Home Roof Co., Inc.

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Home Roofing Co., Inc. and United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137. Case 31-CA-4014 June 24, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 30, 1974, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, the General Counsel filed limited exceptions' to the Administrative Law Judge's Decision. No exceptions were filed by the Respondent. 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. 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, Home Roofing Co., Inc., Santa Barbara, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In its answer to the complaint, the Respondent denied, for lack of information or belief, that its annual inflow exceeded $50,000. In finding an inflow in excess of $50,000, the Administrative Law Judge relied upon an inference from Respondent's gross revenue, and the General Counsel excepts to the Administrative Law Judge's failure to make such a finding on the basis of evidence in the record. At the hearing , Respondent amended its answer to admit an inflow in excess of $50,000. Accordingly, the Administrative Law Judge's apparent inadvertence is hereby corrected and we find, based on Respondent's amended answer to the complaint, that its annual inflow exceeds $50,000. DECISION STATEMENT OF THE CASE IRVING ROGOSiN, Administrative Law Judge: The complaint, issued November 26, 1973, alleges that since about July 1973 and continuously thereafter, Respondent I Designations herein are as follows: The General Counsel, unless otherwise stated or required by the context, his representative at the hearing ; Home Roofing Co., Inc., Respondent or the Employer; United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137, the Charging Party or the Union; the has refused to bargain with the Union as the exclusive representative of employees in an appropriate unit, and has unilaterally, and without bargaining with the Union, changed the terms and conditions of employment of all unit employees, by refusing to abide by the provisions of an existing collective-bargaining agreement concerning wage increases, contributions to the health, welfare, pension trust funds, and for other fringe benefits, thereby engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.' Respondent's answer generally admits the procedural and jurisdictional allegations of the complaint regarding its gross revenues for the fiscal year ending 1973, but denies, for lack of information or belief, the volume of inflow of goods from points outside the State of California; denies, on the same grounds, that it is an employer engaged in commerce and in a business affecting commerce; denies that it ever signed a collective-bargaining agreement, except for a 30-day interim agreement, which expired about September 27, 1972; admits the status of the Union as majority representative of the unit employees, and generally denies the remaining allegations of the com- plaint. Further answering, Respondent alleges that it has "never unilaterally refused to arbitrate or bargain with the Union and refers to and incorporates by reference that `HISTORY OF REQUESTS FOR MEETINGS FROM MAY 23, I97A, and DOCUMENTATION OF GRIEVANCES AND GRIEVANCES PROCEDURES"' filed with said answer, "and that `SUPPLEMENTAL HISTORY OF ARBITRATION PROCEDURES from August 3, 1973, to October 31, 1973."' By amendment to its answer, filed January 3, 1974, Respondent substituted "a certain one-year interim agreement which expired about August 27, 1973," for the "30-day interim agreement," referred to in its original answer. Further answering, Respondent alleges that issues relating to the term of the agreement, and other employer grievances, are the subject of arbitration pending between Respondent and the Union. Respondent further alleges that, although it has at all times agreed to be bound by the results of arbitration upon all issues, including the issue of execution of the collective-bargaining agreement, the Union has, at all times to and including January 3, 1974, unilaterally repudiated said arbitration proceedings and has refused to proceed thereunder, as shown by an exchange of corre- spondence between Respondent and the Union, annexed to the amendment to the answer and incorporated therein by reference. Pursuant to due notice, a formal hearing was held before me from January 7 to 10, 1974, both inclusive, at Santa Barbara, California. The General Counsel and Respondent were represented by counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally and to file briefs and proposed findings of fact and conclusions of law.2 The parties were granted until January 30, 1974, to file briefs and proposed findings of fact and conclusions of . National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151, et. seq. ), the Act; the National Labor Relations Board, the Board. The charge was filed and served on October 3, 1973. Unless otherwise indicated, all events occurred in 1973. 2 Both counsel reserved oral argument for the conclusion of the 211 NLRB No. 137 HOME ROOFING CO., INC. law. Briefs were timely filed by the General Counsel and Respondent, but no proposed findings of fact or conclu- sions of law have been filed by any of the parties. Upon the entire record in the case and based upon the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges that Respondent, a California corporation, with its principal place of business in Santa Barbara, California, is engaged as a roofing contractor in the building and construction industry. The complaint also alleges that Pacific Co., Inc., therein called Pacific, a California corporation, with its principal place of business in Santa Barbara, California, is engaged in the sale at wholesale of industrial tools and equipment. The complaint further alleges that the businesses of Respondent and Pacific have common ownership, are located at the same place of business, with the labor relations policies of both businesses being formulated and carried out by the same individuals, and that Respondent and Pacific constitute a single employer for purposes of the Act. Respondent's answer, apart from denying that Pacific is a corporation, tacitly admits the remaining allegations of this paragraph of the complaint. The complaint further alleges that Respondent and Pacific, as a single employer, annually derive gross revenues in excess of $400,000, and, as such single employer, receive annually goods valued in excess of $50,000 directly from suppliers located outside the State of California or from suppliers within the State of California receiving such goods in substantially the same form directly from suppliers outside the State of California. The complaint further alleges that, at all times material herein, Respondent and Pacific have together constituted an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.3 Respondent's answer admits that in the last fiscal year ending April 1, 1973, both companies derived gross revenues exceeding $400,000 but denies, for lack of information or belief, that it received goods valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent denies, upon informa- tion and belief, that the companies constitute an employer engaged in commerce and in a business affecting com- merce within the meaning of the Act. Respondent offered no evidence, however, to dispute the allegations concerning its direct or indirect inflow of goods or services and, on the basis of Respondent's volume of business it is reasonable to infer that Respondent's annual inflow amounted to at least $50,000. On the basis of the foregoing, and upon the entire record, including the limited admissions in Respondent's answer, it companion cases of Capitol Roof & Supply, Company, Inc., 3l-CA-4003 and -3878, involving many of the same issues, heard immediately following the conclusion of the instant case. 3 No evidence was offered to show that Pacific was otherwise directly 911 is hereby found that, at all times material herein, Respondent has been an employer within the meaning of Section 2(2), engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Slate, Tile and Composition Roofers, Damp and Waterproof Worker's Association, Local Union No. 137, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent executed a collective-bargain- ing agreement with the Union on or about November 2, 1972, effective from August 27, 1972, to August 27, 1974, or subsequently became a party to or bound by said agreement. 