
parties or their privies are involved in both actions
and if it was foreseeable that the facts to be the sub-
ject of estoppel would be of importance in future
litigation.
Pursuant to Davis, Administrative Law Treatise § 18.03
(1958):
The judicial concepts of res judicata are sometimes
relaxed in the administrative process. They are only
relaxed, however, when the policies underlying res
judicata are not applicable to the administrative
process ... .
Section 18.02 provides:
Therefore, because certain administrative agencies
must be amenable to changing policies, necessities
of enforcement, collateral estoppel is not normally
applied to conclusions of law made by the agencies.
No such' policy considerations mitigate against the
application of collateral estoppel to facts previously
adjudicated.
In the context of the above-cited authority, Respond-
ent does not appear to contend that it is not the same
party to the 17-CA-12328 proceeding. However, it
seems to suggest, that by not challenging the Union's
majority in the prior proceeding because it was defend-
ing its failure to notify Federal and state agencies on the
basis of having reached an impasse in bargaining, the
issue of majority status in the current proceeding was
rendered unforeseeable.
On the contrary, the General Counsel argues that a
union, as an incumbent union, is entitled to continued
recognition as, the representative of an employer's em-
ployees until such time as it can be demonstrated either
that the union has in fact lost majority status, or that suf-
ficient objective basis exists for reasonably doubting its
continued majority status. He cites Celanese Corp. of
America, 95 NLRB 664, 672 (1951), Bartenders Assn, of
Pocatello, 213 NLRB 651 (1974); and that the assertion of
good-faith doubt or in fact lack of majority status may
be successfully asserted only in a context free of unreme-
died unfair labor practices. Coca Cola Bottling Works, 186
NLRB 1050, 1053 (1970); Ray's Liquor Store, 234 NLRB
1136, 1138 (1978); Nu-Southern Dyeing & Finishing, 179
NLRB 573 fn. 1 (1969).
Respondent cites essentially the same law in Gentzler
Tool & Dye Corp., 275 NLRB 881 (1985), in which the
Board held with respect to withdrawal of recognition of
the Union:
At the time of the withdrawal the Union was the
certified incumbent representative of the unit em-
ployees. Even after expiration of the certification
year, it enjoyed at least a rebuttable presumption of
WEATHERCRAFT CO.
continued majority stat05.2 Assuming rebuttability
of the presumption, the Respondent must still af-
firmatively establish either that the Union in fact no
longer enjoyed majority status at the time of the re-
fusal to bargain or that the refusal stemmed from a
good-faith and reasonably grounded doubt of the
Union's continued majority status based on objec-
tive considerations . Further, the asserted doubt must
be advanced in a context free of unfair labor prac-
tices.3 [Emphasis added]
Any hiatus in bargaining was the result of Respond-
ent's repeated refusals to bargain , its past unreme-
died unfair 'labor practices , and its challenge to the
decisions of `the judge and the Board in 1983. In ad-
dition , the Respondent 's unsupported assertion of
loss of majority support occurred in the context of
the unremedied 8(a)(5) violations found in the earli-
er case.
Issue
The crucial subordinate issue presented for determina-
tion is:
Whether, the Respondent is precluded from challeng-
ing the Union's majority status in defense of a refusal-to-
bargain charge, which allegedly occurred while the Re-
spondent is under a Board's bargaining order, and while
it has unremedied unfair labor practices outstanding.
In considering the above-cited law, the import of the
General Counsel's argument urges that Respondent's
now asserted reasonably grounded doubt, or in fact lack
of union majority status on 17 and 30 July 1985, was
nevertheless not advanced in a context free of unreme-
died unfair labor practices.
More specifically, the evidence of record , as well as
the Board's Decision and Order in the prior Case 17-
CA-12328 (276 NLRB 452), demonstrate, and I find, that
in its amended answer on the record, Respondent admit-
ted the Union's majority status; that Respondent did not
challenge the Union's majority status; that Respondent
was found to have violated Section 8(a)(5) of the Act by
unilaterally changing terms and conditions of employ-
ment and failing to notify Federal and state agencies;
that Respondent acknowledges in this proceeding that
the above-described unfair labor practices in the prior
case, in which it was ordered to bargain with the Union,
as of this date, have not been remedied; and that Re-
spondent's present assertion of doubt, or in fact lack of
the Union's majority status, is not available to it as a de-
fense under such circumstances. Coca Cola Bottling
Works, supra; Ray's Liquor 'Store, supra; Nu-Southern
Dyeing & Finishing, supra.
