Mclean County Roofing And Accurate Roofing

MCLEAN COUNTY ROOFING 685 McLean County Roofing and Accurate Roofing and United Union of Roofers, Waterproofers, and Allied Workers, Local No. 69, AFL-CIO. Cases 33-CA-6083 and 33-CA-6198 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND JOHANSEN On December 27, 1983, Administrative Law Judge James M. Fitzpatrick issued the attached de- cision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with the Decision and Order. The Respondent, McLean County Roofing, is a sole proprietorship of David Riddle engaged in the business of roofing construction. In May 1977, the Respondent entered into the first of three succes- sive 1-year collective-bargaining agreements with Roofers Local 130 covering all the Respondent's roofing employees. Throughout the term of the three agreements the Respondent deducted union dues and permit fees from a majority of its employ- ees and made regular monthly contributions on their behalf to Local 130's pension fund. There is no evidence that Local 130 became the exclusive representative of the Respondent's employees through a Board-conducted election or by volun- tary recognition based on a claim and clear show- ing of majority support among the Respondent's employees in an appropriate unit. On January 1, 1980,1 Local 130 merged with its sister local, Local 69 (the Union). Local 69 sur- vived the merger and assumed responsibility for administrating the remaining 4 months of the Local 130 contract and for negotiating a successor agree- ment. On April 22 the Union, the Respondent, and representatives of other area roofing contractors who had been signatories to Local 130 contracts met to negotiate a successor agreement.2 The par- ties used the existing Local 130 contract as a basis for negotiations but adjourned this meeting without reaching an agreement. ' All dates are in 1980 unless otherwise indicated. a The Respondent participated in negotiations as a separate entity and not as a member of a multiemployer bargaining group. Riddle attended and represented the Respond- ent's interests at the April 22 meeting but did not attend the next negotiation session that took place on April 29. Following expiration of the contract on April 30, the parties met a third and final time on May 8 when agreement on a new contract ap- parently was reached . At this last session as at the first, Riddle did not specifically state that he agreed or disagreed with the contract proposals ex- changed and agreed to by the Union and the spokesman for the contractors, although he did state he would not sign anything that would inter- fere with his making a living. At the conclusion of the last negotiating session, the Union made arrangements to have the contract typed and mailed or hand delivered to the contrac- tors. Joe Keen, former business representative of Local 130, delivered two copies to Riddle about June 1 and instructed Riddle to sign one and return it to the Union. Riddle told Keen that he "wouldn't sign it but I would try to live by some of it, whatever I could, but I couldn't live by the whole thing because it would break me." As noted by the judge, Riddle was disturbed by the con- tract's wage provisions that called for periodic raises over the next 2-1/2 years. Accordingly, he told Keen that he would probably sign if it was a 1-year contract. The contract delivered by Keen, though other- wise complete, did not contain terms specifying its duration. Article 19 of the document was entitled "Duration of Agreement," but nowhere in that provision is a termination date either expressly stated or a procedure set out that provides for ter- mination following notice given by one of the par- ties. Union Business Agent Charles Ford visited Riddle in late June or early July to pick up a signed contract. Riddle claimed that he handed Ford an unsigned copy of the contract although Ford testified that the copy had Riddle 's signature on it. No copy of the contract was produced at trial. The judge found the evidence insufficient to establish that Riddle had signed the contract. Notwithstanding Riddle's refusal to sign the con- tract, the judge found that the Respondent became a contracting party because it substantially adopted and implemented the agreement. Having deter- mined that the Respondent employed a permanent and stable work force during the relevant period, the majority of whom financially supported the Union with their dues, the judge concluded that the status of Local 69 as the representative of the Respondent's employees was, in effect, converted and governed by Section 9(a) of the Act rather than Section 8(f), and that Local 69 was entitled to 290 NLRB No. 82 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD recognition as the representative of the roofing crew on that basis.g Accordingly, he determined that the Respondent violated Section 8(a)(5) when it withdrew recognition from the Union in October 1982. We disagree. In our recent decision in John Deklewa & Sons, 282 NLRB 1375 (1987), we rejected the "conver- sion doctrine" relied on by the judge and adopted instead the principle that a union signatory to an 8(f) agreement acquires immediate but limited 9(a) status and may enforce the agreement under Sec- tion 8(a)(5). Specifically "the obligations we impose on an 8(f) employer through our application of Section 8(a)(5) to 8(f) agreements are limited to prohibiting the unilateral repudiation of the agree- ment until it expires or until that employer's unit employees vote to reject or change their represent- ative." Deklewa, 282 NLRB supra at 1387. Further- more, "[t]he enforceable Section 9(a) status we confer on signatory unions is also only coextensive with the bargaining agreement which is the source of its exclusive representational authority. Beyond the operative term of the contract, the signatory union acquires no other rights and privileges of a 9(a) exclusive representative." Id. at 1387. Implicit in these new governing principles is the fundamental requirement that the parties to an 8(f) relationship reach a meeting of the minds on all material terms and voluntarily enter into an agree- ment. As noted earlier, the collective-bargaining agreement is the sole source of the union's exclu- sive representational authority in the 8(f) context.4 Absent an agreement, an 8(f) union has no limited 9(a) status. Here, the record does not support a finding that the parties entered into an agreement. The Respondent's owner, David Riddle, never consented to be bound by an agreement and when the written contract was presented to him by the Union for signature he refused to sign it. He told the union business agent that he would live by some, but not all, of the agreement and he express- 3 The "conversion doctrine" provided that a collective-bargaining agreement/relationship governed by Sec. 8(f) could become an agree- ment/relationship governed by Sec. 9(a) on a showing by the Union that it enjoyed majority support among an appropriate unit of the signatory employer's employees. Under this doctrine, 9(a) status could be attained in the absence of a Board certification or a prior demand for recognition based on the clear showing of majority support. 4 As we emphasized in Deklewa, we do not mean to suggest that a union involved in the construction industry could not achieve 9(a) exclu- sive representative status by the traditional means of voluntary recogni- tion based on a clear showing of majority support among the unit em- ployees, e.g., a valid card majority . Dekiewa, supra, 282 NLRB at 1387 fn. 53. We have also held that in light of the legislative history and the traditional prevailing practice in the construction industry, we will re- quire the party asserting the existence of a 9(a) relationship to prove it. Id. at 1385 fn. 41 . Here, as noted earlier, there is no evidence that the Union attained 9(a) status either through a Board -conducted election or through voluntary recognition based on a prior claim and clear showing of majority support among the employees in an appropriate unit. ly stated that his reason for refusing to sign was the contract's lack of a 1-year durational term and its call for escalating wages at periodic intervals over 2-1/2 years. The absence of a termination provision in the contract is further evidence that the parties did not have an agreement . The Board has refused to find a violation of Section 8(a)(5) when a contract, though otherwise complete, did not contain terms specifying its duration and the parties have reached no understanding with respect to that issue. Spring- field Electric Service Co., 285 NLRB 1305 (1987). Finding that the contract in that case was incom- plete in an important respect, the Board effectively determined that it could not supply the omission and found the respondent did not unlawfully refuse to execute the contract.5 In the case at bar, the contract presented to Riddle by the union business agent contained no termination date, despite the fact that all three contracts with Local 130 previ- ously signed by Riddle explicitly provided for set terms of 1 year. The parties clearly failed to agree on a termination date. Indeed, Riddle told the Union that if it were a 1-year contract he would probably sign it on the spot. The Respondent's statement that it would not sign the contract because "it couldn't live by the whole thing," the omission of a termination date, and the failure to sign the contract show that the parties never entered into a collective-bargaining agreement. That the Respondent substantially fol- lowed most of the provisions of the agreements is not a substitute for a voluntary agreement on all material terms which is binding on the parties. The absence of such an agreement is particularly criti- cal here, in an 8(f) relationship, when the Union's access to the provisions of Section 8(a)(5) can only be secured from, and is limited to, the duration of a valid 8(f) agreement. We, therefore, find that the a See also Roman Iron Works, 282 NLRB 725 (1987) (a contract arises only after a meeting of the minds on all material terms); Interprint Co., 273 NLRB 1863, 1865 (1985) (no meeting of the minds because, inter alia, the agreement lacked commencement and termination dates). In the instant case, the judge noted the absence of a termination date and determined that the agreement was a contract with no fixed duration. However, the cases cited by the judge do not hold that contracts of no fixed duration are enforceable agreements. Instead, the cases cited by the judge concern questions of contract bar and do not reach the issue of whether there was a meeting of the minds on all material terms. Thus, in Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990 (1958), the Board held that contracts having no fixed duration will not be considered a bar to a representation petition. Without addressing the issue of wheth- er such contracts were otherwise valid agreements, the Board concluded that it would unjustifiably abridge the statutory right of employees to seek representatives if the contract-bar policy were extended to parties who did not enter into "mutual and binding commitments thereby reason- ably insuring that for the duration of the agreement neither party will disrupt the bargaining relationship by unilaterally attempting to force changes in the conditions of employment upon the other." Id. at 994. " The judge found that in certain respects the Respondent did not abide by the agreement. MCLEAN COUNTY ROOFING Respondent did not violate Section 8 (a)(5) and (1) of the Act by withdrawing recognition from the Union in October 1982 or in any other respect as alleged by the General Counsel herein.? ORDER The complaint is dismissed. MEMBER JOHANSEN, dissenting in part. I agree with the majority in all respects save one-the decision to overrule the judge's unexcept- ed-to finding that it was unlawful for the Respond- ent to tell employees "that it was a nonunion com- pany and they was [sic] union. I said I would have to get some different help because you guys want to be union members." The majority converts this ultimatum to employees to choose between union membership and jobs into an innocuous statement that they must work under nonunion conditions and finds the ultimatum, in its new guise, is not un- lawful. I do not agree. The reasonable tendency of an employer's statement that it has to get "new help" because its employees "want to be union members" is to induce employees into forswearing allegiance to the union. That is unlawful, and I would fmd it so. 7 In light of our determination that the Respondent had no bargaining obligation with the Union, we find it unnecessary to pass on the judge's findings that Accurate Roofing , a nonunion company, was the alter ego of the Respondent and that Accurate and the Respondent are a single employer. The judge found an 8(a)(1) violation based on testimony of Dennis Casey, a half owner of Accurate, concerning remarks he made to three roofers who had worked for McLean and who inquired about working on some jobs for Accurate. We reverse. The statements quoted by our dissenting colleague, when read in context, did not reasonably convey the message that these employees would have to surrender their union mem- bership if they worked for Accurate. It merely suggests that he thought that union members would not want to work for the nonunion scale that Accurate paid. The employees indicated that if no union work was avail- able, they were willing to work on lower-paying nonunion jobs, because they did not "really go by the union all the time anyway." Hence they were offered the jobs. Because, as we have found, there was no recogni- tional obligation on the part of McLean that could have been imposed on Accurate, Casey was simply giving a lawful and correct report of the nonunion status of Accurate's jobs. For these reasons, Mueller Insulation Co., 263 NLRB 757, 760 (1982), relied on by the judge, is distinguishable. In Mueller, an employer that was currently bound to a union agreement told its employees that they