Lee'S Roofing And Insulation

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hayden Lee Ponder d/b/a Lee's Roofing and Insula- tion and Local Union No. 47 of the United Union of Roofers, Waterproofers and Allied Workers, AFL-CIO. Case 20-CA-17087 30 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 8 November 1983 Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions' and a supporting brief, and the General Counsel filed an answering brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hayden Lee Ponder d/b/a Lee's Roofing and Insulation, West Sacramento, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilater- ally failing to file reports with, and make payments to, the unit employees' health and hospital trust fund pursuant to the terms of the collective-bar- gaining agreement between the Respondent and the Union. The Respondent admits the factual allega- tions of the complaint but denies that it has violat- ed the Act. Based on the reasoning set forth in my dissent in Rapid Fur Dressing, 278 NLRB 905 (1986), I would dismiss the complaint in its entire- ty. Rapid Fur Dressing similarly involved a failure to make pension fund contributions. In my dissent I elaborated on the guidance which Congressional intent provides (along with the dictates of the Board's heavy workload) in striking a proper bal- ance between those circumstances in which the Board should deem a dispute to be one of mere contract breach and leave the parties to their con- tractual and judicial remedies, and those in which ' No exceptions to the judge's discussion concerning Sec. 8(f) were filed. the Board should act to remedy a fundamental ab- rogation of a bargaining obligation and find an un- lawful labor practice. In striking this balance in Rapid Fur Dressing, I conclude that the employer's failure to make pension fund contributions was the nature of contractual breach best left to resolution by the parties in other forums. I reach the same conclusion with respect to the Respondent's breach here. Accordingly, I would dismiss the complaint in its entirety. Nancy E. Watson, for the General Counsel. Dennis B. Coop Esq. (Thierman, Simpson & Cook), of Sacramento, California, for the Respondent. Robert M. Hirsch, Esq. (Van Bourg, Allen, Weinberg & Roger), of San Francisco, California, for the Charging Party. DECISION ROGER B. HOLMES, Administrative Law Judge. The original unfair labor practice charge in this case was filed on May 10, 1982, by Local Union No . 47 of the United Union of Roofers, Waterproofers and Allied Workers, AFL-CIO. The first amended unfair labor practice charge in this case was filed on February 14, 1983, by the Union. The General Counsel's complaint was issued on June 25, 1982, against Hayden Lee Ponder d/b/a Lee's Roof- ing and Insulation. The General Counsel issued an amendment to his complaint on April 13, 1983. The Gen- eral Counsel alleges that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. In summary, the General Counsel alleges that the Respondent has failed and re- fused to bargain collectively with the Union by unilater- ally about January 1 , 1982, and continuing thereafter, failing to file reports with , and to make payments to, the unit employees' Health and Hospital Trust Fund pursu- ant to the terms of a collective -bargaining agreement be- tween the Respondent and the Union. (See pars. 9(a), 9(b), and 10 of the General Counsel's complaint, which was introduced into evidence as G.C. Exh. 1(c).) In the answer to the General Counsel's complaint, the Respondent denies the commission of the alleged unfair labor practices, and the Respondent raises certain affirm- ative defenses. In the answer to the allegations set forth in paragraph 9(a) of the General Counsel's complaint, the Respondent states that it "admits that it did not make payments into the Health and Hospital Trust Fund under the union's collective bargaining agreement, but denies that it was bound to any of the terms of said collective bargaining agreement and denies that it had any obliga- tion to make fringe benefit contributions on behalf of its employees pursuant to such an agreement." The Respondent also asserts five affirmative defenses. In summary, the Respondent alleges that: (1) the com- plaint fails to state a claim on which relief can be grant- ed; (2) NLRB lacks jurisdiction over the Respondent; (3) section 515 of the Employment Retirement Income and 280 NLRB No. 25 LEE'S ROOFING & INSULATION Security Act provides the exclusive remedy for collec- tion of allegedly delinquent trust fund contributions and, therefore, NLRB lacks jurisdiction; (4) the