2. Whether, since about July 1973, Respondent has refused to bargain with the Union as exclusive representa- tive of the employees in an appropriate unit by: (a) Refusing to abide by the terms and provisions of said collective-bargaining agreement concerning wage increas- es, contributions to the health , welfare, pension trust funds, and for other fringe benefits; and (b) Unilaterally, without notice to or negotiations with the Union, changing the terms and conditions of employ- ment of all unit employees by refusing to grant or discontinuing retroactive wage increases and such fringe benefits during said period. 3. Whether this is a proper case for the application of the Board's policy of deferral to arbitration. B. Preface Prior to 1972, various roofing contractors, including Respondent, doing business in Santa Barbara and San Luis Obispo counties, California, entered into a collective- bargaining agreement with the Union, effective from August 27, 1968, to August 26, 1972. With the approach of the expiration date of the contract, the Union sought to negotiate a new contract. When negotiations proved fruitless, the Union engaged in a strike against the contractors. As a consequence, a number of contractors signed interim agreements with the Union, expiring in 30 days or upon the execution of a new collective-bargaining agreement. Respondent, however, entered into such an interim agreement for a term of one year, to expire "at midnight August 27, 1973, or upon the date of an agreement reached between this Local Union #137 and the Roofing Contractors of Santa Barbara and San Luis Obispo counties and other Bituminous, Damp and Water- proof Enameling Contractors." 4 The agreement provided: involved in this labor dispute. A Roger Hall, Respondent's president, was under the impression that, like the other contractors, he had only signed a 30-day interim agreement and apparently so informed his attorney, as appears from Respondent's (Continued) 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Parties signatory hereto agree that they will automatically become bound to the terms and condi- tions of said agreement, if and when said agreement is consummated between Local # 137 and the Roofing Contractors of Santa Barbara and San Luis Opisbo counties and other Bituminous, Damp and Waterproof Enameling Contractors, hereinafter referred to as the Employer. The interim agreement further provided: It is agreed by both parties signatory hereto that all conditions existing in the Master Labor Agreement, known as that agreement entered into between Local # 137, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association and the Roofing Contractors of Santa Barbara and San Luis Obispo counties for the period 1972 through 1973 shall continue to remain in full force and effect except for those changes, amendments, or additions to that agree (sic) as specifically identified and spelled out hereinaft- er. (All changes, amendments, or additions hereafter which are identified, by Article and Section shall be recognized as those Articles and Sections as existing within the past agreement 1972 - 1973). The agreement concluded: Upon the date of [deleted] agreement reached between this Roofers Local Union # 137 and the Roofing Contractors of Santa Barbara and San Luis Obispo counties [and] other Bituminous, Damp and Water- proof Enameling Contractors, the parties hereto agree to retroactive pay for hours worked on and after approval from C.I.S.C. for raises due Aug. 27, 1971, & Feb. 27, 1972, payable ten (10) days after approval from the Construction Industry Stabilization Commit- tee or any other Federal Boards. Joe Guerrero, business agent, represented the Union in these negotiations.5 Members of the Union employed by other contractors who did not enter into interim agree- ments were, nevertheless, permitted to return to work under an informal arrangement between the Union and those contractors. The copy of the interim agreement introduced in evidence bears no date, though it is evident from Guerrero's testimony that it was probably signed by Respondent early in September 1972, probably September 5 or 6.6 C. The New Master Labor Agreement; Subsequent Events Soon afterward, Guerrero met with William Alan Kyle, original answer. When shown a copy of Respondent's interim agreement by a Board agent during the pretrial investigation , Hall realized he had signed a 1-year agreement. It was not until after counsel for the General Counsel supplied Respondent's counsel with a copy of the 1-year interim agreement that Respondent amended its answer accordingly. Until about April 1973, Guerrero, a journeyman roofer, acted only as a part-time business agent . The previous master labor agreement, covering the period August 27, 1%8, to August 26, 1972, had been negotiated on behalf of the Union by Richard Botelho, then business agent , who, at the time of the hearing, was the owner of Nobility Roofing, and a member of the Jr., the owner of Kyle Roofing Co., Inc., to negotiate a new master labor agreement.? After reaching an accord with Kyle, Guerrero had the contract retyped, and met with Kyle in Santa Ynez, where Kyle became the first roofing contractor to sign the master labor agreement. The date appearing opposite the signature of Kyle Roofing Co., Inc., is November 1, 1972. The signatures of a total of 11 contractors, including Respondent, appear on a single page, bearing various dates0between November 1 and November 15, all but the first date designated in numerals. The date opposite the signature of Respondent, "Home Roofing Co., Inc., Roger W. Hall," the fourth signature on the page, appears as "11/2/72." The signature of Business Agent Guerrero on behalf of Local # 137 bears no date.8 Despite the appearance of Respondent's signature on the purported signature page of the master labor agreement, Respondent denies that it signed the master labor agreement or that it intended to be bound by it. Although Respondent does not dispute the genuineness of its signature, it contends that it signed a detached signature page at Guerrero's request for the sole purpose of acknowledging receipt of a copy of the master labor agreement. According to Hall, Respondent's president, Guerrero, left two copies of the master labor agreement with him and because he did not have sufficient copies for all the contractors, and wished to keep a record of those who had been supplied with copies, requested Hall to sign the separate signature page as evidence of receipt of a copy of the contract. That, Hall testified, was his only reason for signing the detached signature or "receipt" page. The master labor agreement introduced in evidence by the General Counsel, consists of 34 consecutively num- bered pages. The page immediately following, variously referred to as the signature or "receipt" page, is numbered 39. This, according to Respondent, demonstrates that the signature page was not physically attached to the agree- ment at the time it was signed by Respondent. Guerrero explained, however, that when the agreement was retyped, after he had agreed with Kyle to certain modifications, pages 35 to 38, inclusive, in the original draft were eliminated and, through inadvertence, the original page 39 was not renumbered. The signature page of this version of the master labor agreement does, indeed, contain the statement at the bottom: "Contractor signatory acknowledges receipt of copy of Collective Bargaining Agreement effective August 27, 1972." It should be noted, however, that the copies of this agreement, consisting of 34 pages, with an individual signature page attached, left with Hall by Guerrero, contain the identical language at the bottom of that signature page. That page, which also provided a form identifying the particular contractor and holder of contrac- Association, later organized. 