Service Roofing Co.

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