must surrender their union representation and work for its new nonunion company or lose their jobs. There was no such forced choice here. We note that, although no specific exception was taken to the 8(a)(1) finding, the Respondent did except to the judge's finding on which this violation was based, i.e., that the Respondent had a bargaining obligation with the Union. Will Vance, Esq. and John Gwynn, Esq., for the General Counsel. J. Reed Roesler, Esq., of Peoria, Illinois, for the Respond- ents. Patricia Benassi, Esq., of Peoria, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE 687 JAMES M. FITZPATRICK , Administrative Law Judge. In this case a unionized roofing contractor set up a parallel nonunion or "double-breasted" enterprise. The ultimate question here is whether this ploy involved unfair labor practices. I fmd it did. Further questions are whether he could, at a later point, without consulting the Union, raise the take-home pay of employees by paying them in- stead of the Union the union dues and oontributions to the union health and welfare fund because many employ- ees indicated disaffection with the Union and then refuse to recognize the Union further on the claim that it no longer represented a majority of employees. I fmd he cannot do this because he acted in an atmosphere of con- tinuing unfair labor practices. These proceedings arise from unfair labor practice charges filed July 27, 1982, and amended October 1, 1982, in Case 33-CA-6083 and filed October 7, 1982, and amended November 4, 1982, in Case 33-CA-6198 by United Union of Roofers, Waterproofers, and Allied Workers Local No. 69, AFL-CIO (Local 69) against McLean County Roofing and Accurate Roofing (Re- spondents). A complaint based on the charges in Case 33-CA-6083 issued September 3, 1982, and was amended October 1, 1982, and another complaint based on the charges in Case 33-CA-6198 issued November 5, 1982, and was amended on January 11 and 13, 1983 , both com- plaints alleging that Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondents answered each complaint and the admendments, denying commission of any unfair labor practices. On November 5, 1982, the two proceedings were consolidated. Although the pleadings appear to raise an issue as to Board jurisdiction, there is no such issue, the parties having stipulated facts sufficient to establish jurisdiction. Other issues raised by the pleadings are whether McLean and Accurate are a single employer or one the alter ego of the other; whether McLean recognized Local 69 and its predecessor and maintained contracts with them cov- ering McLean employees; whether the roofing employ- ees of McLean and Accurate together constitute an ap- propriate bargaining unit; whether Local 69 represents a majority of roofing employees of McLean and Accurate in that bargaining unit; whether Respondents unilaterally and unlawfully changed the pay and conditions of em- ployment of employees working for Accurate and later for those working for McLean, refused to supply Local 69 with relevant information for bargaining, solicited em- ployees to abandon Local 69, informed employees they would have to be nonunion in order to work for McLean; and whether McLean unlawfully withdrew recognition of Local 69. As affirmative defenses Re- spondents assert (1) that objective evidence indicates a majority of the employees of both McLean and Accurate do not desire Local 69 to represent them and (2) that the collective-bargaining agreement contains illegal union-se- curity clauses. The consolidated cases were heard before me at Peoria, Illinois, on January 6, 7, 11, and 12, 1983. 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Based on the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel and the Respondents, I make the following FINDINGS OF FACT I. JURISDICTION ' McLean is a sole proprietorship of David A. Riddle (Riddle). Accurate is a partnership of Riddle and Dennis Casey. Both McLean and Accurate are engaged at Bloomington, Illinois, in the roofing construction busi- ness. During the 12 months preceding issuance of the complaints, a period representative of its operations, McLean purchased and received at Bloomington, Illi- nois, products and materials valued over $50,000, which came directly from points outside Illinois or from suppli- ers within Illinois who had purchased them directly from sources outside Illinois. In addition, during the same period McLean performed work valued over $50,000 for commerical customers within Illinois which were en- gaged in commerce within the standards applied by the National Labor Relations Board (the Board). McLean is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The evidence respecting Accurate, considered as a separate enterprise, is insufficient to satisfy Board juris- dictional standards. However, as found hereinafter, McLean and Accurate are a single employer, one is the alter ego of the other, and the employees of both togeth- er constitute a unit appropriate for collective bargaining. Accurate is therefore subject to Board jurisdiction. II. THE UNIONS Local 69 historically has represented employees per- forming roofing, waterproofing, and similar types of work in the construction industry in Peoria, Illinois, and the surrounding area. Prior to January 1 , 1990, its sister local, United Slate, Tile and Composition Roofers, Damp and Waterproof Worker's Association, Local Union No. 130, AFL-CIO (Local 130), represented employees simi- larly engaged in and around Bloomington, Illinois. On January 1, 1980, Local 130 merged into Local 69, Local 69 surviving the merger and subsequently representing roofing employees in' the entire area previously served by both Locals. Local 130 then ceased to exist as a sepa- rate organization. At all times material to these proceed- ings Local 69 has been, and prior to January 1, 1980, Local 130 also was, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of McLean County Roofing Ca McLean was established by Riddle as a roofing enter- prise in early 1977. He has been its sole owner and chief operating officer. In May 1977 on behalf of McLean he entered into the first of three successive, annual, collec- tive-bargaining agreements with Local 130, covering all the full-time and regular part-time journeymen roofers, helpers, and apprentices employed at McLean's Bloom- ington, Illinois facilities. I find this to be an accurate de- scription of a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 1. The status of Local 130 Respondents contend that the majority status of Local 130 during its incumbency has not been established. No Board election nor certification has determined the status of Local 130 as the representative of those employees. The parties agree that during the terms of the three Local 130 collective-bargaining agreements McLean de- ducted union dues and permit fees for a majority of its roofing employees and forwarded those deductions to Local 130. McLean also made regular contributions to the union pension fund for a majority of its roofing em- ployees.' These circumstances tend to show the majority status of Local 130 and I find they are sufficient to dem- onstrate that status. Haberman Construction Co., 236 NLRB 79, 84 (1978), enfd. 618 F.2d 288 (5th Cir. 1980), modified 641 F.2d 351 (5th Cir. 1981). 2. The incumbency of Local 69 With the merger of Local 130 into Local 69 on Janu- ary 1, 1980, Local 69 took over the administration of the outstanding Local 130 collective-bargaining agreements. Each of the contracting employers, including McLean, was informed of the merger and assured that the provi- sions of the Local 130 agreement would remain un- changed through the balance of its terms, which ran until April 30, 1980, at which time a successor collective- bargaining agreement would be negotiated by Local 69. McLean continued to adhere to the Local 130 agreement throughout its term. a. Negotiation of the Local 69 contract On April 22, 1980, prior to the expiration of the Local 130 agreement, representatives of Local 69 met with offi- cials from three roofing enterprises in the Bloomington area respecting a successor agreement . Acme Roofing was represented at the meeting by William Nafziger, Union Roofing by Ted and Stan Hoselton, McLean by David Riddle, and Local 69 by its Business Representa- tive Charles Ford. Ford proposed a new agreement which would raise wage rates in the Bloomington area to parity with the higher. rates in effect in the Peoria area The proposed increases engendered strenuous opposition from the employer side, particularly from Stan Hoselton, and the meeting ended without agreement being reached. Riddle participated by his presence and, as did the others, going over item by item an old contract being used as the basis for negotiations, but he said little during the session. He did not overtly express agreement nor, apparently, disagreement with the proposals. It is unclear precisely how the meeting ended. Riddle testified he was the first to leave, and there is no evidence about what went on after that other than the undisputed fact that no agreement was reached. A second session, held April 28, was not attended by Riddle although he had notice of it. ' Local 130 apparently had no health and welfare fund. MCLEAN COUNTY ROOFING 689 That meeting also ended with no agreement between Local 69 and the Bloomington contractors. While Ford was negotiating with the Bloomington contractors, he was carrying on parallel negotiations with the Peoria contractors. As the April 30 contract ex- piration deadline approached without agreement being realized for either area, Ford agreed with the Peoria contractors to extend their existing agreement 10 days beyond expiration to accommodate further negotiations. He also contacted Ted Hoselton of Union Roofing in Bloomington to inquire whether the Bloomington con- tractors would similarly agree to an extension of their old agreement. On the evening of April 30, Hoselton in- formed Ford the Bloomington contractors would not agree to an extension. At midnight that agreement ex- pired. For the next 2 days Local 69 picketed the Bloom- ington contractors, including McLean. On or about May 2, Ford and Earl Kruse, an International vice president of the United Union of Roofers, Waterproofers and Allied Workers, AFL-CIO, the two Hoseltons and Naf- ziger, attended a meeting in Bloomington unrelated to these contract negotiations. However, following that meeting they engaged in some unscheduled, informal, ne- gotiating in the course of which the Hoseltons and Naf- ziger informally agreed with Ford on a wage and benefit increase package which could eventually result in wage parity between Bloomington and Peoria. The final formal negotiating session for Bloomington took place May 8 and was attended by Nafziger, the two Hoseltons and Riddle on the employer side, and by Ford, Joe Keen, previously business representative of Local 130, and members of the Local 69 negotiating committee on the union side . The union proposal was to phase in wage increases over a 3-year period, as had been discussed at the earlier informal meeting on May 2. Other matters such as health and welfare and fringe ben- efits were also discussed. On the employer side Ted Ho- selton did most of the talking. According to Ford, he was the spokesman for all the contractors. Riddle voiced his concern, stating he would not sign anything that would interfere with his making a living , but he had little else to say. He did not specifically say he agreed, nor did he specifically say he disagreed . Both Ford and Keen re- ceived the impression that all the contractors, including Riddle, agreed. A consensus was reached between the Union and Ted Hoselton, the de facto spokesman for the employers. Although Riddle was the first to leave. I find, based on the credited testimony of Keen , that agreement was reached before Riddle left. There is no evidence of any negotiations after he left, and although Riddle testi- fied that discussions were still going on when he left, it is obvious he was not present to observe whether they con- tinued. The testimony of Ford indicates negotiations did not continue. The testimony of Keen, who impressed me as a reliable witness, indicates that agreement was reached while Riddle was still present . Accordingly, I do not credit Riddle's contradictory testimony that he had not knowledge of any agreement. Subsequent to the conclusion of negotiations, Ford drafted the test of the new agreement and arranged with one of the contracting companies for typing. Because of difficulties in the typing, 3 to 4 weeks passed before copies finally were available for distribution at the end of May or the first part of June. The opening language of the agreement states it is made and entered into as of May 1, 1980. From this, as well as the substantive terms of the agreement, it is clear that it went into effect as of that date. The duration of the agreement, however, is open to question. No date for termination is stated in the agreement nor do its terms provide a procedure for ter- mination. Article XIX is entitled "Duration of Agree- ment," but the text of that article deals only with the un- dertaking of signatory employers who are not members of the Greater Peoria Area Roofing Contractors Associa- tion to be bound by any amendments, extensions, or changes in the contract agreed to between that associa- tion and the Union, and to be bound by all subsequent contracts between the association and the Union unless the individual employer notifies the Union of its revoca- tion of this authorization 90 days "prior to the expiration of this or any subsequent agreement," which expiration date appears nowhere in the document. Although the agreement contains no expiration date, various of its sub- stantive terms became effective at definite times subse- quent to the commencement date of May 1, 1980. Thus, article III provides that in the Bloomington-Pontiac area makeup days will remain the same until May 1, 1981; Sunday and holiday work will be at double rate and other overtime