Respondent further argues that in the 10 February
1984 settlement agreement, the Union agreed that on ter-
mination of the agreement 31 May 1984, Respondent
shall not be, obligated to bargain as a' member of the As-
sociation, but rather shall bargain with the Union sepa-
rately. In this argument, Respondent appears to be con-
tending that on expiration of the interim settlement
2 Terrell Machine Co., 173 NLRB 1480 (1969), enfd 427 F 2d 1088 (4th
Cu. 1970), cert. denied 398 U S 929 (1970)
3 See Terrell, supra.
1133
agreement, 31 May 1984, the Union may not have had
continued majority support under the umbrella of units
of other members of the Association. However, if this
were in fact true, Respondent not only failed to assert
such doubt or in fact lack of majority status of the
Union, but, nevertheless, voluntarily acknowledged the
Union's majority or representative status in the 18 April
1985 proceeding in Case 17-CA-12328. Moreover, Re-
spondent continued to recognize and bargain with the
Union until 17 and 30 July 1985, when it commenced its
refusal to furnish requested information to the Union.
Respondent denied the Union's 9(a)' status in its 7 May
1986 answer to the 24 April 1986 complaint in the instant
proceeding. Respondent first asserted its doubt, or in fact
lack of majority status of the Union at the instant hearing
on 9 June 1986, when it attempted to subpoena union
records of the dues and membership to support its assert-
ed general and unspecified offer of proof of the Union's
lack of majority, while at the same time acknowledging
Respondent's prior unremedied unfair labor practices
were 'still outstanding.
Based on the foregoing uncontroverted evidence,
stated reasons, and authorities, I find that Respondent's
challenge of the Union's majority status is not available
to it. Coca Cola Bottling Works, supra; Ray's Liquor Store,
supra; and Nu-Southern Dyeing& Finishing, supra.
Additionally, analogous to the facts in the instant case
are the facts in Straus Communications, 246 NLRB 846
(1979), 625 F.2d 458 (2d Cir. 1980). There, the union was
certified the exclusive collective-bargaining representa-
tive of the employer's employees on 12 January 1978. On
28 April 1978'a complaint was issued against the employ-
er alleging violations of Section 8(a)(1) and (5) of the
Act, and a hearing was held before an administrative law
judge in late spring 1978. During the hearing the parties
entered into a non-Board settlement in which the em-
ployer agreed to take certain remedial action with re-
spect to the unfair labor practices with which it was
charged. Although the employer did not agree to bar-
gain with the union it did bargain in anticipation of
reaching a collective-bargaining agreement with the
union and the union, in' consideration of respondent's
agreement, agreed and did in fact withdraw the charges,
and the complaint was dismissed. The settlement agree-
ment was accepted by the judge.
In January 1979, the employer filed an RM petition,
and in February 1979 it filed a charge that the union was
failing and refusing to bargain in good faith, all in viola-
tion of Section 8(5) of the Act. Both actions were dis-
missed by the Regional Director.
On 29 January 1979 the union filed a charge alleging
that on 17 January 1979 the employer unlawfully with-
drew recognition of the union in violation of Section
8(a)(1) and (5) of the Act. A complaint was issued on 30
March and 11 June 1979. The employer denied its with-
drawal of recognition of the union violated the Act be
cause it said it had received a petition from the employ-
ees advising that a majority of employees no longer sup-
ported the union; that the withdrawal occurred after the
certification year expired; that the employer had not
committed any unfair labor practices during the certifica-
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion year; and that the agreement reached with the union
was not a settlement agreement.
The Board held that because the respondent agreed to
correct the unfair labor practice charges and tried to
reach a collective-bargaining agreement with the union,
in consideration of the union withdrawing the unfair
labor practice charges, the agreement was a settlement
agreement, warranting application of the Pool Foundry &
Machine Co. test (95 NLRB 34 (1951), enfd. 192 F.2d 740
(4th Cir. 1951), in which the Board held that the test is:
"whether a reasonable time has elapsed between the exe-
cution of the settlement agreement and the refusal to bar-
gain," (id. at 37) in which the parties may bargain free
from any question of the union's majority status.
