Terri-Flex Products, Inc.

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 11 agreement 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 "