at time and a half until January 1, 1983; and loading time will remain unchanged until May 1983. Article V with respect to wages in the Bloomington area provides a rate effective May 1 , 1980, and thereafter periodic increases on September 1, 1980; November 1, 1980, May 1, 1981 ; September 1, 1981 ; May 1 , 1982; and September 1, 1982, on which last date the Bloomington area wage scale would reach parity with that in effect in the Peoria area. In article X, extra compensation is pro- vided to employees working on jobs outside the city of employment, including reimbursement for, "food-first year-$13, second year-$14, third year-$15." Article XXVI, entitled "Union Dues and Building Trades Dues Checkoff," requires that effective May 1 , 1982, the em- ployees' wages be increased by an additional 4 cents per hour which is to be checked off and remitted to the West Central Illinois Building and Construction Trades Council. Although it is possible from these provisions to determine that the agreement remained effective through certain times, it is not possible to determine with certain- ty when it expires. Accordingly, I fmd that the agree- ment is not one with a fixed term but rather is a contract of indefinite duration without stated provisions for termi- nation. See Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990, 993 (1958); i illiam-McWilliams Industries, 130 NLRB 223 (1961). Joe Keen delivered two copies of this final document to Riddle on or about June 1. Riddle indicated to him that he could probably live with the first year's wage provisions and that if it were a 1-year contract he would probably sign it on the spot. He apparently was disturbed by the periodically escalating wage package. He told Keen that although he would not sign it, he would try to live by whatever part he could; that he could not live by the whole thing because it would break him. Although 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Keen testified he had no discussion with Riddle on that occasion, I think his memory failed him. Riddle was very detailed in his report of the conversation and his testimo- nial version is consistent with his prehearing affidavit as revealed in his examination during the hearing. According to Riddle, he never signed either copy of the agreement that Keen delivered to him. Instead he di- rected his secretary to put them in a file where, accord- ing to him, they remained until the following September when, so he volunteered, he had them removed and sent to his attorney. If he is to be believed in this, both docu- ments would have been available at the time of this hear- ing. No one actually privy to this last transmittal of the documents testified they were sent or received, nor did counsel represent he had received them. Neither docu- ment was offered in evidence although they might have supported Riddle's testimony. Because such evidence was within the control of McLean at the time of the hearing and no explanation was offered for its nonpro- duction, I infer that the evidence, if produced, would have been unfavorable to Respondents. Pacific Grinding Wheel Co., 220 NLRB 1389, 1390 fn. 2 (1975), enfd. 572 F.2d 1343, 1348 (9th Cir. 1978); Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972). Considering the evi- dence in the record, particularly the testimony of Glenn Smith noted below, Riddle could not reasonably believe there was no need to produce the documents he indicat- ed were within his control . Cf. NLRB v. Chester Valley, Inc., 652 F.2d 263, 271 (2d Cir. 1981). Ford testified that at the end of June or the first part of July, he and Glenn Smith called on Riddle for the purpose of picking up a signed copy of the contract. Smith is the business representative of a small glazers union in Bloomington who customarily accompanies Ford in jointly calling on contractors in that area. He testified, and I find, that on that occasion Ford told Riddle they had come to pick up the contract, that Riddle handed him some papers that Ford put in his briefcase. Smith testified this was the Local 69 contract because he saw the front page , but that he did not see whether it was signed. Ford's testimony is consistent with Smith's but Ford added that when he was handed the contract he looked at it and that it was signed by Riddle. I do not rely on Ford's unsupported testimony that he verified that the contract was signed because his vacillating testimony generally , as well as his demeanor, indicates such reliance is not warranted . Ford testified further that after receiving the document from Riddle, he placed it in the files of Local 69 and that it has since disappeared. He speculates that it and the contract of an- other employer were lost in the course of moving the Local's offices. At any rate, neither Local 69 nor the General Counsel produced in evidence a collective-bar- gaining agreement signed by Riddle. Riddle denied he signed the agreement. Based on the credited testimony of Smith and considering that none of the parites produced either of the documents delivered to Riddle by Keen nor one signed by Riddle, I find that about the first of July Riddle handed to Ford one of the documents that Keen had earlier delivered to him. Whether Riddle signed the agreement, an issue on which the General Counsel has the burden of proof, I find the evidence insufficient to establish that fact. In so concluding I have considered that Keen delivered two copies of the agreement to Riddle, neither of which McLean has offered in evi- dence, that Riddle delivered one copy to Ford in the presence of Smith, that there is no reliable evidence this copy was signed, and that the General Counsel and Local 69 failed to produce a signed copy of the agree- ment or persuasive evidence that it was signed. But even if Riddle did not sign the document , McLean was a con- tracting party to the agreement because , as found below, Riddle admitted as much to Ford and Glenn Smith in early June 1982 when Ford objected to the nonunion working conditions of the Accurate crew, and he sub- stantially applied the agreement to the McLean crew from its inception in early June 1980 through September 1982. b. McLean 's adherence to the Local 69 contract The parties are in dispute regarding whether McLean adopted the Local 69 agreement. I find the agreement was sufficiently implemented so that McLean must legal- ly be considered a contracting party . From the effective date of the agreement in May 1980, McLean, following past practice, deducted union dues and permit fees from the pay of a majority of its employees in the roofing unit described above and continued doing so through Sep- tember 1982. And beginning at least in January 1981, and possibly sooner, until the end of September 1982, it con- tributed to the union roofers pension fund and the health and welfare fund for a majority of those employees. During the period May 1980 until May 1982, McLean paid all roofing employees at a rate at least as high as the scale provided in the agreement and also paid time and a half for Saturday work and double time for Sunday and holiday work. From September 1980 through September 1982, pursuant to the agreement, it provided Local 69 with a contractor's wage and welfare fund surety bond assuring payment of the agreed wages, deductions, and contributions. On at least one occasion in 1980, Riddle and Local 69 adjusted a grievance involving employee Terry Segbianao, as provided in the contract. Ford testi- fied that in 1982 he and Riddle adjusted another griev- ance on behalf of employee Clyde Decker, but I do not credit his tesitmony in view of the contradictory testimo- ny of both Riddle and Dennis Casey. As business repre- sentative of Local 69, Ford visited McLean's premises from time to time and on some of those occasions deliv- ered receipts for union payments made by McLean on behalf of employees . Ford testified without contradic- tion, and I find, that he also appointed Danny Casey, a brother of Dennis Casey, to be the Local 69 steward for all contracting employers, including McLean , in McLean and Livingston Counties . Local 69 has had no designated steward among the employees of each company as con- templated in the collective-bargaining agreement. Respondents contend that in certain respects McLean did not follow the agreement . One item to which Re- spondents point is McLean's practice respecting pay for overtime work. However, after reviewing the testimony and the provisions of the agreement, particularly articles III and XXII, it does not appear that McLean deviated MCLEAN COUNTY ROOFING 691 from the contract in this respect except that in practice time-and-a-half overtime pay for Saturday work was paid only if the employee already had worked 40 hours during that week. McLean also deviated from the agree- ment in that its regular weekly payday was Thursday in- stead of Friday, as provided in the agreement, and also with respect to contributions to the West Central Illinois Building and Construction Trades Council , which it ap- parently did not make. The collective-bargaining agree- ment also contemplates an apprentices' program and em- ployment of a fixed ratio of apprentices or helpers to journeymen roofers. These provisions were neither com- plied with by McLean nor enforced by the Union be- cause of a shortage of journeymen . Along the same line Respondents emphasize various ways in which Ford failed to administer the agreement in an effective manner. None of his inadequacies, however, go to the heart of the question of whether a collective-bargaining relationship and an understanding existed. There is noth- ing in the record indicating that Ford administered the new Local 69 agreement any differently than the old Local 130 agreement . The logical inference is that both he and the employers, including McLean, carried on the collective-bargaining relationship as they had in the past by means of a collective-bargaining agreement. Considering those aspects of the agreement that McLean honored, as well as those that were ignored, I fmd that it substantially adopted the agreement and became a contracting party. Haberman Construction Co., supra, 236 NLRB at 85-86. The testimony of Riddle, which is largely self-serving, and to which Respondent's brief points as indicating that his adherence to the agree- ment was motivated by a variety of considerations other than a desire to abide by the agreement, is immaterial. Even if credited, such testimony goes to his motivation, which is not at issue if, as I find, he applied the terms of the agreement. The objective evidence demonstrates sub- stantial adherence to, and therefore adoption of, the col- lective-bargaining agreement. This finding is buttressed by Riddle's participation in the negotiations that lead to the most recent contract and further by the fact that when Ford and Smith came to his office to pick up the signed contract, Riddle, without comment, handed a copy of the document of Ford. 3. Union-security considerations As an affirmative defense, Respondent's urge that the Local 69 collective-bargaining agreement should be set aside because it embodies unlawful union-security provi- sions not separable from the balance of the agreement. The agreement provides for various deductions to be made from the wages of employees and remitted to the local or other union-affiliated organizations and does not provide any waiting period following the start of an em- ployee's employment before such deductions commence. Respondents point particularly to articles XI and XVI of the agreement as failing to satisfy the 30 -day statutory waiting period of Section 8(a)(3), or the 7-day waiting period of Section 8(f), of the Act. Counsel for the Gen- eral Counsel takes the position, with which I agree, that the agreement does not contain union-security provi- sions. I fmd no clause in the agreement that specifically conditions employment on membership in Local 69. Ac- cordingly, I find the provisions of the agreement to which Respondents refer are not the sort of union -securi- ty provisions addressed by either Section 8(a)(3) or Sec- tion 8(f) of the Act. The pertinent portions of the con- tractual articles in question read as follows: ARTICLE XI TOOLS Contractors desiring to perform work in the Craft over which jurisdiction is claimed by Roofers Local #69 agree to employ on said work where more than one Employee is required at least fifty percent of Employees of Roofers Local #69. ARTICLE XVI UNION DUES AND BUILDING TRADES DUES CHECK OFF The Employer shall add to the negotiated base rates of pay an amount equal to the West Central Illinois Building and Construction Trades Council Check Off, as set forth below, and shall deduct same from the employees wages each week and remit same to the West Central Illinois Building and Construction Trades Council, 400 N.E. Jefferson, Peoria, Illinois 61603; together with a list of names and total hours worked of each employe from whom deductions were made. The payment and the payroll report shall be mailed to reach the office of the Council not later than fifteen (15) calendar days following the end of each calendar month. Effective May 1, 1980, 3$ per hour (Those em- ployers who previously deducted It per hour shall add 2$ per hour to the employee base rate for a total of 3$ per hour. Those employers who previ- ously did not make a deduction shall add a total of 3$ per hour). The Contractors agree to deduct initiation fees, monthly dues and hourly deduct from Helpers, Ap- prentices and Journeymen Roofers of Local #69. The Employer shall be furnished a written au- thorization from each employee which shall not be irrevocable for more than one year, or beyond the termination date of this agreement, whichever occurs sooner.2 a The emloyee authorization form for such deductions provides: ROOFERS & WATERPROOFERS LOCAL UNION NO. 69 I hereby authorize and direct my Employer to deduct from my pay, working dues, Union dues, permit money, and all other deduc- tions agreed to by Roofers & Waterproofers Local No. 69 and Peoria Area Roofing