Michael J. Bollinger Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael J. Bollinger Co. and United Union of Roof- ers, Waterproofers and Allied Workers, Local No. 80. Case 5-CA-10928 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 21, 1980, Administrative Law Judge Bruce C. Nasdor issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his remedy,' and to adopt his recommend- ed Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Michael J. Bollinger Co., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Insert the following as paragraph 2(e) and relet- teY the subsequent paragraphs accordingly: "(e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." See Isis Plumbing & Healing Co., 138 NLRB 716 (1962), for rationale on interest payments. In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. 2 The Administrative Law Judge inadvertently failed to include in his recommended Order a provision that Respondent make all pertinent re- cords available We shall modify his recommended Order to include such provision. DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge: This case was heard in Baltimore, Maryland, on December 19, 252 NLRB No. 67 1979, and January 3 and 4, 1980. The charge was filed by United Union of Roofers, Waterproofers and Allied Workers, Local No. 80 (referred to herein as the Union or the Charging Party), on May 7, 1979. The complaint and notice of hearing issued on July 17, 1979, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (herein the Act). Re- spondent filed its answer to the complaint on July 19, 1979, denying the allegations. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the brief filed by counsel for the General Coun- sel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is engaged at its Baltimore, Maryland, lo- cation in the business of roofing replacement and repair. During the past 12 months, a representative period, Re- spondent purchased and received, in interstate com- merce, products valued in excess of $50,000, directly from points located outside the State of Maryland. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE lABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALI.EGEI) UNFAIR I.ABOR PRACTICES The issues to be decided are: 1. Whether or not Respondent timely and properly withdrew from the multiemployer bargaining association known as the Sheet Metal and Roofing Contractors As- sociation of Baltimore, Maryland, Inc. (herein called the Association). 2. Whether Respondent is obligated by law to execute the collective-bargaining agreement which was agreed to and executed by the other members of the Association and the Union. A. The Evidence The credible evidence reveals that the Sheet Metal and Roofing Contractors Association of Baltimore, Mary- land, Inc., is an organization composed of various em- ployers who are engaged in the sheet metal and roofing business. One of its functions is to bargain collectively with the Union on behalf of its employer members and other employers, who authorize it to do so, concerning wages, hours, and other conditions of employment. The Association and the Union have had a collective-bargain- ing relationship since 1964 and have been signatories to collective-bargaining agreements extending over that period of time. The members of the Association are: Thomas Farell Co., Inc., Charles A. Dell, Chase Water- proofing Co., Inc., Peter Gordon Company, Warren Ehret Link Company, Bollinger Roofing Co., and Mi- 406 MICHAEL J. BOLLINGER CO. chael J. Bollinger Company. All of the Association mem- bers have executed the current collective-bargaining agreement with the Union with the exception of Re- spondent. In 1976, prior to the commencement of negotiations for the 1977-79 contract, Respondent sent the Union a letter withdrawing from the Association. The letter is dated July 13, 1976, and states: Gentlemen this company has withdrawn its bar- gaining authority from the Sheet Metal and Roofing Contractors Association of Baltimore, Maryland, Inc. The Association shall no longer have authority to bargain with your local union on our behalf. We shall remain a member of the Association however, and shall participate in the Association, but the As- sociation shall no longer be our bargaining repre- sentative. The letter was signed by Michael J. Bollinger, Jr. There- after, Respondent President Michael J. Bollinger, Jr., at- tended all bargaining sessions with the other employer members and acted as their chief negotiator. Respondent signed the collective-bargaining agreement between the Association and the Union and abided by the terms of that collective-bargaining agreement, including a check- off provision. Prior to negotiations for the current collective-bargain- ing agreement, on January 26, 1979, Respondent's presi- dent again wrote to the Union the following: Gentlemen, please be advised that effective today, January 26, 1979, we are withdrawing our bargaining rights from the Sheet Metal and Roofing Contractors Association of Baltimore, Maryland, Inc. with regards to the upcoming contract renewal with Local No. 80. We shall bargain in good faith individually with Local No. 80 as regards to the contract which ex- pires March 31, 1979. Charles S. Dell Co., another employer member, wrote a similar letter dated January 30, 1979. Thereafter, five negotiation