proceeding is barred by laches and waiver; and (5) any alleged agree- ment between the Respondent and the Union was a pre- hire agreement under Section 8(f) of NLRA and was properly terminated because the Union did not represent a majority of employees in an appropriate unit . (See G.C. Exh. 1(j).) The trial in this proceeding was held on August 2, 1983, at Sacramento, California. The time for the filing of briefs was extended to September 26, 1983. FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The Respondent is a sole proprietorship engaged in furnishing and installing roofing and insulation for both commercial enterprises and residential homes . The Re- spondent is located in West Sacramento, California. The Respondent's business operations meet the direct outflow jurisdictional standard. (See the stipulation at Tr. 7.) The status of the Charging Party as being a labor or- ganization within the meaning of Section 2(5) of the Act was admitted in the pleadings. II. THE WITNESSES AND CREDIBILITY RESOLUTIONS Three persons were called as witnesses at the trial of this proceeding. In alphabetical order by their last names, they are: Richard Franklin, who is the secretary and business representative of the Union; Hayden Lee Ponder, who is the owner of the Respondent; and Jack Schwartz, who is a certified public accountant and a partner in the accounting firm of Schwartz & Winkler. The findings of fact to be set forth herein are based on portions of the testimony given by each one of the wit- nesses who testified at the trial. Each one gave credible testimony with regard to the matters about which he tes- tified. In addition, findings of fact will be based on stipu- lations of fact on which the parties agreed at the trial and on documentary evidence introduced by the parties at the trial. III. THE COLLECTIVE-BARGAINING AGREEMENTS Introduced into evidence as General Counsel's Exhibit 2 was a copy of a collective-bargaining agreement be- tween the Respondent and the Union. (See also the stipu- lation at Tr. 7-8.) Introduced into evidence as General Counsel 's Exhibit 3 was a copy of an interim agreement between the Re- spondent and the Union . The document indicates that it was signed by the Respondent on September 3, 1980. (See also the stipulation at Tr. 8.) Introduced into evidence as General Counsel 's Exhibit 4 was a copy of a collective-bargaining agreement be- tween the Associated Roofing Contractors of Northern California, Inc. and the Union. The document indicates that it was signed by those parties on August 31, 1980. Article II, section A, of the contract indicates that the effective dates are from September 1, 1980 , through August 31 , 1983, and continuing thereafter unless written 245 notice is given to modify or to amend the agreement within the time period provided therein . (See also Tr. 9.) Introduced into evidence as General Counsel's Exhibit 5 was a copy of a collective-bargaining agreement be- tween the Respondent and the Union . The document in- dicates that it was signed by the Respondent on Decem- ber 2, 1982. (See also Tr. 9-10.) The document also indi- cates that the signatory parties to that agreement agreed to be bound by, and to become a party to, the collective- bargaining agreement which was introduced into evi- dence as General Counsel's Exhibit 4. IV. THE UNION'S STATUS The parties stipulated that the persons named below have been members of the Union from at least since June 1980 to the time of the trial on August 2, 1983 . The par- ties further stipulated that those persons are employees who have been reported as employees in the proper unit of the Respondent, or who have been noted on one of the .three audits as being roofers. Those persons are: John Abella, John F. Bennie, John R. Bennie Jr., Louis Cate, John Chavez, John Cornejo, Max Donovan, Julian Mar- quez, Patrick Maxwell, Walter Messer, Jeff Morford, James Patton, Larry Rogers, Wilson Short, and Jim Yeoman. Regarding Kerry Bode, the parties stipulated that he has been a member of the Union continuously from Oc- tober 1 , 1980, to the time of the trial. (See Tr . 