Contractors agreements . Said moneys to be paid to Funds in accordance with the terms of the bargaining agree- ment the employers and the Union. This authorization shall be irrev- ocable for a period of one year from the date hereof or until the ter- mination date of said agreement whichever occurs sooner and I agree that this authorization shall be automatically renewed and ir- Continued 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Article XX is a somewhat parallel provision dealing with health and welfare and pension fund contributions. It provides for the contracting employer to make period- ic contributions on behalf of employees in the unit to the National Roofing Industry Pension Fund and to the Indi- ana State Council of Roofers' Health and Welfare of Illi- nois, Indiana, and Kentucky. Like articles XI and XVI, article XX provides no waiting period following the hiring of an employee before the commencement of such contributions. Article XI, quoted above, could be read as requiring half of the employer's new employees to be union mem- bers immediately on their employment , and if read in that manner it would violate the Act. The language, however, is not entirely clear and could be understood as a jurisdictional requirement that when the employer hires roofers, at least half come from Local 69. There is no re- quirement that any employees who are or become mem- bers must remain members of Local 69. There appears to be a practice in the roofing industry of employees repre- sented by one local union working within the territorial jurisdiction of other locals. Article XVII of the agree- ment involved here, which article is entitled "Work Per- formed in Jurisdiction of Any Other Local Union," pro- vides for rates of pay and travel expenses when employ- ees covered by the Local 69 agreement work outside the territorial jurisdiction of Local 69. Article XVI is less ambiguous. The first two clauses require the employer to increase the employees' basic rate of pay by the amount to be deducted and remitted to the West Central Illinois Building and Construction Trades Council. Arguably, these provisions have no effect on the employees' real wages. The third clause re- quires the employer to deduct from the employees' wages initiation fees and dues but the provision appears to be limited in application to those employees who are members of Local 69. And, as noted above, there is no requirement that an employee be or remain a member of Local 69 as a condition of employment with the employ- er. Even if, pursuant to article XXI, one-half of the work force is made up of Local 69 members, union member- ship by any particular employee is not required. Nothing in the language requires that any employee become or remain a member of the Union. Article XX is merely an agreement whereby the em- ployer pays to a health and welfare fund and to a pen- sion fund contributions on behalf of each employee. Union membership is not a stated condition of coverage. Although analysis of the ambiguous clauses leaves some doubt as to legality, they are not explicitly in viola- tion of the Act but rather are ambiguous and should not thereby be found illegal. In Paragon Products Corp., 134 NLRB 662, 664 (1961), the Board pointedly quoted the Supreme Court's language in NLRB v. News Syndicate Co., 365 U.S. 695 (1961), as follows: "we will not assume that unions and employers will violate a federal law ... revocable for successive periods of one year unless revoked by writ- ten notice to you and the Union ten (10) days prior to the expiration of each one year period, or of each applicable bargaining agreement between the Employer and the Union, whichever occurs sooner. Signature Date Social Security No. against a clear command of this Act of Congress. As stated by the Court of Appeals 'In the absence of provi- sions calling explicitly for illegal conduct, the contract cannot be held illegal because it failed affirmatively to dis- claim all illegal objectives.' [Emphasis added.]" Where contract language is ambiguous, the Board looks to the intent of the parties when they draw up the contract and to their practice in operating under the contract. See Kaiser Aluminum & Chemical Corp., 98 NLRB 753 (1952); Bath Iron Works Corp., 101 NLRB 849 (1952). Here there is no evidence of the parties' intent in this regard at the time the contract was drawn up. The record does reflect that in practice Riddle checked off union dues and permit fees from the outset of the em- ployment of many, but not all, employees, and there is no evidence that these deductions were required from the employees in contravention of the statute, that is, as a condition of their employment. In sum, I find that be- cause the contract has no provisions explicitly calling for unlawful union-security arrangements, and the record fails to demonstrate that the ambiguous contractual pro- visions in fact have operated to violate Section 8(a)(3) or 8(f) of the Act, I find the Respondents have not sus- tained their affirmative defense on this issue. 4. The McLean work force The parties disagree about whether McLean employed a permanent and stable work force. The evidence relat- ing to this consists for the most part of McLean payroll records for 1982, its health and welfare contribution records from Janaury 1981 through September 1982, and its pension contribution records from December 1980 through October 1982. These are not entirely satisfactory because the health and welfare and the pension records do not necessarily reflect the precise size of the work force, and the payroll records do not include 1981 and those for 1982 which are in evidence are incomplete.3 Nevertheless, payroll and contribution records together give a valid month-by-month picture of the 1982 roofing crew and a fair approximation of crew makeup in 1981. Over the course of a year, and considering employee turnover and fluctuation in crew size , the total number of roofers employed was modest. During 1981 McLean paid union fringe benefits for only 26 individuals. Com- pany records show employment of 30 roofers during 1982. Certain seasonal fluctuations are apparent, employ- ment being lowest in winter. Thus, fringe contributions were made for four, five, and seven roofers in December 1980 and January and February 1981 , respectively, and for three in December 1981 . The records show seven, nine, and five roofers in January, February, and March 1982, respectively. By contrast, fringe contributions were made for 17 in June 1981, the highest month that year. A nonseasonably induced increase developed in late August 1982 when McLean obtained two large contracts and the crew increased from 6 to 10, then to 16 in September and October, and then dropped to 12 in November and a The 1982 payroll records for three employees, Eric Niepagen, Stan- ley Shelton, and Tim Hardin, are not included in the records offered in evidence. MCLEAN COUNTY ROOFING to 10 in December. Monthly employment of roofers averaged at least 9 in 1981 and about 10 in 1982 . During 1982 total employment by month numbered 7 in January, 9 in February, 5 in March, 12 in April, 8 in May and June, 6 in July, 10 in August, 16 in September and Octo- ber, 12 in November, and 10 in December. Thus, through July, and with the exception of April, the monthly total remained fairly constant . In late August it began to increase and remained larger for the balance of the year. Despite fluctuation in crew size , a core of the same roofers was employed with substantial regularity on suc- cessive jobs. Until he became a supervisor in May 1982, Dennis Casey was a regular crewmember as well as crew foreman and thereafter, as a supervisor, he contin- ued as crew foreman. Tom Howell was a regular throughout 1981 and 1982 and ultimately became crew foreman. Tim Hardin was a regular through all 1981 and until October 1982. Ed Seth was a regular from April through September 1981 and for much of 1982. Robert Godbey was a regular through September 1981 . Steven Stalter was a regular for most of the year from May 1981 through April 1982. In 1982 Greg Riddle worked regularly from June through October, and again in De- cember. Michael Riddle worked in each month from May through December 1982.4 Dale McCumsey worked regularly for 4 months in mid-1982. Richard Black Sr., Ed Casey, David Graves, Wesley Jeakins, and Bobby Sylvester all worked regularly from late August through December 1982, the last month for which evidence was offered. The record reveals a pattern of a partially evolv- ing but regular core of 4 to 5 roofers throughout 1981 and until late August 1982 when the core enlarged to about 8 or 10 for the balance of the year. Thus, the crew, although experiencing some evolution, was also characterized by substantial continuity in identity of per- sons employed. It is clear from the record as a whole that employees in the bargaining unit did not work , nor were they paid, unless there was work to do. The work available for the most part consisted of onsite roofing work, an aspect of the construction industry . Many of these projects are rel- atively small. Some are repair and maintenance jobs rather than new construction or replacement. The testi- mony and McLean's records indicate that, although the roofers are employed on an as-needed basis, that need frequently carriers over from job to job . Roofers are hired on an indefinite basis for as long as work remains available. These circumstances demonstrate permanence and stability in the work force, as those terms are under- stood by the Board and the courts . See Precision Striping, 245 NLRB 169 (1979); Land Equipment, 248 NLRB 685 fn. 2 (1980), enfd. 649 F.2d 868 (9th Cir. 1989); Habeman Underground Construction, 253 NLRB 60 (1980); Pacific Erectors, 256 NLRB 421 (1981), enfd. 718 F.2d 1459 (9th Cit. 1983); Redland Construction Co., 265 NLRB 586 (1982). On somewhat similar facts the Board reached the opposite conclusion in Giordano Construction Co., 256 4 Greg and Michael Riddle, being sons of the company owner, were not employees under the Act but their presence on the crew demon- strates the continuity of the work force. 693 NLRB 47 (1981). But the circumstances in that case differ in that that employer's jobs were few in number, of long duration, and with substantial hiatuses between. A substantial number of those employees did not carry over from job to job as do the crewmembers of McLean where the jobs typically are smaller and of shorter dura- tion and the hiatuses between these jobs appear shorter. McLean has a greater measure of continuity in its work force than Giordano because of its core crew, the rela- tively small total number of employees over a year's time, and the absence of long hiatuses in the workflow. A result opposite to that reached in Precision Striping also was reached by the Ninth Circuit in Construction Erectors v. NLRB, 661 F.2d 801, 804 (1981), in which a larger number of employees was involved, a total of 62 having been referred for work over about a year's period, and where the record did not indicate continuity of personnel beyond the first 6 or 7 weeks of the year under consider- ation. Although the issue in the present matter is not free from doubt, particularly in view of McLean's reliance on new hires during seasonal upswings in business and the big increase in the latter part of 1982, its situation ap- pears more akin to Precision Striping and its progeny than to Giordano or Construction Erectors. Accordingly, I find that McLean employs a permanent and stable work force within the meaning of Board standards. 5. Union majority status During the life of Local 130 contracts, as noted above, McLean deducted union dues and permit fees for a ma- jority of its employees covered by those contracts and remitted those funds to Local 130 and later to Local 69. McLean continued this practice under the Local 69 agreement from the beginning of May 1980 until the end of September 1982. McLean's records show that during 1982 these deductions were made in January for 4 of its 7 roofers, in February for 6 of it 9 roofers, in March for 4 of its 5 roofers, in April for 11 of its 12 roofers, in May for 7 of its 8 roofers, in June for 6 of its 8 roofers, in July for 4 of its 6 roofers, in August for 8 of its 10 roof- ers, and in September for 12 of its 16 roofers. In October it had 16 roofers but only deducted dues and permit fees for 2. In November it had 12 roofers and in December 10 but deducted no union dues or permit fees for any in either month. It is apparent from this history that for an unbroken period of about 5-1/2 years Local 130 and its successor Local 69 enjoyed the financial support of a majority of McLean employees. Haberman Construction Co., 236 NLRB (1978), enfd. 518 F.2d 288 (5th Cir. 1980), modified 641 F.2d 351 (5th Cir. 1981); VM Con- struction Co., 241 NLRB 584 (1979); Land Equipment, supra; Trowel Trades Employees v H DeAngelis & Son, 562 F.Supp. 847, 849 (D.C.S.D.Fla. 1983). In these cir- cumstances, the status of Local 69 as the representative of McLean employees was governed by Section 9(a) of the Act, rather than by Section 8(f) as urged by Re- spondents, and it was entitled to recognition as the repre- sentative of the roofing crew on that basis. Haberman Construction, supra; VM Construction, supra. 