sessions ensued between mid-March and April 16, 1979, where Respondent was represented at four of these five sessions. Timothy Bol- linger represented Respondent at the first meeting and Michael J. Bollinger, Jr., was present at three of the other meetings. At the meetings where Michael J. Bol- linger, Jr., was in attendance he presented the employer Association's wage proposal to the Union and in general acted as chief spokesman for the group. The other mem- bers of the Association also attended these negotiation sessions. During these sessions one wage proposal was made from the Association to the Union and only one proposal was proffered from the Union to the Associ- ation. Michael J. Bollinger, Jr., was speaking for Warren Ehert Link Company and was, according to the testimo- ny of Hugh Wolfe, vice president of Warren Ehert Link Company, speaking for the corporate interest of that em- ployer and was supposed to make an offer on its behalf to the Union. An agreement was ultimately reached, the Union had the contract printed for signature, and all of the Association members, except Respondent, signed the current collective-bargaining agreement. A representa- tive of the Charles S. Dell Company also signed the cur- rent collective-bargaining agreement. Respondent's president testified that when he sent the letter to the Union withdrawing authority from the As- sociation, he was concerned that the other employer members would sign an agreement that he could not "live" with economically. He testified candidly that he would have considered signing the contract had he been able to "live" with it economically. Once he found out what the employers and the union had agreed to, he de- cided he could not "live" with the terms and conditions of the current contract and withdrew from the Union's health and welfare fund by letter dated May 7, 1979. B. Analysis and Conclusion From the record evidence in this case, a pattern emerges that there has been a history over the years of a multiemployer association, including Respondent herein, intending to be bound by group action. There was con- sistent multiemployer bargaining and, after reaching agreement, a single collective-bargaining agreement ap- plicable to all of the parties was executed by all of the parties. Furthermore, in the case of this Respondent, Re- spondent continued this pattern in the face of sending notification to the Union stating its desire to withdraw from the Association bargaining. Moreover, in the most recent negotiations, Respondent and the Charles S. Dell Company both expressed their desires to withdraw from Association bargaining. Respondent's actions thereafter were a clear manifestation of its design to be bound by Association bargaining until Respondent determined it would not be economically feasible for it to be a party to the contract that the Association had reached with the Union. Simply put, Respondent was saying one thing and doing something else. Its principal witness, Bollinger, candidly testified that he wanted to retain the right to bargain on an individual basis in the event that the Asso- ciation and the Union entered an agreement that he could not "live" with. This is not unlike Associated Shower Door Co. Inc., 205 NLRB 677 (1973), where an administrative law judge concluded with Board approval that the respondents tried to secure "the best of two worlds" by continuing in negotiations after having with- drawn from same, and attempting to secure satisfactory terms in the collective-bargaining agreement, while at the same time attempting to preserve their rights to reject the contract if they did not like it, and to continue to bargain individually for a better contract. I agree with counsel for the General Counsel that the instant situation presents clear motivation by way of record testimony as to why Respondent wrote both withdrawal letters. It is also noted that Charles S. Dell Company after sending a similar withdrawal letter, participated in negotiations and executed the agreed upon collective-bargaining agree- ment. Accordingly, in light of the bargaining history, I con- clude that Respondent manifested an intention to be bound by group, rather than individual bargaining, and that its refusal to sign the agreement agreed to by the 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties on April 1, 1979, was a refusal to bargain within the meaning of Section 8(a)(l) and (5) of the Act. CONCI.USIONS OF LAW I. Michael J. Bollinger Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Union of Roofers, Waterproofers and Allied Workers, Local No. 80, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Association has rec- ognized and negotiated a series of collective-bargaining agreements with the Union as the exclusive bargaining representative of the employees in the unit appropriate for collective bargaining consisting of all sheet metal and roofing employees employed by the employer who are bound by the collective-bargaining agreement between the Union and the Association. The most recently ex- pired collective-bargaining agreement between the Union and the Association was effective for the period April 1, 1979, through March 31, 1980.' 