18-22.) Franklin recalled that in June 1980, when Ponder signed a contract with the Union, Ponder brought in five or six of his employees to apply for membership in the Union. The Union referred those persons to work for the Respondent at that time. Thereafter, the Union continued to dispatch employees to work for the Respondent. Ac- cording to Franklin, all the employees listed by the Re- spondent on General Counsel's Exhibit 9 are members of the Union. (Regarding G.C. Exh. 9, see infra.) V. THE AUDIT AND ACTIONS TAKEN BY THE TRUST FUNDS Introduced into evidence as General Counsel's Exhib- its 9(a) through (g) were copies of "monthly remittance forms" submitted by the Respondent to the Union's "Health, Dental, Vacation & Pension Funds" for June through November 1980 and for April 1981. (See also Tr. 13.) Introduced into evidence as General Counsel 's Exhib- its 10(b) through (e) were copies of "monthly remittance forms" submitted by the Respondent to the Union's "Health, Dental, Vacation & Pension Funds" for July through November 1981. General Counsel's Exhibit 10(a) was described at the trial as being a "cover sheet" pre- pared by someone else. (See Tr. 13-15.) The parties stipulated that from June 1980 to the time of the trial on August 2, 1983, there were delinquencies in trust fund contributions which are owed by the Re- spondent to the Valley Roofers Trust Fund, but the amount of such delinquencies were in dispute . (See Tr. 16-17.) The parties also stipulated that there were no reports filed for the trust funds involved in this case, or any pay- 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments made, by the Respondent since December 3, 1982. (See Tr. 17-18.) Introduced into evidence as General Counsel 's Exhibit 6 was a copy of an audit of the Respondent's financial records for the period from June 1, 1980, to June 30, 1981 . The document is dated September 9, 1981, and it indicates that the audit was made by Schwartz & Winkler, certified public accountants, at the request of the Valley Roofers Health and Hospital Trust Fund. (See also Tr. 10-11.) Introduced into evidence as General Counsel's Exhibit 7 was a copy of an audit of the Respondent 's financial records for the period from July 1 , 1981 , to June 30, 1982. The document is dated October 12, 1982, and it in- dicates that the audit was made by the same accounting firm and reported to the same trust fund as was General Counsel's Exhibit 6. (See also Tr. 11-12.) Introduced into evidence as General Counsel's Exhibit 8 was a copy of a revised audit of the Respondent 's financial records for the period from June 1, 1980, to June 30, 1982. The doc- ument is dated March 14, 1983, and it indicates that the revised audit was made by the same accounting firm and reported to the same trust find as were General Coun- sel's Exhibits 6 and 7. (See also Tr. 12-13.) Regarding General Counsel's Exhibit 8, Schwartz explained at the trial that the revised audit was prepared pursuant to dis- cussions between the attorney for the trust funds and the attorney for the Respondent . Schwartz stated at tran- script 51, "As a result of all this , the auditor went back and came out with this third report, which deleted some of the men or some of the people who are included in this `81/`82 report. They were deleted because they were not doing roofing work. And I think both sides agreed to that." (See also the attorneys' comments and the stipula- tion at Tr. 52-55 regarding G.C. Exh. 8.) Schwartz ac- knowledged that the revised audit revealed that pay- ments of $57,223.04 had been received from the Re- spondent, but the audit concluded that deficiencies still existed in moneys due to the trust funds . (See Tr. 56-58.) Franklin recalled at the trial that he had discussed with Ponder on three to five occasions in 1980 the Re- spondent's failure to submit reports to the trust funds. Ponder told Franklin that he "was trying to get the re- ports caught up." (See Tr. 70.) Franklin said Ponder was late in sending in his contributions to the trust funds, and Ponder explained to him that the reason was, "He was strapped for money, correct." (See Tr. 78.) In October or Nevember 1981 Ponder had a telephone conversation with Gary Watts, who was an attorney rep- resenting the Valley Roofers Trust Funds at the time. Ponder said at transcript 84: He said he'd have to have some payment towards the delinquent trust fund; and that he would like to work out a payment arrangement with me. And I said: Fine. Because I'm concerned about them too. I told him that we would be able to make a $10,000 payment and approximately $3,000 a month thereafter; and he agreed. Subsequently Ponder made a payment of $10,000 and another payment in the amount of $3000, but he did not make any further payments to the trust funds . Ponder said, "I missed the next payment and they filed a law- suit." At the trial, Ponder explained that the reason was, "Basically, I didn't have the money." (See Tr. 85.) He said that was the same reason he had become delinquent earlier regarding to some of his trust fund contributions. He