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Relationship of Accurate to McLean About April 1, 1982, David Riddle and Dennis Casey, foreman of the McLean work crew, formed the partner- ship called Accurate Roofing Company for the purpose of engaging in the roofing business on a nonunion basis. Although requested by Local 69, Accurate has refused to recognize it as the representative of its employees and has not adhered to the terms of the Local 69 collective- bargaining agreement for roofers in the Bloomington area. All capital for Accurate has been provided by Riddle. He initially contributed $2000 and by the time of the hearing had loaned an additional $12,000 although the partnership agreement provides that additional capital will be provided equally by the partners. The partnership agreement names Riddle as general manager with re- sponsibility for all machinery, equipment, leased facili- ties, any other leasing, purchasing or procuring, and all bookkeeping and gives him responsibility for the partner- ship bank accounts, including the writing of checks. Dennis Casey is named assistant general manager and op- erating manager in charge of roofing activities and the supervision of employees. McLean's offices and warehouse are in a building owned by Riddle, the only sign on the building read "McLean County Roofing." Accurate's rented office is in the same building but in a separate room. Its ware- house is located across the street in premises rented by it from a third party. McLean employs two office secretaries. Accurate em- ploys one. The two companies share a telephone system in which two separate lines, one for each company, come into the same telephone with extensions in each office. This allows any of the secretaries to answer the telephone for either company. Accurate's telephone also has an extension in Dennis Casey's home where his wife normally answers for Accurate in the absence from the office of Accurate's secretary. Whether the office secre- taries work jointly in any other respect does not affirma- tively appear in the record, but in testifying, Riddle named the same person as his own secretary and the sec- retary for Accurate. The two companies have different mailing addresses, McLean using a post office box and Accurate a rural route address. Riddle is the only person authorized to sign checks for both firms but a secretary for McLean also is authorized to write McLean checks and the Accurate secretary also is authorized to write Accurate checks. McLean maintains an inventory of roofing supplies and materials for its own use and for sale to Accurate. Accurate purchases most of its supplies from McLean and maintains only a small inventory for its own use. Ac- curate does not own any equipment. It uses a truck owned by Dennis Casey personally and any additional equipment needed for roofing jobs is leased from McLean. Both companies engaged in the same type of business, namely, commercial and residential roofing. They differ in that McLean does a greater volume of business and the jobs for which Accurate contracts are generally smaller. Up to the time of the hearing they had not served the same customers. Respecting control of labor relations, the record as a whole shows that Riddle has the ultimate control for McLean and also executes most of those responsibilities. He is the one who historically negotiated and contracted with the Unions. He does almost all the notifying of roofing employees regarding when they are to report for work and he apparently hires all new employees for McLean. In performance of the work on the job, on the other hand, Dennis Casey in general directs the employ- ees. I find he can effectively recommend the hiring, firing, or disciplining of McLean employees. I infer that at the end of a day's work he indicates to crewmembers whether they are to report the next workday. I further find that on occasion he contacts roofers to come into work for McLean. Casey does not about the same thing for Accurate as he does for McLean. He testified he does all the hiring for Accurate. But this really appears to be an assigning of McLean crewmembers to Accurate jobs when they have been informed in most instances to come into work by Riddle, or Casey knows they will be available because a McLean job is coming to an end and he has them available for work on Accurate jobs. Casey's testimony in this respect suggests that the infre- quent and smaller Accurate jobs are meshed in schedule wise with the larger and more frequent McLean jobs. That conclusion fits with the relative size and impor- tance of the two operations, with Casey's function as the job supervisor for both, and with the repeated use of regular McLean crewmen on Accurate jobs. Riddle testified he never calls employees into work for Accurate and has nothing whatever to do with those em- ployees. I do not credit these categorical statements. Other credible testimony, notably that of Dale McCum- sey, demonstrates that Riddle involves himself in Accu- rate employee relations. Thus, McCumsey, a regular em- ployee of McLean, was invariably called by Riddle to report for work. The work he performed included jobs for McLean as well as seven jobs for Accurate. On one occasion McCumsey spent time on an Accurate job working for estimator Ted Tice, who did the estimating for both Accurate and McLean, but at Riddle's request McCumsey was paid by McLean as if he worked for McLean. In fact the roofers who work for Accurate are the regular McLean crew. The testimony, the payroll, and other records indicate that virtually all roofers used by Accurate are also used by McLean on a regular basis. Thus, during 1982 Accurate employed a total of nine roofers, all of whom at one time or another were mem- bers of the McLean crew. The hours each worked for McLean and Accurate from May through October are as follows: MCLEAN COUNTY ROOFING May 82 June 82 McL Acc McL J. Crow ................................................. T. Hardin .............................................. 50 43 67 T. Howell ............................................. 26.5 20 D. McCumsey ...................................... 57 18 57 R. McDonald ....................................... 16 19 G. Riddle .............................................. 30 M. Riddle.............................................. 19 E. Seth .................................................. 101.5 44.5 63 R. Sylvester .......................................... 0 17 20 34 25 0 45 53 33.5 12 33 62 0 41 40 4 115 4 July 82 Aug. 82 Sept 82 Oct 82 McL Acc McL Acc McL Acc McL Acc Acc 10 33 42 64 36 16.5 50 67 39.5 7 31 44 36 36 30 23 42.5 1 Crow previously worked for McLean in March and April 1982. Except for the one instance with the estimator , referred to by McCumsey, the roofers have been paid for the work performed for McLean by a McLean check and for work performed for Accurate by an Accurate check. Their rates of pay, however, differ in that until at least the end of September 1982 work for McLean was paid at the Local 69 wage rate or better, and contributions for union fringe benefits were paid for a majority of the crew. By contrast, work for Accurate was paid for at a lesser rate and no contributions were made for fringe benefits. As already noted, Accurate leased all roofing equip- ment from McLean with the exception of the personal truck of Dennis Casey. As a result, the roofers work on Accurate jobs with the same equipment as when they work on McLean jobs. On some occasions McLean trucks were used on Accurate jobs although the name "McLean Roofing" appeared on the side . On at least one occasion a magnetic sign with the name Accurate was placed over the McLean name. In two other regards there is commonality in employment with McLean and Accurate. At the premises of McLean and of Accurate, roofers use the same break area and same washroom irre- spective of which company they are working for. Final- ly, there appeared to be no difference in the work they perform for either company, each roofer, whether jour- neyman apprentice, or helper, performing the same kind of work under the same supervision. C. The Single Employer and Alter Ego Issues 1. Single employer The General Counsel and Local 69 contend that McLean and Accurate are a single employer for pur- poses of collective bargaining. The standards for deter- mining whether two enterprises are a single employer were described by the Supreme Court in Radio Union Local 1264 v. NLRB, 380 U.S. 255 (1965), in the follow- ing language: The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership. In the present matter the operations of McLean and Ac- curate are interrelated . Although McLean is a larger op- 695 40 15 eration than Accurate, neither is a large business and little separates top management from the rank and file in either company. Both are engaged in the same kind of business, in the same market, and from approximately the same location, their separate offices being in the same building owned by McLean and their separate yards being across the street from each other. They have sepa- rate telephone service but common equipment and it is possible for the office personnel of one company to answer the telephone of the other. McLean, solely owned by Riddle, is managed almost entirely by him with the assistance of a couple of office employees, an estimator, and Dennis Casey as his super- visor of field operations. Riddle's overall management of McLean includes financial control and control of labor relations. Dennis Casey also is involved in labor relations in directing the McLean crew, and on some occasions in calling crewmembers to work, or in informing them whether they will continue to work, be laid off, or be re- called. With Accurate, Riddle is more remotely involved in day-to-day management than Dennis Casey, who as a partner carries a greater managerial responsibility than he does with McLean where he is only a supervisor. Even so, Riddle is significantly involved in the manage- ment of Accurate. Under the partnership agreement he has complete financial control and has provided all the working capital. Although under the agreement Dennis Casey is in charge of operations and presumably of labor relations, Riddle also has involved himself in crew selec- tion by contacting crewmembers to work on Accurate jobs. Both men joined in the partnership with the inten- tion that it be nonunion, thus together setting this under- lying labor relations policy. Interrelation of the oper- ations, centralized control of labor relations, and common management are also indicated in the inter- change of crewmembers between the two companies and the fact that virtually all roofers working for Accurate also work for McLean. Significant points of interrelation are the facts that Dennis Casey manages field operations for both concerns and that McLean provides most of the supplies and, with the exception of Casey's own truck all the equipment for both, although Accurate pays for the supplies and rental of the equipement. It is these supplies and equipment with which the crews of both McLean and Accurate work. Both companies also use the same estimator. 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although Dennis Casey has no proprietary interest in McLean, common ownership exists in the person of Riddle as the sole owner of McLean and one -half-owner- ship interest in Accurate and also involve him in the management of Accurate. In these circumstances I find McLean and Accurate are a single employer . The facts demonstrate the "pres- ence of a very substantial qualitative degree of central- ized control labor relations," and "evidence a substantial qualitative degree of interrelation of operations and common management-one that . . . would not be found in the arm's length relationship existing among uninte- grated companies." Operating Engineers Local 627 Y. NLRB, 518 F.2d 1040, 1046-1047 (D.C. Cir. 1975). See also NLRB v. Campbell-Harris Electric, 719 F.2d 292 (8th Cir. 1983). 2. Alter ego The General Counsel contends further that Accurate was created to subvert the collective-bargaining relation- ship with Local 69 and is legally the alter ego of McLean. Although alter ego questions more frequently arise in situations where one enterprise succeeds another (see Crawford Door Sales Co., 226 NLRB 1144 (1976)), the issue may also arise with parallel contemporaneous enterprises as in the present case (see Don Burgess Con- struction Corp., 227 NLRB 765 (1977)). In resolving alter ego issues the Board applies single employer criteria and further examines whether one enterprise operates to cir- cumvent and evade collective-bargaining obligations of the other. The Fifth Circuit states this additional consid- eration in Carpenters Local 1846 v. Pratt-Farnsworth, 690 F.2d 489, 508 (5th Cir. 1982): However, the focus of the alter ego doctrine, unlike that of the single employer doctrine, is on the exist- ence of a disguised continuance or an attempt to avoid the obligations of a collective-bargaining agreement through a sham transaction or technical change in operations. E.g., Amalgamated Meat Cut- ters v. NLRB, 663 F.2d 223, 227 (D.C. Cir. 1980). In the present matter McLean and Accurate are suffi- ciently interrelated so that an arm's length relationship does not exist between them. Rather, there is substantial unity of operation inseparable from the persons of Riddle and Casey, with one set of employees performing the same type of work on a regular basis for two employers which, as their employers, are virtually indistinguishable from each other. The crewmembers have the same com- munity of interest respecting their employment whether working on a McLean or an Accurate job. In these cir- cumstances, for purposes of collective bargaining within the meaning of Section 9(b) of the Act, the crew of both companies together constitute an appropriate collective- bargaining unit described as follows: All full-time and regular part-time journeymen roof- ers, helpers, and apprentices employed by McLean County Roofing or Accurate Roofing Company at their Bloomington, Illinois, facilities and their vari- ous jobsites; but excluding professional employees, office clericals, guards and supervisors as defined in the Act, and all other employees. When Accurate began business in May 1982 using six McLean roofers, no effort was made by management to contact Local 69 respecting its operation and the provi- sions of the Local 69 contract were not applied about the work the crewmen did for Accurate. It was late May before Business Representative Ford learned of the exist- ence of Accurate when Danny Casey, the Local 69 stew- ard for the Bloomington area, told him Riddle had opened a nonunion operation. About the same time Ac- curate ran a newspaper advertisement in the McLean County newspaper announcing