6 According to Guerrero's testimony, a similar agreement was signed by Bill Adams, on behalf of Capitol Roofing & Supply Company, Inc., and Robert Whitcomb, on behalf of H & H Roofing, the following day. r According to Guerrero, although Kyle was not necessarily spokesman for the roofing contractors, he approached him first because the contractors usually followed Kyle's lead in negotiations with the Union. 8 The record indicates that the dates appearing opposite the signatures of the contractors were, for the most part, inserted by Guerrero on the dates shown, or soon afterward, to reflect the approximate date of signature. HOME ROOFING CO., INC. 913 tor's license, as well as a place for the Union's signature, contained .the same receipt, yet it is obvious that the receipt was only incidental to the primary purpose of the signature page. The signature page of the copies of the master labor agreement produced by Respondent was not signed, nor was the form completed by Respondent on either copy, though one copy bears Guerrero's signature on behalf of the Union, dated November 7, 1972. For his part, Guerrero acknowledged that he left two copies of the contract with Hall several days before November 2, 1972 , and told him that he would return for them in a few days . On November 2, Guerrero returned and told Hall that he had come for the contract . Hall said that he had not yet read the contract . When Guerrero told Hall that he needed his signature so that he could submit the contract to the C.I.S.C. (Construction Industry Stabili- zation Committee) in Washington, Hall, according to Guerrero, acquiesced, and signed the contract. Guerrero then took the signed contract with him, and left Hall with a copy. According to Guerrero , the multisignature page was physically attached to the master labor agreement when Hall signed it, and no reference was made to the receipt at the bottom of the page. Hall, on the other hand , denied that the signature page was physically attached to the master labor agreement when he signed it, but, on the contrary, insists that, at Guerrero's request, he signed a single, detached page for the sole purpose of acknowledging receipt of a copy of the agreement . Contrary to Respondent's contention that the "receipt" page contains no indication that it was intended to serve as execution of the master labor agreement, the designation at the top of the page identifies it as "ARTICLE XXIII . Signiture of Parties Affixed," followed by the usual in testimonium clause. Although admittedly erroneously numbered, it appears to follow in sequence the substantive provisions of the contract and the consecutive- ly numbered articles, and it is evident that the signature page constituted an integral part of the contract . That in a few isolated instances Guerrero may also have secured the signatures of contractors to separate contracts at later dates does not require a different result. The majority of the contractors, all of whom signed the multisignature page, did not sign individual contracts . The procedure used by Guerrero in obtaining execution of the master labor agreement by the contractors on a multisignature page was substantially the same as that utilized by his predecessor, Bothelo, acquiesced in by the contractors in the execution of the previous master labor agreement. Various contractors, whose signatures appear on the multisignature page (referred to by Respondent as the "receipt" page), testified that they, too, signed a detached page, after being told by Guerrero that he needed their signatures to establish that they had received a copy of the contract, and that that was the sole reason they signed. These contractors were obviously interested parties, in a position to benefit from the outcome of this controversy. Most, including Respondent, had been parties to the 1968- 72 master labor agreement, had signed interim agreements, and were evidently knowledgeable in contract negotiations in the industry. They were aware that the Union intended to submit the contract to the C.I.S.C. for approval, and it is apparent that they acquiesced in Guerrero's efforts to expedite such approval by permitting him to submit a single contract containing the signatures of all the contractors instead of individual contracts for each employer. Moreover, Respondent's subsequent course of conduct and that of the Association, of which it became a member, suggests, as will later become apparent , that the defense, that the contractors had merely signed the signature page to acknowledge receipt of a copy, and not with the intention of executing or being bound by the contract, was resorted to as an afterthought in furtherance of the contractors' efforts to repudiate and renegotiate the contract. It is significant that this defense was raised for the first time in June 1973 , some 10 months after the effective date of the contract, and 2 months after C .I.S.C. approval, after the contractors had retained counsel and formed their Association. Although the preponderance of the probative evidence, together with the circumstances surrounding the negotia- tion of the contract and its eventual submission for approval to the governmental agency, supports a finding that Respondent did, in fact, execute or intend to be bound by the master labor agreement, it is unnecessary to resolve that issue. The undisputed facts establish that, after Guerrero obtained written approval of the wage and fringe benefit increases and notified Respondent and the other contractors, Respondent began paying its employees the retroactive wage increase and making the required contrib- utions to the trust fund. Respondent's contention that, in making these payments, it was merely abiding by the terms of the interim agreement , is not supported by the record. It will be recalled that Hall had been under the impression that, like other contractors, he had merely signed a 30-day interim agreement, which expired by its terms at the end of that period or upon the execution of a new master labor agreement. Not until Hall was informed by a Board agent, during the pretrial investigation , did he realize that he had, in fact, signed a 1-year interim agreement, expiring August 27, 1973 (or upon execution of a new agreement). It is, therefore, apparent that Respondent was not aware, when it put into effect the retroactive wage increases, that these increases may have been required under its interim agreement. Respondent's attempted reliance on this interim agreement as a basis for granting the