said that his financial condition continued to be in that manner at the time of the trial. Introduced into evidence as Respondent's Exhibit 1 was a copy of a complaint filed in the Superior Court of California, County of Sacramento, in Case 301803. The document indicates that the plaintiffs in that state court proceeding were the trustees of the Valley Roofers Trust Funds and the Respondent was one of the defendants. The document indicates that the complaint was filed on February 26, 1982. (See also Tr. 23-37.) Introduced into evidence as Respondent's Exhibit 2 was a copy of a letter dated November 10, 1982, from the attorney for the Respondent, Dennis B. Cook, to the attorney for the trust funds, Robert M. Hirsch. (See also Tr. 37.) The letter pertains to the Respondent's position regarding to the state court proceedings. (See R. Exh. 1.) Introduced into evidence as Respondent 's Exhibit 3 was a copy of a letter dated February 7, 1983, from the attorney for the Respondent to the attorney for the trust funds. (See also Tr. 38.) It pertains to the Respondent's position regarding the state court proceedings. (See R. Exh. 1.) Introduced into evidence as Respondent's Exhibit 4 was a copy of a letter dated March 22, 1983, from the attorney for the Respondent to the attorney for the trust funds. (See also Tr. 38.) It also pertains to the Respond- ent's position regarding the state court proceedings. (See R. Exh. 1.) Introduced into evidence as Respondent 's Exhibit 5 was a copy of a letter dated March 29, 1983, from the attorney for the trust funds to the attorney for the Re- spondent. (See also Tr. 38-39.) It pertains to the position of the trust funds regarding the state court proceedings. (See R. Exh. 1.) Introduced into evidence as Respondent's Exhibit 6 was a copy of a petition filed by the trust funds on April 18, 1983, under the provisions of Chapter 7 of the Bank- ruptcy Code, in the United States Bankruptcy Court for the Eastern District of California against the Respondent. (See also Tr. 39-46.) Introduced into evidence as General Counsel 's Exhibit 11 was a copy of a request filed on August 5, 1983, by the trust funds for the dismissal of the involuntary bank- ruptcy petition and order. VI. CONCLUSIONS Based on the findings of fact set forth in the preceding sections, I conclude that the General Counsel has intro- duced evidence which establishes a prima facie case that the Respondent has engaged in unfair labor practices within the meaning of Section 8(axl) and (5) of the Act as alleged in the complaint. The General Counsel has shown that the Respondent and the Union have been parties to a collective-bargaining agreement which pro- vides, among other things, for a "basic hourly wage LEE'S ROOFING & INSULATION rate." That "basic hourly wage rate" includes, as com- pensation for employees who are covered by the con- tract, certain fringe benefit payments. In that connection, the Respondent was obligated to file certain reports and to make certain contributions to trust funds on behalf of the Respondent's employees. The General Counsel has shown that the Respondent has not filed all the required reports and has not made all the contributions to the trust funds as provided for in the collective-bargaining agreement. Therefore, I conclude that the General Coun- sel has established a prima facie case that the Respondent has failed and refused to bargain collectively with the Union in violation of Section 8(a)(1) and (5) of the Act. Fox Painting Co., 263 NLRB 437 (1982); William B. Allen, Allcon, Inc., 267 NLRB 700 (1983); Angelus Block Co., 250 NLRB 868 (1980); Ortiz Funeral Home Corp., 250 NLRB 730 (1980). Having found that the General Counsel has established a prima facie case, I turn now to a consideration of the Respondent's affirmative defenses. Regarding the first af- firmative defense raised by the Respondent, which has been summarized at the outset of this decision, I con- clude that the General Counsel's complaint, as amended, meets the requirements of Section 102.15 of the Board's Rules and Regulations regarding the contents of a com- plaint which alleges unfair labor practices. With respect to the second affirmative defense, I conclude that the Respondent's business operations meet the Board's direct outflow jurisdictional standard. Concerning the third affirmative defense urged by the Respondent, I conclude that ERISA does not preclude the NLRB from considering the unfair labor practice issues in this case and ordering a remedy, if appropriate, in this matter. In its opinion in Hurn v. Retirement Fund Trust, Plumbing, Heating & Piping Industry, 703 F.2d 386 (9th Cir. 1983), the United States Court of Appeals for the Ninth Circuit held at 391: The Fund's broader argument that ERISA pre- empts the Taft-Hartley Act on pension issues is equally untenable. Both the Supreme Court and this court have recognized that the Taft-Hartley provi- sions parallel the ERISA provisions and that trust- ees must meet the requirements of each. [Case cita- tions omitted.] Where Congress intended ERISA to repeal or supersede other laws, state or federal, it said so. See 29 U.S.C. §§ 1031(a), 1144(a). But it said nothing about section 302(c)(5). ERISA was not to affect any Federal laws not specifically men- tioned, id. 1144(d), and it does not preempt Hum's Taft-Hartley claim. In this connection, see also the Supreme Court's opin- ion in Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982), especially at 86-88 regarding the legislative history per- taining to Section 515 of ERISA. In addition, the trustees of the Valley Roofers Trust Funds are the plaintiffs in the state court proceeding, while a different party, the Union, is the Charging Party in the unfair labor practice proceeding. Their interests are not necessarily identical. Camay Drilling Co., 239 NLRB 997 (1978). 247 Finally, the remedies available in the state court pro- ceeding are not the same as those if unfair labor practices are found in this proceeding. Regarding the fourth affirmative defense raised in the pleadings, I conclude tht the facts do not support the view that this proceeding is barred by laches and waiver. In this connection, I note that the original unfair labor practice charge was filed by the Union on May 10, 1982, and the earliest date of the alleged unfair labor practices is January 1, 1982. The Union's actions in this proceed- ing do not indicate that the Union has waived its claims or failed to pursue them. Regarding the fifth affirmative defense, I conclude that the evidence does not establish affirmatively that the col- lective-bargaining relationship between the Respondent and the Union was a prehire agreement permissible under Section 8(f) of the Act. In addition, the Respond- ent contends that it has not repudiated its contract. The Respondent's attorney candidly stated at transcript 28, "We have not repudiated any collective bargaining agreement in the past with Roofers Local 47." (See also Tr. 32.) Nevertheless, the evidence indicates that a ma- jority of the roofing employees of the Respondent were members of the Union. (See the stipulation at Tr. 18-22 and the testimony of Franklin at Tr. 60-63.) In view of the foregoing, I conclude that the affirma- tive defenses asserted in the Respondent's answer to the General Counsel's complaint do not have merit. Additionally, the attorney for the Respondent urges that the counsel for the General Counsel's contentions in this proceeding are contrary to the General Counsel's advice memorandum published at 112 LRRM 1440. The name of the employer involved in that advice memoran- dum is Boeliner Concrete Co. (See Tr 24-28 and 32-33. See also Br. 7 of the Respondent's posttrial brief.) Coun- sel for the General Counsel urges that the advice memo- randum in the Boeliner matter is not a precedent for de- ciding unfair labor practice cases and that the facts in the Boeliner matter is not a precedent for deciding unfair labor practice cases and that the facts in the Boeliner matter are different from the facts in the present pro- ceeding. (See fn. 4 on p. 5 of the posttrial brief filed by the counsel for the General Counsel.) I conclude that the advice memorandum of the General Counsel merely re- flicts the General Counsel's legal position regarding the matter described therein, and that the General Counsel's legal position is not the equivalent of Board precedent. The Board has made it clear that its administrative law judges have a duty to apply established Board precedent, unless that precedent has been reversed by the Board itself or by the Supreme Court. Ford Motor Co., 230 NLRB 716 (1977), enfd. 571 F.2d 993 (7th Cir 1978), affd. 441 U.S. 488 (1979). See also Insurance Agents' International Union (Prudential Co.), 119 NLRB 768 (1957). Both the original unfair labor practice charge and the first amended unfair labor practice charge are broader than the General Counsel's complaint allegation in para- graph 9(a) of his complaint in that the Union's charges allege the Respondent's "failure to pay fringe benefits under the collective bargaining agreement." The General 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's original complaint, which