its business. In early June, Ford accompanied by Glenn Smith called on Riddle at his office in McLean Roofing for the purpose of discussing this new operation. Riddle told Ford then that Accurate was his nonunion company. Ford in- formed him his actions were in violation of the agree- ment with Local 69. But Riddle took the position that his attorneys had helped him plan the new operation and everything was legal. He declared that Accurate would not abide by the terms of the Local 69 agreement. Ac- cording to Smith, whom I credit, Ford said he was going to have to do something about it, and Riddle re- sponded that if Ford felt that way, maybe he should just tear up his existing contract with the Local and go non- union with both shops. Following this meeting, Ford took a wait-and-see attitude, instructing Steward Danny Casey to keep an eye on things. In late July roofers Dale McCumsey and Ed Seth, who had been working for both McLean and Accurate, complained to Ford about being paid less than the union wage rate for straight time and not being paid time and a half for Saturdays or double time for Sundays, as provid- ed in the collective-bargaining agreement. As a result of these complaints Local 69's attorney, Patricia Benassi, sent Riddle a letter on July 27 setting forth the Union's position that the collective-bargaining agreement applied to Accurate operations and that its employees should be paid in accordance with those terms. She requested bar- gaining with Local 69 regarding the matter. That same day Local 69 filed the initial unfair labor practice charges here against McLean and Accurate. Considering the close relationship that makes McLean and Accurate a single employer, evidenced particularly by their use of the same roofing employees working on the same equipment and supplies under the same supervi- sion by Dennis Casey, and the shared responsibility for work assignments in the two operations by Riddle and Casey, I fmd that crewmembers were performing bar- gaining unit work when working for either Accurate or McLean. Considering also that Accurate began oper- ations during the week ending May 12, 1982, with the employment of Tim Hardin and Tom Howell under non- union conditions and without consulting Local 69, as well as Riddle's declaration to Ford and Smith in early June that Accurate was his nonunion operation, and his prophetic threat, in the face of Ford's objections, that McLean might go nonunion as well, I fmd that Riddle and Casey shifted bargaining unit work to Accurate with the purpose of avoiding the Local 69 contract terms, MCLEAN COUNTY ROOFING which were applicable to such work if performed by McLean employees. Thus, for labor relations purposes Accurate is the alter ego of McLean. The shifting of unit work to evade contractual and bargaining obligations violated Section 8(a)(5) and (1) of the Act. Edward J. White, Inc., 237 NLRB 1020, 1026 (1978); see also Denzil S. Alkire, 259 NLRB 1323 (1982); Land Equipment, 248 NLRB 685, 688 (1980); Al Bryant, Inc., 260 NLRB 128, 141 (1982); Nabco Corp., 266 NLRB 687 (1983); American Pacific Concrete Pipe Co., 262 NLRB 1223, 1226 (1982); All Kind Quilting, 266 NLRB 1186 fn. 4 (1983); cf. Shell- maker, 265 NLRB 749 (1982); Longshoremen ILA (Rukert Terminals), 266 NLRB 846 (1983). D. Nonunion Terms as a Condition of Employment with Accurate It is admitted that sometime in April or May 1982, Dennis Casey informed the crewmembers who would be working on Accurate jobs that they would have to be nonunion to work for Accurate Roofing . That statement, given the circumstances found above, violated Section 8(a)(1) of the Act. Mueller Insulation Co., 263 NLRB 757, 759-760, 766 (1982). E. McLean's Withdrawal of Recognition 1. The nature of the withdrawal Local 69's Business Representative Ford, in the first few days of October 1982, called on Riddle to talk about union relations with McLean. Riddle refused to discuss such matters without first obtaining permission from his attorney. Ford then spoke with an attorney for Riddle named Semmler who told him that as long as the Union's unfair labor practice charges were pending with the Board, Riddle would not talk with union representa- tives.a As a result, Ford consulted Union Attorney Patri- cia Benassi who on October 7 telephoned Respondents' attorney Reed Roesler. She inquired of Roesler about the identity of Semmler, who was unknown to her. Roesler informed her that although Semmler was an attorney for Riddle, Roesler's firm was handling labor relations. Ben- assi further inquired whether the information Ford had received from Semniler was the position of McLean, and Roesler confirmed that that was McLean's position, and that Mclean was withdrawing recognition from Local 69 and would not bargain with it. Thus, McLean also with- drew from and abrogated its contract with Local 69. Roesler stated the Union no longer represented a majori- ty of the employees. This was the first occasion on which Respondents asserted the Union lacked majority status among the employees. Such a defense must be evaluated as of October 7, 1982, the time of withdrawal of recognition based on that assertion. Bartenders Assn., 213 NLRB 651 (1974). Since then McLean has persisted in that position. At no time has Accurate recognized or bargained with Local 69 nor has it retreated from Rid- dle's initial position taken months earlier that Local 69 enjoys no status as a representative of Accurate employ- ees. f At that point the charges and the complaint were outstanding in Case 33-CA-6083. 697 McLean implemented its withdrawal of recognition retroactive by ceasing to remit to the Union or to union funds, effective October 1, 1982, those deductions of union dues, permit fees, health and welfare funds contri- butions, and pension fund contributions which until then it had routinely made. A number of employees from whose paychecks union dues or permit fees deductions had been made after October 1, and for whom health and welfare contributions had been noted on company books, which deductions and contributions were not re- mitted to the Union, or to union funds , subseqenetly re- ceived checks from McLean for these amounts. Thereaf- ter these deductions and contributions were not made but instead were included in the regular paychecks of employees, thus raising their wages. This was, of course, at variance with the terms of the collective-bargaining agreement that contemplated that these amounts be re- mitted to the Union or union funds. The Union had no specific notice or opportunity to bargain about these changes. The General Counsel and the Union contend that McLean's withdrawal of recognition and cessation of bargaining with Local 69, the cessation of payroll deduc- tions and fund contributions, and the resultant inclusion of those amounts in the weekly paychecks of employees were unfair labor practices prohibited by Section 8(axl) and (5) of the Act. Respondents contend that unfair labor practices were not involved because , based on ob- jective considerations, Riddle had a good-faith doubt that Local 69 represented a majority of McLean employ- ees and McLean had no further duty to recognize Local 69. This is a possible defense because the collective-bar- gaining agreement, being of indefinite duration, would not bar a competing union from filing a representation petition with the Board thereby raising a question con- cerning representation. Pacific Coast Assn. of Pulp & Paper Mfrs., 121 NLRB 990, 993 (1958). Thus, there is no extant contract term during which the Board will con- clusively presume that the majority status of Local 69 continues unimpaired. In this respect this case differs from those where the employer could not unlawfully withdraw recognition of a union so long as a valid elec- tion petition could not be timely filed. See Quad C Corp., 246 NLRB 463, 467 (1979); Shamrock Dairy, 119 NLRB 998, 1002 (1957), and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cir. 1960), cert. denied 364 U.S. 892 (1960); Hexton Furniture Co., 111 NLRB 342, 344 ( 1955). The present situation is more analogus to those cases where an employer, before expiration of a contract term, makes an "anticipatory withdrawal of recognition" in re- lation to a future contract. Such a withdrawal is lawful if on the date of withdrawal the union in fact has lost its majority status or a reasonable doubt, based on objective considerations, exists as to its majority status, and provid- ed the withdrawal is untained by unfair labor pratices. The presumption of continued majority status is thus re- buttable. See Abbey Medical/Abbey Rents, 264 NLRB 969 (1982); Cutten Supermarket, 220 NLRB 507 (1975); Ter- rell Machine Co., 173 NLRB 1480 (1969). Accordingly, the crucial issues here are (a) whether the withdrawal of recognition was founded on a reasonable doubt of Local 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 69's majority status in the light of objective consider- ations, and (b) whether the withdrawal was tainted by unfair labor practices. 2. Objective considerations about majority status of Local 69 Richard Black Sr. went to work for McLean as a roofer during the weekly pay period ending Thursday, August 26, 1982. When he received his first paycheck and realized that health and welfare contributions and union permit fees had been deducted from his wages, he complained to both Dennis Casey and Riddle. According to Black, he told Riddle, "Dave, I don't want to belong to this union . . . . I'm not paying $100 a week out of my check for some idiot to run around in a Cadillac when I drive a Vega . . . . I don't want to belong to the union. I'm not planning on retiring in Illinois and I'm too damn old to stay here for 10 or 15 years to get retire- ment from the union; and to me, it's no benefits . . . . After his second paycheck on September 9 the deduc- tions were discontinued, no payments were made to the Union for Black Sr., and the difference was reflected in his subsequent paychecks. This change was unilateral with no notice to Local 69 or opportunity for it to bar- gain regarding it. Riddle testified that in September and early October he had comments from a number of crewmembers indi- cating their objections to the union deductions from their paychecks. He reacted by informing them he wanted their position in writing and for that purpose he made available to them Xeroxed copies of the form of card supplied to McLean by Local 69 for authorizing union deductions and contributions. Thus, on October 1, 1982, in the room at McLean's facility used by the crew, Riddle handed Black Sr. one of these cards, saying to him, "Here, do you want to join the union or not. It's up to you to write on here whether you do or not." Black wrote on the card, "I don't want to join the union." He signed the card, dated it, and handed it back to Riddle. About 2 weeks later, October 15, after withdrawal of recognition from the Union, he received an unsolicited raise in pay. Richard Malcome began working for McLean in the week ending September 9, 1982, and continued until Oc- tober 8, the second payday in October. Deductions were made from his pay to cover union permit fees and health and welfare contributions even though at the time Riddle hired him, and on occasion thereafter during his employ- ment, he indicated his preference that such deductions not be made. His testimony indicates that his reason for this preference was that in the past he had been in and out of a number of unions, had had an unsatisfactory ex- perience with the Laborers Union, that he was not a roofer by trade and expected his employment with McLean to be temporary, that he did not think it likely he would attain journeyman status in the roofers' trade, and that in the circumstances he did not think Local 69 would benefit him. When he was hired he told Riddle he was not a strong unionman . He first objected to the de- ductions when he received his first paycheck on Septem- ber 9. On October 7 he went into McLean's office and asked for one of the form cards for authorizing union de- ductions. He signed it, noted on the card, "No, I do not want dues withheld," and returned the card to the office secretary. However, Malcome's last day of work for McLean was October 6 and he did not work thereafter although the pay period did not end until October 8. It appears from his testimony that he signed the card in order to receive a partial refund of deductions already made because he considered himself a temporary em- ployee and not a regular roofer. Riddle testified that Malcome had indicated to him that he was concerned, saying that he had never been a unionman and wanted to. know whether Riddle would let him work if he did not authorize union withholdings from his check. This does not square with Malcome's testimony that he had been in and out of the Laborers Union several times as well as other unions. I credit the account of Malcome who was the less interested witness. David N. Riddle is Riddle's nephew and normally works for his own father who operates a small nonunion roofing firm. In September 1982, however, they had no work and he came to work for his uncle at McLean during the week ending September 16. He stayed less than 6 weeks. On September 15, a day or two after he began working, his uncle gave him a Xeroxed copy of a blank card for authorizing dues and other union deduc- tions, and told him he could fill it out either to be a union member, or not to be in the Union, that it would not affect his employment with McLean in either case; and to fill it out however he wanted and in his own words if he did not want to be in the Union. According to the nephew, he did just that, writing on the card, "I don't want to be in the Union." He then returned the card to his uncle. Although David Riddle, the nephew, was not asked if he made any oral statement to his uncle indicating his preference, his uncle testified that the nephew expressed himself verbally on the matter in the latter part of Sep- tember in the presence of Dennis Casey, Ed Casey, and possibly several other