increases can only be regarded as an afterthought contrived to bolster its position that it was not acting pursuant to the master labor agreement. Clearly, the C.I.S.C. did not act on the basis of anything but the August 27, 1972, agreement , as shown by its official approval. It is, therefore, found that, regardless of whether it signed the multisignature page of the master labor agreement with the intention of executing the contract or being bound thereby, or did so solely for the purpose of acknowledging receipt of a copy of the contract , by its subsequent conduct, particularly in complying initially with the retroactive wage and fringe benefit increases, Respondent affirmed and ratified the master labor agreement and became bound by its terms. Guerrero submitted the master labor agreement, contain- ing the provisions for wage increases and fringe benefits retroactive to August 27, 1972, to the C .I.S.C. On April 9, 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1973, that agency issued its formal approval of the "economic adjustments" of 54 1/2 cents to $8.325, to take effect August 27, 1972. (Proposed economic adjustments, involving changes in mileage and subsistence allowances, hazard pay premium increase and roll roofing premium were returned without approval .) The C.I.S.C. retained jurisdiction with regard to scheduled increase of 58 cents on August 27, 1973.9 On receipt of approval from the C.I.S.C., Guerrero distributed copies to the contractors , and they proceeded to pay the new wage scale for journeymen and apprentices. Some of the contractors, however, though not Respondent, refused to pay the wage increase retroactively to August 27, 1972. Early in May, a group of contractors met with Guerrero at Kyle's place of business in Santa Maria in an attempt to clarify the situation concerning the allocation of the wage increase, as well as the status of foremen and apprentices under the wage increase. Guerrero was accompanied by Richard Visueta and Jess Chavez, union members. Kyle, Adams, De LaTorre and Botelho were the contractors attending. After some discussion, Kyle told Guerrero that the contractors would like to caucus briefly and excused themselves. When the meeting was resumed , Kyle told Guerrero that the contractors had been unable to settle anything and that he would communicate with the Union. By letter, dated May 23, 1973, hand-delivered by Botelho, Attorney Charles A. Kent notified Guerrero that he represented the Association ,10 requested a joint meeting with the Union, and demanded certain changes in the "contract of all association members" in specified respects. Referring to the collective-bargaining agreements "alleged- ly" executed with the association contractors, Kent's letter protested that the Union had violated the "Favored Nations Clause," also referred to in the record as the "Fair Nations Clause," contained in the Agreement,tt by permitting two contractors (County Roof Service and Kyle Company, of San Luis Obispo) to commence the wage increase on April 26, 1973, instead of August 27, 1972, the retroactive date. The letter also took the Union to task for threatening proceedings before the Labor Commission [of the State of California ] to enforce payment of the retroactive wage increases and for engaging in an "unauthorized" strike,12 in violation of the no-strike provisions of the contract, to compel payment of said sums . Kent also alluded to alleged violations of the collective-bargaining agreement, to be discussed at the proposed meeting, with a demand for production of all original contracts with members of the Association. Asserting other union violations by disregard- ing the grievance procedure and hiring hall practices, as well as other unspecified matters, the letter stated that all these matters should be renegotiated in the proposed meeting. It should be noted that, apart from referring to collective-bargaining agreements "allegedly" executed, the letter did not expressly deny execution of the agreements 6 On May 29, 1973, the C.I.S.C. issued a further order approving an economic adjustment of 58 cents to $8.905, effective August 27, 1973. 1O The Association was not formally organized until July 6. ^1 "Article VIII, Conflicting Agreements, B. No Contractors signatory by the contractors. Nor was there any intimation that the contractors had merely signed an acknowledgement of receipt of a copy of the contract. On the contrary, the letter protested the Union's alleged discriminatory application of the favored nations clause and other violations of the very agreement the contractors were challenging. On May 24, Eugene Miller of the Union's firm of attorneys, responded to Kent's letter. Rejecting the contractors' charges, Miller notified Kent that his clients and all other employers signatory to the collective-bargain- ing agreement would be held to the retroactive wage increases. Regarding the recent strike, Miller directed attention to the provision of the master labor agreement, granting the Union the right to strike or picket in the event of nonpayment of wages or fringe benefits and asserted that the 1-day work stoppage, in furtherance of that demand, was specifically permitted by the collective- bargaining agreement. The letter concluded that the Union would resort to whatever legal action was necessary to compel payment of wages and fringe benefits retroactive to August 27, 1972. On June 19, in a 4-page, single-spaced letter, Kent replied, explicitly asserting for the first time, that certain of the contractors had never signed a collective-bargaining agreement, but had merely signed a separate "receipt page," acknowledging receipt of a copy of the proposed contract, "even though they had no immediate objection to the pay increases and other benefits and were willing to start paying them without a signed agreement." Contend- ing that there were other discrepancies in the collective- bargaining agreement itself, as well as in the submissions to the C.I.S.C., and that there were other problems to be solved in addition to those raised in his letter of May 23, Kent proposed that the entire agreement be renegotiated. Kent added that if attempts to resolve these problems by negotiations were unsuccessful, he was authorized to file an action in the superior court for a declaratory judgment to establish that there were no collective-bargaining agree- ments in existence as to some contractors, and to set aside and rescind any contracts which may have been in effect as to others. Contending that Guerrero had sent a corrected submission for approval to the C.I.S.C., which contained erroneous wage information without the concurrence of the contractors, Kent asserted that the "entire matter" should be renegotiated and resubmitted to that agency. He further contended that wage rate schedules submitted by Guerrero to the employers were inconsistent with the action taken by the C.I.S.C. and that, although some employers had been paying wage rates in accordance with Guerrero's schedules, others had declined to do so on the ground that the wage rates that they had been paying were in excess of those approved by the agency and that this might subject them to possible penalties. Kent renewed claims made earlier and further asserted that, since some contractors had not signed the collective-bargaining agreement, their contributions to the Health and Welfare Fund might have been illegal and that disbursements of hereto shall be required to pay higher wages or be subject to less favorable working rules than those applicable to other Contractors employing members of the Union performing similar work in the same jurisdiction." 