4. United Union of Roofers, Waterproofers and Allied Workers, Local No. 80, has been at all times material herein, and is now, the representative of a majority of employees in the appropriate unit, and by virtue of Sec- tion 9(a) of the Act, has been, and is, the exclusive repre- sentative of all employees of the aforesaid unit for the purposes of collective bargaining.2 5. The Sheet Metal and Roofing Contractors Associ- ation of Baltimore, Maryland, Inc., is an organization composed of various employers engaged in the sheet metal and roofing industries in the greater metropolitan area of Baltimore, Maryland. It exists for the purpose, among others, of bargaining collectively with the Union, on behalf of member employers and other employers who so authorize it to do so, concerning wages, hours, working conditions and other conditions of employment of its employees. 6. By failing and refusing to execute or become a party to the collective-bargaining agreement negotiated by the employer members of the Sheet Metal and Roofing Con- tractors Association of Baltimore, Maryland, Inc., and the United Union of Roofers, Waterproofers end Allied Workers, Local No. 80, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take appropriate affirmative action designed to effectuate the policies of the Act. In Art. 16 of the contract provides that it shall automatically renew itself for successive periods of I year unless written notice is given by either party to the other of its desire to terminate or modify the agree- ment at least 60 days prior to March 31, 1980, or the anniversary date of the succeeding year. I Evidence of the Union's majority status was not at issue, therefore there is a presumption of majority arising out of the history and pattern of collective bargaining and the Union's incumbency as representative of the unit employees. particular, I shall recommend that Respondent be or- dered to execute and honor the collective-bargaining agreement containing all of the provisions of the collec- tive-bargaining agreement entered into by the other em- ployer members of the Sheet Metal and Roofing Con- tractors Association of Baltimore, Maryland, Inc. I shall also recommend that Respondent make its employees whole for any loss of earnings or benefits they may have suffered by reason of Respondent's failure and refusal to execute and abide by the aforesaid agreement, to be com- puted in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in accordance with the decision in Flor- ida Steel Corporation, 231 NLRB 651 (1977). In addition, I shall recommend that Respondent pay to the Union any money owed to the health and welfare fund under the terms of the aforesaid agreement, and reimburse any employee initiation fees which shall be required as a con- dition of rejoining the Union in accordance with the aforesaid agreement. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER3 The Respondent, Michael J. Bollinger, Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with United Union of Roofers, Waterproofers and Allied Workers, Local No. 80, as the exclusive representative of its employees in the unit de- scribed above, by failing and refusing to execute, sign, or become party to the collective-bargaining agreement ne- gotiated and entered into between the Sheet Metal and Roofing Contractors Association of Baltimore, Mary- land, Inc., and the United Union of Roofers, Water- proofers and Allied Workers, Local No. 80. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act or to refrain from any or all such activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Forthwith execute and honor the collective-bar- gaining agreement negotiated between the employer- members of the Association and the Union. (b) Make its employees whole for any loss of earnings or benefits they may have suffered by reason of Re- spondent's failure and refusal to execute and abide by the 3 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 408 MICHAEL J. BOLLINGER CO. aforesaid agreement in the manner set forth in the sec- tion entitled "The Remedy." (c) Pay to the Union any money owed to the health and welfare fund under the terms of the aforesaid agree- ment. (d) Reimburse any employee initiation fees which will be required as a condition of rejoining the Union in ac- cordance with the aforesaid agreement. (e) Post at its Baltimore, Maryland, facility, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAIL LABOR R ATIONS BOARI) An Agency of the United States Government WE WIL. NOT refuse to bargain collectively with the United Union of Roofers, Waterproofers and Allied Workers, Local No. 80, by failing and refus- ing to execute and honor the agreement negotiated and entered into with said union and the Sheet Metal and Roofing Contractors Association of Bal- timore, Maryland, Inc. WE WILl. NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL forthwith execute and honor the agree- ment negotiated between the Association and the Union. WE wil.L. make our employees whole for any loss of earnings or other benefits they may have suffered by reason of our failure and refusal to execute and abide by the aofesaid agreement. WE wIlll pay to the Union any money owed to the health and welfare fund under the terms of the aforesaid agreement. WE WI.L reimburse any employee initiation fees which will be required as a condition of rejoining the Union in accordance with the aforesaid agree- ment. MICHAEIL J. BolI INGER Co. 409