crewmembers. None of these other persons were asked, or testified about statements by the nephew, but his uncle quoted him as saying, "I don't want nothing to do with the Union or Charlie Ford be- cause I've already had some dealings. My dad threw him off the roof once." I credit this uncontradicted testimo- ny. This statement apparently occurred subsequent to the card signing . It seems to me that his nephew's nonunion disposition must have been known to David Riddle, the uncle, before he hired him, and further that he must have realized his nephew would only temporarily be with McLean, as proved to be the case, because the nephew's permanent employment was with his father. Throughout his employment with McLean, the Company made no union deductions from his pay, remitted nothing to the Union on his behalf, and increased his paycheck accord- ingly. This was done without notice to Local 69 or op- portunity for it to bargain on the matter. John Glasscock became a roofer with McLean in the week ending September 23, 1982. The record indicates he was already working on September 17 and, according to his uncontradicted testimony, he had told Riddle prior to then that he did not want to be in the Union and MCLEAN COUNTY ROOFING 699 Riddle should not hold anything out of his paycheck. On September 17, Riddle called him into the office after work, handed him a Xeroxed copy of the form for au- thorizing union deductions, saying as he did so that he wanted to know whether Glasscock wanted to join the Union. Glasscock signed the card, dated it September 17, 1982, and wrote on it the following, "Don't want held out," and returned the card to Riddle. Beginning with his first paycheck on September 23 no union deductions were made, nor any sums remitted to the Union on his behalf, nor was any notice or opportunity given to Local 69 to bargain about it. Richard Dailey went to work for McLean in the week ending September 16, 1982. No deductions for health and welfare and union permit fees or dues were made from his paycheck for that week but they were from his check at the end of the second week on September 23. He then, according to Riddle, asked, "If I don't permit you to hold out permit money, can I work?" Riddle replied he could. Dailey then told him, "Well, then, don't hold it out." Company records show that starting October 1 nei- ther permit fees nor health and welfare contributions were deducted from Dailey's paychecks. No payments were made to the Union on his behalf, nor was any notice or opportunity given to Local 69 to bargain on the matter. Wesley Jeakins started working for McLean in the week ending August 26, 1982, and union permit fees and contributions for health and welfare were deducted from his first four paychecks. Chris Akins began working during the week ending September 16, but no union de- ductions were made from his paychecks. Sometime in September at a time when Akins and Jeakins were in the office together, Riddle either informed Akins that union dues would be withheld from his paycheck or inquired of him whether he authorized such withholding . Jeakins then interjected, "Hey, man, you don't want nothing to do with no union. Especially that one," or words to that effect, and Akins responded, "Yeah, that's right." Re- spondents contend that it was obvious to Riddle that nei- ther employee wished to be associated with the Union. The last withholding of union deductions from Jeakins' paychecks was made with the pay period ending Sep- tember 16 and did not thereafter resume . Union deduc- tions for Akins never commenced. No sums were paid to the Union on Akins' behalf, nor on Jeakins' behalf after September 16, nor was Local 69 given notice or oppor- tunity to bargain respecting these matters. Robert Sylvester joined the McLean crew in the week ending August 26, 1982, becoming a permanent member of the crew. Union dues and health and welfare contri- butions were deducted from his pay from the beginning of his employment through the pay period ending Octo- ber 8. According to Riddle, he had heard during Sep- tember and early October comments by a number of em- ployees indicating objection to the union deductions. He recalled Sylvester saying he did not want a penny of his money going to the Union . As already noted, Riddle made available to crewmembers the union form for au- thorizing deductions. He handed some to individuals em- ployees and also placed a supply in what is referred to as the crew shack where the roofers congregate before and after work. On October 7 in the crew shack Riddle told Sylvester to read one of these cards , fill it out, and sign it if he wanted to. Sylvester dated and signed the card entered thereon, "I do not wish to be part of Roofers Local 69." He then delivered the card to Riddle. There- after he received a refund of the union deductions al- ready made for the first 2 weeks of October. Ed Casey, one of several brothers of Dennis Casey, also started working for McLean in the pay period ending August 26, 1982. Deductions for the union permit fees and health and welfare contributions were made from his paycheck for that period and for subsequent pay periods through October 8 . Sometime in late September or early October, during a period when McLean was en- gaged on a roofing job for Eagle's Grocery Store, a site rumored to be the target for a Local 69 picket line, ac- cording to Dennis Casey, he told the crew one morning as they started for the job, "Boys, there's supposed to be a picket on the job this morning . If any of you guys want to be union members, you had better not go." Ap- parently on the same occasion Riddle made a similar statement to the crew. Nevertheless, they all got in the truck indicating they wanted to work and were not wor- ried about the Union. Ed Casey testified that on this oc- casion he declared in no uncertain terms his dislike for the Union as well as for Danny Casey, another of his brothers who was the Local 69 steward . Subsequently, on October 7 Riddle handed Ed Casey the form for au- thorization of union deductions, telling him he should in- dicate on it whether he wanted deductions made. Ed Casey signed the card, dated it October 7, 1982, and added the words, "No, I do not." He subsequently re- quested, and received, a refund of union deductions pre- viously made from his pay for the periods ending Octo- ber 1 and 8. David Graves also went to work for McLean during the week ending August 26, 1982, at a time when he had been laid off from other employment. He was a longtime member of other unions, being a member of the Rubber Workers for 4 years and the Railroad Carmen for 7 years, but had become disenchanted with them because of layoffs from other jobs. He had worked for McLean 3 years earlier and permit fees and health and welfare con- tributions automatically had been deducted from his pay at that time. When he went to work for McLean in August 1982, the same thing occurred and the deduc- tions continued through the week ending October 8. According to Riddle, on the morning referred to above when it was expected there might be a Local 69 picket line at the Eagle's supermarket job, Graves was the first to indicate his willingness to work under those conditions when he ran to the truck saying that he had belonged to two or three unions that had not done him any good and he did not suppose this one would either. Although Graves denied generally he ever told Riddle how he felt about the Union, he did not specifically con- tradict the detailed description of the incident as given by Riddle and I credit Riddle's account. In early October Riddle handed Graves a Xeroxed copy of the form for authorizing union deductions, in- structing him to read it and fill out what he thoought, if 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he wanted to have the money deducted or not. Graves asked him whether his election would affect his job and Riddle replied it would not. Graves read the card, dated it, signed it, and wrote on the card, "I don't want any dues taken out of my check." He then laid the card on the office desk. The date entered on the card, which is the only evidence respecting the date Graves executed it, is October 8, 1982, the day after Respondent withdrew recognition from Local 69. Graves' testimony generally, and specifically respecting his reasons for executing the card as he did, indicates that he was in need of money because of his layoff from other employment and that was the reason he did not want the deduction of permit fees to continue. His testimony also indicates, as does the card he executed, that he believed his election to discon- tinue deductions applied only to the permit fees and not to health and welfare contributions, which he believed were still continuing at the time of the hearing. Compa- ny records, on the other hand, indicate that deductions for both health and welfare and permit fees made for the first 2 weeks in October were refunded to him and that after October 8 no further deductions in either category were made. Whether Graves was accurate or inaccurate respecting what contributions were discontinued, his tes- timony and the legend he wrote on the dues-deduction form indicate that his intent was to continue the health and welfare deductions and to discontinue the permit fees, thus continuing to benefit from Local 69's represen- tation but not paying for such in the form of permit fees. This does not indicate a desire to end representation by Local 69. See Randle-Eastern Ambulance Service, 230 NLRB 542, 552 (1977). In any case, his intentions, in executing the card, are irrelevant on the question of good-faith doubt because the card was executed after withdrawal of recognition from Local 69. Objective evi- dence to support a good-faith doubt of majority support for a union, in order to be considered, must be known to the employer at the time of its withdrawal of recogni- tion. Orion Corp v. NLRB, 515 F.2d 81 (7th Cir. 1975); B & B Gallo Pest Control Services, 265 NLRB 535 (1982). Richard Black Jr., son of Richard Black Sr., started with McLean in the week ending September 23, 1982. The Blacks reside in Iowa, but when working for McLean, temporarily reside in a motel in Bloomington, Illinois. On October 1, the younger Black, a helper, left work in midafternoon and went to their motel. At the end of the workday his father came to the motel, handed him one of the Xeroxed forms for authorizing union de- ductions, and asked him whether he wanted to join the Union. The son dated and signed the card, writing on it, "I don't want to join the union." He returned the form to his father who later delivered it to Riddle. This ap- pears to be the only indication the son made respecting his attitude toward the Union. Health and welfare contri- butions were deducted from his first paycheck on Sep- tember 23 but not thereafter and instead, beginning with his paycheck on October 1, were included in his pay- checks. Local 69 had no notice or opportunity to bargain regarding this matter. From the above it is apparent that as early as August 26, 1982, when the elder Black expressed himself, Riddle became aware of some lack of employee support for Local 69. This was followed by the unsolicited observa- tion of Malcome when he was hired in early September that he was not a strong unionman, and his objections to the deductions when he received his first paycheck on September 9. Then on September 15, shortly after he had hired his nephew, Riddle gave him the form for author- izing union deductions, as contemplated in the collective- bargaining agreement, and instructed him to fill it out as he wished. The nephew indicated on the card that he did not want to be in the Union and later in the month ver- bally gave his reasons for his attitude. Also, in mid-Sep- tember, Glasscock told Riddle he did not want to be in the Union and Riddle should not make union withhold- ings from his paycheck. Shortly thereafter, observing he wanted to know whether Glasscock wished to join the Union, Glasscock responded by signing the card in a manner indicating he did not want the deductions made. This was followed on September 23 by a query from Dailey whether he could work if he did not have the permit money withheld. When Riddle told him he could, Dailey directed him not to make the deductions. In the latter part of September and early October (but prior to October 7), Riddle heard verbal expressions from Jea- kins, Akins, Ed Casey, and Graves indicating their lack of support for Local 69 and, in fact, the entire crew, when informed that Local 69 might be picketing the Eagle's job, nevertheless proceeded to work with appar- ent enthusiasm. In addition to verbal statements of employees, Riddle received authorization forms from seven employees filled out in a manner indicating less than full support for Local 69.8 Three of these cards indicated the signing em- ployee did not wish union dues, permit money, and other deductions made from their paychecks, and, standing alone, do not amount to categorical rejections of Local 69 as employee representative. See Randle-Eastern Am- bulance Service, supra. The other four cards express a broader desire not to be identified with the Union, one indicating a desire not to be "in the Union," another not to "join the Union," another not to "belong to the Union," and another not "to be part of Roofers Local 69." The oral comments and the cards are evidence tend- ing to erode the presumed continued majority status of Local 69. There is no basis in the record for fording that Riddle solicited employees to oppose the Union or with- draw support from it, as alleged in the complaint, nor is there evidence of an illegal poll of employee sentiment respecting the Union as urged in the General Counsel's brief. The collective-bargaining agreement contemplates that the Employer shall obtain employee authorization for union-related deductions and in all instances it is clear that Riddle underscored that the employee should express his own wish in the matter. I find, therefore, that these expressions of employee sentiment were evidence on which, unless tainted by unfair labor practices, Riddle was entitled to rely in assessing whether Local 69 should or should not continue to be recognized as the represent- 8 Riddle received an eighth card from Graves, which was filled out on October 8, 1982. As noted above, this card cannot be a basis for the em- ployer's good-faith doubt of the Union's majority status on October 7. MCLEAN COUNTY ROOFING ative of his roofing employees. Bellwood General Hospital v. NLRB, 627 F.2d 98 (7th Cir. 1980). The General Counsel argues that the evidence relied on by McLean to support the good-faith doubt defense is inadequate because a majority of the employees did not execute cards indicating their rejection of the Union. The argument, as stated, is faulty because it takes account only of the cards, ignoring the oral expressions of senti- ment noted above. On October 7, when McLean with- drew recognition of Local 69, it employed 12 roofers within the admitted appropriate bargaining unit.? Of these 12 employees Riddle has as of October 7 some in- formation from all but 2 (Tim Hardin and Tom Howell) indicating lack of support for Local 69 . Noting that it is not essential that a good-faith doubt be supported by such information from a majority of the employees, I find that on October 7 Riddle had sufficient objective knowledge, which would have justified a good-faith doubt of the majority status of Local 69 in the absence of tainting unfair labor practices. 