12 Presumably the I-day strike in May. HOME ROOFING CO., INC. benefits under those trust funds should be suspended until the issue was resolved. As an additional ground for recision, Kent alleged that Guerrero had failed to submit proposals for a new agreement 60 days prior to August 27, 1972, the expiration date of the previous contract. The letter concluded with a request for a joint meeting. On June 22, the Union went on strike against three roofing contractors, Capitol, Nobility, and Louis. By the first week of July, the strike had spread to other Santa Barbara County contractors, including Respondent. On June 25, Kent wrote Miller protesting the selective strike against the three contractors as discriminatory and illegal because of the Union's failure to utilize the grievance procedures. Advancing that as an additional ground for rescinding the contract, Kent demanded that the Union cease the strike against these contractors and threatened legal action. Miller replied on June 27, rejecting the claim that the Union's action justified recision, but said there would be no objection to a meeting to attempt to resolve any controversy. Any arguable violations of the contract, Miller stated, should be handled under the grievance and arbitration procedure and, if there were any errors in the submission to the C.I.S.C., Kent was at liberty to take steps to correct them.13 Miller reiterated the Union's position, that failure to pay retroactive increases constituted breach of the collective-bargaining agreement, affording the Union the absolute right to strike or picket, in furtherance of this objective, against any one or more of the employers in its discretion. On July 6, 1973, the eight roofing contractors, including Respondent, formally organized the Roofing Contractors' Association of Santa Barbara and San Luis Obispo Counties, California, for the purpose, among others, of dealing with the Union. The same day Kent wrote Miller, requesting that Guerrero attend a meeting on July 11, at the offices of Capitol Roofing, at which the contractors would submit an offer of settlement, in an effort to resolve the entire controversy. At this meeting, a written, 3-page settlement offer, signed by seven of the eight contractors, including Respondent, was submitted to Guerrero as a basis for terminating the strike. Under the proposed settlement, the contractors offered, among other things, to sign new collective-bar- gaining agreements , effective until August 27, 1974; to pay all wage increases already approved and to be approved by the Wage Stabilization Committee, retroactive to March 23, 1973, and to waive any claims for reimbursement of contributions "illegally" paid to the Roofers' Trust Fund since August 27, 1972, which contributions would be retained by the trust fund for the benefit of the employees. Striking employees would be permitted to return to work upon approval of the offer by the union membership. Within 15 days after acceptance of the offer, a meeting would be held to negotiate a contract embodying all other terms of the collective-bargaining agreement, dated August 27, 1972, not inconsistent with the terms of the proposed settlement. Guerrero was asked to submit the offer to the 13 In fact, Kent had written to the C.I.S.C. on June 20, referring to his telephone conversation with a staff member on May 17, asking clarification of whether agency approval of the initial submission included foremen. On 915 union membership and, without expressing any opinion regarding the offer, agreed to do so. The record does indicate whether the settlement offer was, in fact, present- ed to the union membership, but obviously it was not accepted. Next day, July 12, Kent, on behalf of the Association, addressed a letter to the Joint Grievance Committee of the Labor Relations Board, under the contract, requesting a meeting at the Building Trades Center, Santa Barbara, on Wednesday, July 18, 1973, at 2 p.m., to discuss and resolve grievances of all members of the Association. The letter listed 36 employer grievances, to be placed on the agenda, including the issue of whether five member contractors, including Respondent, had signed collective-bargaining agreements ; alleged variances between the wage scales approved by the Wage Stabilization Committee and those supplied to the employers by Guerrero; the issue of the "favored nations clause;" and a host of other grievances, many directed at Guerrero, as business agent . "Anticipat- ing" a deadlock as to all or some of the grievances, as well as in the "Joint Labor Relations Board," Kent requested the appointment at the scheduled meeting of a three-man arbitration committee, pursuant to the grievance and arbitration procedures of the collective-bargaining agree- ment. On July 13, Kyle, a management member of the Joint Labor Relations Board, notified the union members of that board two additional grievances to be considered at the meeting scheduled for July 18. The first charged that the Union had not called a strike against roofing contractors in San Luis Obispo and north county, who had also failed to pay retroactive wages and that those contractors were, therefore, receiving more favored treatment; and the second, that all collective-bargaining agreements in effect should be rescinded and renegotiated because of the Union's failure to abide by any of the terms applicable to the Union. At the July 18 meeting, the grievances were discussed, some were eliminated and those not otherwise resolved were reserved for arbitration. On July 24, Guerrero wrote the Joint Labor Relations Board, requesting a meeting on July 26 to discuss and resolve the Union's grievance against the contractors signatory to the collective-bargaining agreement, effective August 27, 1972, for failing and refusing to pay retroactive wages and fringe benefit contributions, as provided for in the agreement. The following day, Attorney Kent acknowl- edged receipt of the grievance, waived the 10-day notice requirement and stated that the Union's grievance would be taken up at the meeting, if submitted in writing, in advance. In his letter, Kent submitted six additional grievances, charging that the Union had failed to comply with the collective-bargaining agreement in numerous specified respects, and had filed unfair labor practice charges of refusal to bargain against employer-members of the Association while grievance and arbitration proceed- ings were pending. Reviewing the grievance and arbitration procedures, "pursuant to article VIII of the collective-bargaining July 23, following a supplemental submission by the Union , the agency issued approval of the "[e]ntire agreement, including corrected foreman premium." 