issued on June 25, 1982, and the General Counsel's amendment to com- plaint, which issued on April 13, 1983, referred in para- graph 9(a) only to the "Health and Hospital Trust Fund." The complaint allegations did not mention the other trust funds. Articles IX and X of the collective-bargaining agree- ment, which were introduced into evidence as General Counsel's Exhibit 4 at the trial, reveal that the trust funds are: the Valley Roofers Health and Hospital Trust Fund; the Dental Fund; the Pension Plan; the Roofers Vacation Fund; the Sacramento Area Roofers Joint Ap- prenticeship Training Fund; the Sacramento Area Roof- ing Industry Promotion Fund; and the Sacramento Area Union Roofers Administrative Trust Fund. Notwith- standing the fact that the General Counsel's complaint and the amendment to the complaint specify only the Health and Hospital Trust Fund, I conclude that the issues pertaining to the Respondent's failure to file re- ports and to make the appropriate contributions have been "fully litigated" at the trial. Therefore, findings should be made regarding those matters. Alexander's Res- taurant & Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978). However, the remedial order will not be applicable to the Industry Promotion Fund and the Administrative Trust Fund. Fox Painting Co., 263 NLRB 437 (1982). CONCLUSIONS OF LAW 1. The Respondent has been an employer engaged in commerce, at all times material herein, within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union has been a labor organization, at all times material herein , within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been the exclusive collective-bargaining representative of the em- ployees of the Respondent in the appropriate bargaining unit described below: All journeymen roofers, enamelers, and pipe wrap- pers, damp and waterproof workers, and appren- tices employed by the Respondent at its West Sac- ramento, California, facility; excluding all other em- loyees, guards and supervisors as defined in the Act. 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act since January 1, 1982, by failing and refusing to bar- gain collectively with the Union as the exclusive collec- tive-bargaining representative of the employees in the unit described above by failing to file reports with, and by failing to make payments to, the trust funds provided for in the collective-bargaining agreement between the Respondent and the Union. Those trust funds are: the Valley Roofers Health and Hospital Trust Fund; the Dental Fund; the Pension Plan; the Roofers Vacation Fund; and the Sacramento Area Roofers Joint Appren- ticeship Training Fund. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (5) of the Act, I shall recom- mend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices. I shall also recommend to the Board that the Re- spondent be ordered to take certain affirmative action to effectuate the policies of the Act. Such recommendations will be set forth in the recommended Order herein. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Hayden Lee Ponder d/b/a Lee's Roofing and Insulation, West Sacramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of the employees in the unit described below by failing to file reports with, and by failing to make pay- ments to, the trust funds provided for in the collective- bargaining agreement between the Respondent and the Union. Those trust funds are: the Valley Roofers Health and Hospital Trust Fund; the Dental Fund; the Pension Plan; the Roofers Vacation Fund; and the Sacramento Area Roofers Joint Apprenticeship Training Fund. The appropriate bargaining unit is: All journeymen roofers, enamelers, and pipe wrap- pers, damp and waterproof workers, and appren- tices employed by the Respondent at its West Sac- ramento, California, facility; excluding all other em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed to them by the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the unit described herein, and abide by the terms of the collective-bargain- ing agreement between the Respondent and the Union. (b) Make whole the unit employees of the Respondent who have incurred losses of wages and benefits because of the Respondent's failure to abide by the terms and conditions of the collective-bargaining agreement with the Union. In making whole such unit employees, the Respondent shall reimburse the unit employees of the Respondent for any medical, dental, or any other ex- penses ensuing from the Respondent's failure to file re- 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." LEE'S ROOFING & INSULATION