3. The context of the unfair labor practices The General Counsel urges that a good-faith doubt de- fense is not available because of Respondents ' unfair labor practices in (1) refusing to recognize and bargain with Local 69 concerning the working conditions of Ac- curate employees and the requirement that roofers work- ing on Accurate jobs do so under nonunion conditions, (b) unilaterally changing terms of employment of McLean employees, and (c) soliciting employees to aban- don the Union. For Respondents to be deprived of that defense, the unfair labor practices must have tainted the Employer's good-faith doubt asserted at the time of with- drawal of recognition. The McLean crewmen who ex- pressed their reservations concerning Local 69 , verbally or in writing, did not work on Accurate jobs or under the nonunion conditions that the General Counsel con- tends were violations of the Act. Some testified they knew nothing about Accurate or its operations . I do not credit these disclaimers. Given the modest size of the McLean work force at its largest, together with the proximity of Accurate, the common supervision of Dennis Casey, and the fact that almost all Accurate roof- ers were members of the McLean crew , I infer that the nonunion status of Accurate was general knowledge among McLean roofers. These nonunion conditions had been apparent at least since May 1982 and remained so through the time of McLean's withdrawal of recognition on October 7, 1982. Thus, the ongoing refusal to recog- nize and bargain about the Accurate operation provided a pervasive and continuing atmosphere of unfair labor practices during the time Riddle was noting and collect- ' The employees within the bargaining unit included Chris Akins, Richard Black Sr., Richard Black Jr., Ed Casey, Richard Dailey, John Glasscock, David Graves, Tim Hardin, Tom Howell, Wesley Jeakins. David Riddle, and Robert Sylvester. Although Michael Riddle, a son of the owner of McLean, was employed by the Company as of October 7, 1982, he was not an employee within the meaning of Sec. 2(3) of the Act or within the bargaining unit. Richard Malcome was an employee within the bargaining unit through October 6, but that was his last day of work. He did not work for McLean thereafter and cannot be considered as within the bargaining unit as of October 7. 701 ing antiunion sentiments from employees and up to and beyond the date of withdrawal of recognition. As the Board stated in C & C Plywood Corp., 163 NLRB 1022, 1024 (1967), "The failure to accord the Union its rightful role in the establishment of new wage rates ... neces- sarily tended to undermine the Union's authority among the employees whose interests it was obligated to repre- sent in such matters." Beginning in early September this context of unfair labor practices increased further with the diversion of union dues, permit fees, and health and welfare contribu- tions from the union recipients to the employee, thereby effectively increasing the employee's pay. These de facto increases were carried out without notice to Local 69 or opportunity for it to bargain on the matter, while it was still presumptively the majority representative, and before the October 7 withdrawal of recognition based on doubt on the Union's majority status. In this fashion the take-home pay of employees was increased as follows: Richard Black Sr. on September 9, David N. Riddle and Chris Akins on September 16, John Glasscock and Wesley Jeakins on September 23, and Richard Black Jr. and Richard Dailey on October 1. I find these unilateral increases, which further undercut the status of the Union, were additional unfair labor practices prohibited by Section 8(aXl) and (5) of the Act. C & C Plywood Corp., supra; and see Abbey Medical/Abbey Rents, supra. I also find that the cessation of health and welfare and pension payments to the union funds violated Section 8(a)(1) and (5) of the Act. Cauthorne Trucking, 256 NLRB 721 (1981). It is arguable that the sums involved in these changes belonged to the respective employees and that McLean merely gave them what was already theirs. Be that as it may, there is no disputing the unilat- eral nature of the changes with the attendant undercut- ting effect on the Union's status. Even if the employees were entitled to the money, McLean was obligated to take the matter up with the Union as their lawful repre- sentative. It is also arguable that the changes complied with the collective-bargaining agreement. I find they did not because the pattern of the agreement is to funnel cer- tain amounts to the employees and other amounts to the Union or union funds. The most that can be contended for the defense on this point is that the agreement is am- biguous. If so, Respondent is not thereby relieved of its duty to bargain with the Union on such matters. See C & C Plywood Corp., supra. Considering the totality of the circumstances, I find that Riddle may not assert a good-faith doubt as of Octo- ber 7, 1982, regarding the majority status of Local 69 be- cause, even though he knew of considerable antiunion sentiment among the employees, that doubt thrived in the context of continuing unfair labor practices which nurtured disaffection from the Union. Celanese Corp., 95 NLRB 664 (1951). In this respect these circumstances differ from those in Sofco, Inc., 268 NLRB 159 (1983), where the Board found objective considerations suffi- cient to support the employer's good-faith doubt of union majority status . There there appeared to be no comparable context of unfair labor practices. The basis for McLean's withdrawal of recognition from Local 69 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is, therefore, unfounded and constitutes no refutation of its presumed majority status. That presumption of con- tinuing majority status is based on the Union's labor rela- tions history with McLean. Barrington Plaza & Tragniew, 185 NLRB 962, 963 (1970), enf, denied on other grounds 470 F.2d 669 (9th Cir. 1972). It follows that by its with- drawal of recognition on October 7, 1982, McLean ren- eged on its continuing duty to recognize and bargain with Local 69 and in so doing violated Section 8(a)(1) and (5) of the Act. Celanese Corp., supra; Shamrock Dairy, supra, 119 NLRB 998 and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cir 1960), cert. denied 364 U.S. 892 (1960); Bartenders Assn., 213 NLRB 651, supra. It also follows from McLean's continuing duty to rec- ognize and bargain with Local 69 that the unilateral re- imbursement to employees after October 7, 1982, of union dues and deductions made before that date and the increase in take-home pay that resulted and continued thereafter also violated Section 8(a)(1) and (5) of the Act. Such increases were given after October 7 to Ed Casey, David Graves, and Robert Sylvester. 4. The failure to provide information When McLean withdrew recognition from Local 69 on October 7, 1982, Union Attorney Benassi that same day in a letter to Respondent Attorney Roesler protest- ing the withdrawal of recognition also requested that Re- spondents furnish the Union certain information for use in collective bargaining, including employment records of both companies showing rates of pay, hours worked, and fringe benefits paid since January 1, 1982. It is undis- puted that this information has not been supplied. The in- formation requested, apparently relevant for bargaining purposes, has not been furnished because of the defense that Respondents have no duty to bargain with Local 69. Inasmuch as it has been found above that such duty exists, it follows that the relevant information requested should be furnished for bargaining and Respondents' fail- ure to do so constitutes an additional violation of Section 8(a)(1) and (5) of the Act. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). CONCLUSIONS OF LAW 1. Respondents McLean and Accurate are employers within the meaning of Section 2(2) of the Act, a single employer for labor relations purposes; alter egos of each other for labor relations purposes; and engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. All full-time and regular part-time journeymen roof- ers, helpers, and apprentices employed by Respondent McLean or Accurate at their Bloomington, Illinois facili- ties and various jobsites; but excluding professional em- ployees, office clerical, guards, and supervisors as de- fined in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Local 69 was and is, and prior to January 1980 Local 130 was, a labor organization within the meaning of Section 2(5) of the Act. 4. Respondent McLean adopted and became bound by the collective-bargaing agreement of Local 69 with Bloomington, Illinois roofing contractors effective May 1, 1980. 5. By informing employees in April and May 1982 that in working for Accurate they would be working under nonunion conditions, Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 8(d) of the Act by (a) In June 1982 and thereafter, although requested to do so, refusing to recognize and bargain with Local 69 as the representative of the roofing employees of Accu- rate. (b) In September 1982 and thereafter increasing the take-home pay of employees by the amounts previously deducted as union dues, permit fees, and health and wel- fare contributions. (c) Effective October 1, 1982, ceasing to remit employ- ee union dues and permit fees to Local 69 and contribu- tions to the health and welfare fund to the roofers pen- sion fund designated by Local 69. (d) On October 7, 1982, withdrawing recognition from Local 69 as the representative of Respondents' roofing employees and refusing thereafter to bargain collectively with that Union. (e) Since October 7, 1982, failing and refusing to fur- nish to Local 69 relevant information necessary for col- lective bargaining. 7. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 8(d) of the Act, I shall order that Respondents cease and desist therefrom, and, on request, bargain collectively with Local 69 as the exclusive representative of all employees in the appropri- ate unit. I shall further order that Respondents make whole the employees in the unit found appropriate here by paying all contributions to the health and welfare and pension trust fund as provided in the collective -bargaining agree- ment of Local 69 effective from May 1, 1980 , until its ab- rogation October 7 , 1982, which have been paid absent Respondents' refusal to apply the terms of agreement to Accurate employees and McLean's unilateral discontinu- ance of such payments, and to post the attached notice-8 8 Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments . The Board leaves to the compliance stage the question of whether Respondents must pay any additional amounts into the benefit funds in order to satisfy the "make-whole" remedy. These ad- ditional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions , to evidence Continued MCLEAN COUNTY ROOFING 703 See Bra Concrete Cutting, 266 NLRB 100 (1983); G. T. Knight Co., 262 NLRB 328 (1982); Haberman Construc- tion Co., 236 NLRB 79 (1978); Vin James Plastering Co., 226 NLRB 125 (1976). This make-whole remedy shall in- clude reimbursing employees for contributions they themselves may have made or the maintenance of their coverage for benefits after Respondents unlawfully ceased contributing, for any premiums they may have paid to third-party insurance companies for coverage heretofore provided by the trust, and for any medical bill employees have paid to health care providers that the trusts would have covered , together with interest as pro- of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses. See Merryweather Optical Co., 240 NLRB 1213 (1979). vided in Florida Steel Corp., 231, NLRB 651 (1977).° See Hudson Chemical Co., 258 NLRB 152 (1981 ); Kraft Plumbing & Heating, 252 NLRB 891 (1980). The General Counsel urges that the remedy include enforcement of the Local 69 contract beyond October 7, 1982 . It is not demonstrated in this record, however, that, absent clear contractual provisions controlling the duration and ter- mination of the agreement, Respondents violated the contract by canceling it. The appropriate remedy , there- fore, is for Respondents to bargain with Local 69 regard- ing terms and conditions of employment after October 7, 1982. Respondents also will be required to preserve and, on request, make available to authorized agents of the Board all records necessary or useful in determining compliance with this Order. [Recommended Order omitted from publication.] See generally Isis Plumbing Co., 138 NLRB 716 (1962).