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement," Kent called upon the Union to appoint an arbitrator so that the two appointees could select a third, and the prescribed procedures be followed to ensure selection of arbitrators. Finally, however, Kent wrote, the members of the Association had unanimously agreed at its last meeting that "any determination upon the issue of whether or not certain specific contractors have properly executed collec- tive bargaining agreements with the Union is a legal issue which is not properly included under the above arbitration because it is not a grievance `under the terms of the Collective Bargaining Agreement'. That issue relates only to certain specific contractors and should be properly resolved in a different forum. Thus, those two grievances relating to that issue dated July 12th are hereby abandoned by the employers." At the July 26 meeting, the Union presented its grievance regarding the contractors' failure and refusal to pay retroactive wages and fringe benefit contributions. The six additional grievances, contained in Kent's letter of July 25, and the Union's grievance were discussed. Two relatively minor employer grievances were resolved by the Union's agreement to comply ; another was tabled ; and the remaining three of these employer grievances, according to the minutes of the meeting, were to be submitted to arbitration. The Union's grievance was not sustained, for want of a second to Guerrero's motion for compliance by all signatory contractors and was to be submitted to arbitration. None of the previous 38 grievances contained in the Association's letters of July 12 and 13 were discussed at this meeting. On August 6, 1973, Kent, on behalf of the Association, served the Union with a demand to renegotiate "terms of the agreement for its second year starting August 27, 1973," renewing its previous written demands on May 23 and July 11 , and similar requests made orally at meetings between members of the Association and the Union. In his letter, Kent stated that if the request was denied, the members of the Association, who were signatories to the agreement, would deem the second year of the agreement cancelled and rescinded upon the mailing of separate notices of rescision by them. Acknowledging that under the reopening provisions of the contract, only subjects other than wage rates or fringe benefit contributions might be negotiated, the Association sought to reopen the agreement as to the permissible matters, and requested a meeting. On August 15, the union attorneys rejected the Associa- tion's demand as not required under the reopening provision, but expressed willingness to negotiate any grievances claimed by the Association to exist under the agreement. The union attorneys cautioned against any attempt to rescind the contract, charging that such action would constitute a violation of the Act. Asserting that the Union did not recognize the "multi-employer group" or the Association, which had not even been in existence when the contract was executed , the union attorneys stated that the Union was not averse to negotiating an understanding granting recognition to any association. The letter conclud- ed with a request for payment of all sums due from delinquent , contractors, and "forbearance" by each of the contractors from "arrogating the non-existence of the collective-bargaining agreement." On October 5, the union attorneys in apparent response to Kent's letter of the previous day, stated that the Union would only deal with the contractors as individuals "until they are willing to sit down in good faith and deal realistically with the problems at hand," but asserted that the nonpayment of retroactive wage increases and fringe benefit contributions remained the crucial problem. Crit- icizing the Employers' grievances as "red herrings," raised to avoid "the basic issue," the union attorneys asserted their intention of proceeding to arbitration on the wage and fringe benefit issues , with other issues to be dealt with as they arose. Mention was also made that the Union had received no confirmation from Respondent (or Capitol) that they recognized the agreement , but that if Kent would submit written evidence of his authorization to negotiate and resolve grievances on behalf of the contractors, the parties could proceed to resolve the "log jam." The letter concluded that the Union had submitted lists of arbitrators obtained from the Federal Mediation and Conciliation Service to several of the contractors, with a view to arbitrating the issue of wages and fringe benefits as the first issue in the dispute, upon resolution of which the Union would be willing to proceed with other grievances. Between August 3 and October 31 , 1973, as reflected in the voluminous correspondence between counsel for both sides, and between them and the F.M.C.S., designated as "Supplemental History of Arbitration Procedures," cover- ing that period, efforts were made to select arbitrators, and to delineate the grievances to be submitted to arbitration. The Union maintained, in effect, that it was entitled to separate arbitration for each of the five contractors and sought to select separate arbitrators on this basis. It refused to designate arbitrators to decide grievances of Respondent (and Capitol), who had not signed escrow agreements, mentioned elsewhere, and who refused to acknowledge that the master labor agreement was binding upon them. The Union refused to arbitrate this issue, which Respon- dent maintained should be decided by the court. The Association and its members, on the other hand, argued for the consolidation of all unresolved grievances in a single arbitration. The issue of arbitration remained unresolved at the time of the hearing in these proceedings. In view of the irreconcilable positions of the parties regarding the basic issue of whether Respondent executed or agreed to be bound by the master labor agreement, it would be an exercise in futility for the Board to remand the parties to arbitration to resolve a host of grievances outside the scope of these proceedings. Furthermore, the fact that the unilateral discontinuance of retroactive wage and fringe benefit increases may also have involved a contrac- tual violation remediable, in appropriate circumstances, by arbitration, does not preclude the Board from finding the conduct to constitute an unfair labor practice or require the Board to defer to arbitration.14 Finally, the record as a whole, including the voluminous correspondence between the parties, suggests that Respondent's entire course of 14 Cf. N. L. R. B. v. Chase Manufacturing Company, 492 F .2d 1300 (C.A. 7, 1974). HOME ROOFING CO., INC. 917 conduct, following approval by the C.I.S.C., of the retroactive wage and benefit increase, was an elaborate stratagem calculated to compel the Union to renegotiate the master labor agreement. For all the foregoing reasons, it is found that this is not an appropriate case for deferral to arbitration and that the policies of the Act will be best effectuated by deciding the issues raised by the pleadings. On January 10, 1974, the last day of the hearing in this proceeding, an action was filed in the superior court of the State of California for the county of Santa Barbara, Case No. 102241, on behalf of the eight roofing contractor- members of the Association, including Respondent, against the Union, for (1) order compelling arbitration; (2) declaration of rights, duties and sums due under written agreements; (3) declaratory relief re execution of master labor agreement by Home Roofing Co., Inc.; and (4) money damages for wrongful interference with business contract. D. The Refusal To Bargain 1. The appropriate unit; majority representation The complaint alleges, Respondent's answer admits, and it is hereby found, that the following-described unit is, and at all times material herein has been, an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by Respondent engaged in the application of roofing, waterproofing, slate, tile, asbestos (rigid), asbestos and composition siding and roof insulation materials, including enamelers, protec- tive coating workers, pipe wrappers, journeyman roofers, roofers, shinglers and siders, but excluding office clerical employees, guards and supervisors as defined in the Act. The complaint further alleges, Respondent's answer admits, and it is hereby found, that, at all times material herein, more particularly since on about November 2, 