ports with, and to make payments to, the contractually required trust funds. The foregoing remedy shall include reimbursing employees for contributions they may have made to the trust funds after the Respondent failed timely to make such contributions to those funds: reim- bursing employees for any premiums which the unit em- ployees may have paid to third-party insurance compa- nies to continue medical and dental coverage in the ab- sence of the Respondent's contributions to the trust funds; and for any medical or dental bills which the unit employees have paid directly to health care providers that the contractual policies would have covered. In making whole the unit employees, the remedy will be in accordance with the Board's decisions in Father & Son Painting, 267 NLRB No. 176 (1983) (not reported in Board volumes); Fox Painting Co., 263 NLRB 437 (1982); Kraft Plumbing, 252 NLRB 891 (1980); Angelus Block Co., 250 NLRB 868 (1980); and Ortiz Funeral Home Corp., 250 NLRB 730 (1980). Such monetary amounts are to be computed in accord- ance with the Board's decision in Ogle Protection Service, 183 NLRB 682 (1970), with interest thereon as pre- scribed in Isis Plumbing Co., 138 NLRB 716 (1962); Flori- da Steel Corp., 231 NLRB 651 (1977), and Olympic Medi- cal Corp., 250 NLRB 146 (1980). In addition, the Re- spondent shall pay the contractually agreed-upon trust funds in the amounts of the contributions which the Re- spondent failed to make on behalf of the Respondent's unit employees in accordance with the Board's decision in Fox Painting Co., with any interest applicable to such payments to be computed in accordance with the Board's decision in Merryweather Optical Co., 240 NLRB 1213 (1979). (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its West Sacramento, California facility copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 249 I WILL NOT fail and refuse to bargain collectively with Local Union No. 47 of the United Union of Roofers, Waterproofers and Allied Workers, AFL-CIO as the ex- clusive collective-bargaining representative of the em- ployees in the unit described below by failing to file re- ports with, and by failing to make payments to, the trust funds provided for in the collective-bargaining agree- ment between my Company and the Union. Those trust funds are: the Valley Roofers Health and Hospital Trust Fund; the Dental Fund; the Pension Plan; the Roofers Vacation Fund; and the Sacramento Area Roofers Joint Apprenticeship Training Fund. The appropriate bargain- ing unit is: All journeymen roofers, enamelers, and pipe wrap- pers, damp and waterproof workers, and appren- tices employed by the Respondent at its West Sac- ramento, California, facility; excluding all other em- ployees, guards and supervisors as defined in the Act. I WILL recognize and, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the unit described above, and, I WILL abide by the terms of the collective- bargaining agreement with the Union. I WILL make whole the unit employees who have in- curred losses of wages and benefits because of the failure to abide by the terms and conditions of the collective- bargaining agreement with the Union. In making whole such unit employees, I shall reimburse the unit employ- ees for any medical, dental, or any other expenses ensu- ing from the failure to file reports with, and to make payments to, the contractually required trust funds. The foregoing remedy shall include reimbursing employees for contributions they may have made to the trust funds after I failed timely to make such contributions to those funds; reimbursing employees for any premiums which the unit employees may have paid to third party insur- ance companies to continue medical and dental coverage in the absence of my contributions to the trust funds; and for any medical or dental bills which the unit employees have paid directly to health care providers that the con- tractual policies would have covered. Such monetary amounts, and appropriate interest thereon, will be com- puted in accordance with National Labor Relations Board decisions. In addition, I WILL pay the contractual- ly agreed-upon trust funds in the amounts of the contri- butions which were not made in behalf of my employees, and interest therein will be computed in accordance with NLRB decisions. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I WILL NOT in any like or related manner, interfere rights which are guaranteed to them by the National with, restrain, or coerce my employees in the exercise of Labor Relations Act. HAYDEN LEE PONDER D/B/A LEE'S ROOF- ING AND INSULATION