The Board in Straus went on to say:
It is well settled that "a bargaining relationship
once rightfully established must be permitted to
exist and function for a reasonable period in which
it can be given a fair chance to succeed ."4 In situa-
tions such as the instant one, when the union has
been certified on the basis of a Board-conducted
election, the Board consistently had defined this
period as 1 year from the date of certification,
during which challenges to the union's majority are
precluded, and any refusal to bargain based on such
a challenge is unlawful per se.5 Where, however,
the certification year is interrupted by litigation of
8(a)(5) unfair labor practice charges, the company
"is obligated to bargain . . . for a reasonable period
of time exclusive of the period during which the
bargaining relationship was suspended by litigation
of the . . . unfair labor practices."s Once the litiga-
tion is resolved, whether by Board order or a non-
Board settlement agreement, the certification year
will be extended "to embrace that time in which the
employer has engaged in its unlawful refusal to bar-
gain."7
Findings
The evidence is uncontroverted that the parties in the
instant case entered into a settlement agreement on 10
February 1984, in which Respondent agreed to correct
pending 8(a)(1) and (5) unfair labor practice conduct, and
to try to reach a collective-bargaining agreement with
the Union, for which the Union agreed to withdraw the
unfair labor practice charges. In and after a hearing
before an administrative law judge, the settlement agree-
ment was approved by the judge on 14 June 1985, with
Board approval on 24 September 1985. It is particularly
noted that in the non-Board settlement agreement, Re-
spondent agreed that on termination of the settlement
agreement on 31 May 1984, it would not be obligated to
bargain as a member of the multiemployer bargaining
Association, but that it would be entitled to bargain with
the Union separately. Respondent did in fact meet with
the Union in early June 1985, submitted a bargaining
4 Franks Bros Co v. NLRB, 321 U S 702, 705 (1944)
S Ray Brooks v. NLRB, 348 U S 96 (1954)
6 NLRB v John S Swift Co, 302 F.2d 342, 346 (7th Cir 1962)
7 Pride Refining, 224 NLRB 1353 (1976).
proposal ' to the Union on 13 June 1985 , and met again
with the Union on 17 July 1985 in a bargaining session.
After the 17 July meeting or the Union 's 30 July
letter , however, Respondent withdrew recognition of the
Union , which was less than 1 month after the judge ap-
proved the non-Board settlement agreement and a little
more than 2 months before the Board approved the
judge's decision . Under these circumstances , I find that
Respondent has failed to give bargaining an uninterrupt-
ed and fair opportunity for bargaining to succeed , either
for 1 year : ( 1) pursuant to the bargaining history with
the Union or the non-Board settlement agreement recent-
ly approved by the judge on 14 June 1985 and affirmed
by the Board 24 September 1985 or for a reasonable time
after the settlement agreement was approved by the
judge 3 weeks earlier, or (2) by the 1-year presumption
of majority, which commenced on 31 May 1984 and ex-
pired on 31 May 1985 , but was interrupted by 8(a)(1) and
(5) unfair labor practice litigation before the Board be-
tween January and June 1985.
Because the bargaining certification between Respond-
ent and the Union was suspended at least 4 to 6 months
in 1985 by the 8(a)(1) and (5) litigation against the Re-
spondent, I find that a reasonable time had not elapsed
within which bargaining was given a fair chance to suc-
ceed . I further find that Respondent is obligated to bar-
gain with the Union for a reasonable time after 14 June
or 24 September 1985 , during which period challenges to
the Union's majority status were precluded . Straus Com-
munications, supra. This conclusion is inevitable because
the Respondent withdrew recognition while the unfair
labor practices which it agreed to remedy remained un-
remedied.
Finally, as previously indicated , Respondent argues
that it is not obligated to recognize the Union because
the Board 's Order in the prior proceeding , Case 17-CA-
12328 (276 NLRB 452), does not expressly require Re-
spondent to "recognize" the Union . It only ordered Re-
spondent, "upon request," to "negotiate and bargain"
with the Union as the duly designated collective-bargain-
ing, representative of its employees in the appropriate
unit within the meaning of Section 9(b) of the Act.
I find Respondent's argument in this ' regard a techni-
cality , without substance. It has already been well estab-
lished by the evidence that Respondent has,had succes-
sive collective -bargaining agreements with the Union.