1972, to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above, and, by virtue of Section 9(a) of the Act, has been, and is now, 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 employ- ment. 2. The refusal to bargain It is undisputed that, although Respondent initially granted its employees the retroactive wage increase and contributed the increased payments to the trust fund, it subsequently ceased making these payments. Respondent's reasons for taking this action have previously been 15 The strike was subsequently terminated as to five of the seven contractors, who were members of the Association, when they executed escrow agreements with the Union, undertaking, among other things, to deposit the retroactive pay into an escrow fund, pending resolution of the dispute by arbitration . Respondent and Capitol Roof and Supply, Inc. refused to enter into an escrow agreement , and the Union continued the strike against them. considered and found to have furnished no justification therefor. The record sufficiently establishes that Respondent took this action unilaterally and without prior notice to the Union. Whatever negotiations may have taken place occurred after Respondent had discontinued making payments. Respondent's attempted justification for its action by reliance on the Union's alleged failure to abide by the contract, particularly in respect to the no-strike, grievance and arbitration, favored-nations, and other provisions, relates to issues raised after Respondent had taken unilateral action. Moreover, while these factors might be material in testing the Union's good faith if Respondent were charged with a general refusal to bargain, it is no defense to a charge of a limited refusal to bargain based solely on the unilateral discontinuance of authorized wage and benefit increases. It is, therefore, found that, by unilaterally and without prior notice to or negotiation with the Union, discontinu- ing and withholding retroactive wage and fringe benefit contributions, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5), thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. E. Further Refusal To Bargain, Interference, Restraint, and Coercion Before taking strike action, late in June or early in July, Business Agent Guerrero demanded that Respondent pay the retroactive wage and fringe benefit increases. Hall categorically stated that he did not intend to make any further payment of these items. He testified that, although he considered himself bound by the interim agreement he had signed (which would have expired by its terms on August 27, 1973), he told the employees who demanded their retroactive pay that he would not pay these increases until the dispute was resolved.15 When the men decided to strike, Hall told them, in an outburst of anger, to "stay out." The strike against Respondent continued, and was still in effect at the time of the hearing. About 2 weeks after the strike began, Hall started hiring replacements. Hall told applicants that the was operating "nonunion," and inquired whether they were union men.16 He admittedly told those who acknowledged union affiliation that they could work there but that they might get into trouble with the Union if they did. Some refused to accept employment under these circumstances. According to Hall, he hired replacements at the "basic union scales for apprentices and journeymen," although it does not appear whether he was applying the wage scales under the expired contract or the new one. Most of the replacements, Hall maintained, were inexperienced, and he started them at the apprentice scale, though he may have paid more 16 In his pretrial affidavit, which Hall affirmed, he is quoted as follows: "I have been 100 percent union for years, but since they made their demand for eight months retroactive pay and refused to talk about it, and went out on strike, I consider myself not bound with the Union in any way." According to the same affidavit, Hall also stated, "When I found out from the contractors association that I was the only one who paid, I told my men that I wasn't going to pay anymore." 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experienced men somewhat higher wages . Those working as foremen were paid at the rate of $7 an hour, less than the rate prescribed in either of the two most recent master labor agreements. Hall further testified that, since none of the replacements were union members, he made no contributions on their behalf for dues checkoff or fringe benefits.17 Although Hall's statements and conduct, related above, have not been alleged in the complaint as independent violations of Section 8(aX5) and (1) of the Act, the evidence was received without objection, and the issues were fully litigated. Moreover, the evidence introduced was sufficiently related to the allegations of the complaint to justify its admission. Hall's statement to applicants for employment, that he intended to operate "nonunion," and his order to the strikers to "stay out," even if based on his assumption that the interim agreement had expired and that he was no longer under any obligation to deal with the Union, was, nevertheless, in derogation of the Union's status as exclusive representative of the unit employees. The fact that the employees were on strike did not, of course, relieve Respondent of the obligation to bargain with the Union, and Hall's statement that he intended to operate "nonun- ion," was tantamount to a rejection of the Union as bargaining agent and constituted a refusal to bargain. This conclusion is further supported by Hall's pretrial state- ment, acknowledging Respondent's refusal to be bound by the contract. Hall's admitted interrogation of applicants for replace- ments as to whether they were "union," can hardly be justified as an effort to determine whether employees so hired might be subject to dues checkoff, since Respondent denied that it was bound by the master labor agreement containing such a provision. It is, therefore, evident that Hall's purpose in questioning these men was to make certain that those he hired were not union adherents. The fact that Hall told applicants that they could work there, irrespective of whether they were union men, did not dissipate the effects of Hall's otherwise unlawful interroga- tion, especially since he cautioned that they might get into trouble with the Union, thus discouraging them from accepting employment. Finally, Respondent's refusal to make contributions for fringe benefits on behalf of replacements, on the ground that they were not union members, constituted discrimina- tion based solely on considerations of union membership, violating the well-established principle that all unit employees, including replacements, are entitled to the benefits of the collective-bargaining agreement, without regard to union membership, subject only to the limitations of the proviso to Section 8(a)(3) of the Act. It is, therefore, found that, by Hall's statements to the striking employees, as well as to the replacements, related above ; by Respondent's unilateral determination of wage rates to be paid such replacements ; and by its failure and refusal to make the required contributions on their behalf to the trust funds, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5), and by all the foregoing conduct, has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(aXl) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent unilaterally and without prior notice to or negotiation with the Union, discontinued and withheld retroactive wage increases and fringe benefits required by the master labor agreement, effective from August 27, 1972, to August 27, 1974. It will, therefore, be recommended that Respondent reimburse said employees for the amounts of said wage increases , less such partial payments which Respondent may have paid retroactively, together with interest, computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent continue to pay its employees the wage increases required under said master labor agreement . It will further be recommended that Respondent make the contributions to the health and welfare fund, apprenticeship and training fund, together with the wage deductions for the vacation fund and the union dues checkoff, as required by said collective-bargaining agreement, together with interest computed in accordance with the his formula. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Home Roofing Co., Inc., Respondent herein, is now, and at all times material herein has been, an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent engaged in the application of roofing, waterproofing, slate, tile, asbestos (rigid), asbestos and composition siding and roof Ir According to De LaTorre, a roofing contractor and a trustee of the different attorneys as to whether contributions were required on behalf of health and welfare fund , legal opinions had been solicited from two replacements but no opinion had been forthcoming. HOME ROOFING CO., INC. insulation materials, including enamelers, protective coat- ing workers, pipe wrappers, journeyman roofers, roofers, shinglers, and siders, but excluding office clerical employ- ees, guards, 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. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137, the Union herein, was, on November 2, 1972, and, at all times material herein has been, the exclusive representa- tive of all employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally, and without prior notice to or consultation with the Union, discontinuing and withhold- ing retroactive wage increases and fringe benefit contrib- utions; by threatening to continue withholding such wage increases and fringe benefit contributions; by unilaterally establishing the wages of employees hired to replace striking employees and failing and refusing to make appropriate contributions on their behalf to the Trust Funds, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5), and by all of the foregoing conduct has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, within the meaning of Section 8(a)(1) of the Act. 6. By coercively interrogating applicants for employ- ment regarding their union membership or affiliation, Respondent has interfered with, restrained, and coerced employees, within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I make the following recommended: 18 ORDER Home Roofing Co ., Inc., Respondent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit, by unilaterally and without prior notice to or negotiation with the Union, discontinuing and withholding retroactive wage increases and fringe benefit contributions required by the master labor agreement, effective from August 27, 1972, to August 27, 1974, or making any changes in wages, hours, or terms or conditions of employment of its employees in the appropriate unit. (b) Coercively interrogating applicants for employment regarding their union membership or affiliation. (c) In any like or related manner , interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Slate , Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137, or any other labor organization, to bargain 919 collectively through representatives of their own choosing and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act, 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 a condition of employment, permitted by the proviso to Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Bargain collectively with the Union as the exclusive representative of Respondent's employees in the appropri- ate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Abide by, and apply the terms and conditions of, the master labor agreement, effective from August 27, 1972, to August 27, 1974, retroactively to the effective date thereof, and tender backpay to, and make contributions for fringe benefits to the trust funds, on behalf of the employees in the appropriate unit, in the manner set forth in the section above, entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its place of business at Santa Barbara, California, copies of the notice attached hereto and marked "Appendix." 19 Copies of said notice, on forms to be furnished by the Regional Director for Region 31, shall, after being signed by Respondent's duly authorized representative, be posted by Respondent immediately upon receipt thereof, 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 the Respondent to ensure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 31, in writing, within 20 days from receipt of this decision and Order, what steps Respondent has taken to comply herewith. 18 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. 19 In the event that the Board 's Order is enforced by a Judgment of a 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." 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association, Local Union No. 137, as the exclusive representative of all our employees in the appropriate unit, by unilaterally, and without prior notice to or negotiation with the Union, discontinuing or withholding retroactive wage increases and fringe benefit contributions required by the master labor agreement, effective from August 27, 1972, to August 27, 1974, or by making any changes in wages, hours, or terms or conditions of employment of our employees, without notice to and consultation with said Union. WE WILL NOT coercively interrogate applicants for employment regarding their union membership or affiliation. WE WILL NOT 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 organiza- tions, to join or assist United Slate, Tile and Compos- ition Roofers, Damp and Waterproof Workers' Associ- ation, Local Union No. 137, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act, 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 permitted by the proviso to Section 8(a)(3) of the Act, as amended. WE WILL NOT fail or refuse to pay our employees in the appropriate unit, described below, all wage increas- es required under the master labor agreement, above described, and make the contributions of fringe benefit increases to the trust funds, required under said Agreement. WE WILL bargain collectively with the Union as exclusive representative of our employees in said appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL abide by, and apply the terms and conditions of the master labor agreement, above described, to the employees in the appropriate unit, retroactively to the effective date thereof, and tender backpay to, and make contributions for fringe benefits to the trust funds, on behalf of the employees in the appropriate unit, in the manner set forth in the section of the Decision entitled, "The Remedy." The appropri- ate unit is: All employees employed by Respondent engaged in the application of roofing, waterproofing, slate, tile, asbestos (rigid), asbestos and composition siding and roof insulation materials , including enamelers, protective coating workers, pipe wrap- pers, journeyman roofers, roofers, shinglers, and siders, but excluding office clerical employees, guards, and supervisors as defined in the Act, as amended. HOME ROOFING CO., 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 compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7357.