Respondent amended its answer in the prior proceeding,
Case 17-CA- 12828, and admitted the representative
status of the Union . Thereafter, in June and July 1985,
Respondent engaged in collective -bargaining sessions
with the Union prior to the filing of the charge in the
current proceeding . The Board 's bargaining order in the
prior proceeding, Case 17-CA-12828, was issued pursu-
ant to Respondent's agreement to bargain with the Union
separately , and it is clear that implicit in the Board's
Order to "bargain with the Union ," on request , is the ob-
ligation to "recognize the Union ." In fact it would be
rather difficult to conceive the Respondent negotiating
with the Union without recognizing it as the exclusive
representative of its unit employees.
WEATHERCRAFT CO.
Respondent's Refusal to Furnish,the Requested
Information
In response to Respondent's intimation of financial dif-
ficulty during the 17 July negotiation session, the Union
requested to see Respondent's books. Respondent said it
would have to talk with the owner and get back to the
Union. In its 30 July letter to Respondent, the Union re-
iterated its request to see Respondent's books, and it not
only specified the other information it requested in the
17 July meeting and its 30 July letter, but also explained
how and why it was relevant, necessary, and useful to
the Union's performance of its representative and negoti-
ation functions on behalf of the unit employees. The rel-
evance, necessity, purpose, and use of such information
requested by the Union has been long held lawful, and
an employer's refusal to supply it unlawful. NLRB v.
Acme Industrial Co., 385 U.S. 432, 432-436 (1967), citing
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Curtiss
Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965).
It is especially noted that Respondent does not con-
tend that the information requested is not relevant or
necessary for the Union to carry on its representative
function. Instead, for 12 or more months, Respondent
has simply refused to supply the requested information,
and now states that it withdrew recognition of the Union
because it either has a good-faith doubt or in fact evi-
dence of the Union's majority status. Because the majori-
ty status of the Union is not a defense available to Re-
spondent under the circumstances found herein, I find
that Respondent's delay and failure or refusal to furnish
the requested information constitutes a failure to bargain
in good faith and comply with the Board's bargaining
order and, therefore, a failure and refusal to bargain in
good faith, in violation of Section 8(a)(1) and (5) and
Section 8(d) of the Act. NLRB v. Truitt Mfg., supra;
NLRB v. Acme Industrial Co., supra; Harowe Servo Con-
trols, 250 NLRB 958, 959 (1980).
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.
Having found that since 17 July 1985 Respondent has
failed and refused to furnish information requested by the
Union, in violation of Section 8(a)(1) of the Act and that
by failing and refusing to furnish such requested informa-
tion, Respondent has failed and refused to bargain in
good faith with the collective-bargaining representative
of its unit employees,, in violation of Section 8(a)(1) and
(5) of the Act, the recommended Order will provide that
Respondent cease and, desist from engaging in such un-
lawful conduct, and that, on request, it bargain in good
faith with the Union as the collective-bargaining repre-
sentative of its unit employees.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any like or relat-
ed manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed them by
1135
Section- 7 of the Act. NLRB R Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941)
On these-findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Weathercraft Company of Topeka,
Inc., Topeka, Kansas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Withdrawing negotiation of the Union as the col-
lective-bargaining representative of our unit employees.
(b) Failing and refusing to furnish information request-
ed by the Union as the collective-bargaining representa-
tive of its unit employees.
(c) Failing and refusing to furnish such requested in-
formation and thereby failing and refusing to bargain col-
lectively with the Union as the collective-bargaining rep-
resentative of its unit employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranted them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.'
(a) Furnish the Union with the information it request-
ed in the 17 July 1985 meeting and the Union's 30 July
1985 letter.
(b) Recognize, offer to, and, on request, bargain col-
lectively with the Union as the exclusive collective-bar-
gaining representative of the employees in the appropri-
ate unit described as follows:
All journeymen, helpers and foremen engaged in
roofing work employed, by Respondent in Jackson,
Shawnee, Osage, Coffey, Lyon, Jefferson, Wabaun-
see, Pottawatomie, Riley, Geary and Morris Coun-
ties in Kansas, but excluding all office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act,, and all other employ-
ees.
(c) Post at Respondent's business located at 104 West
Lyman, Topeka, Kansas, and at all places where notices
to employees are customarily posted the attached notice
marked "Appendix."9 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent's authorized representa-
tive, 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
8 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102-48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
9 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.