Beacon Sales Acquisition, Inc., d/b/a Quality Roofing Supply Company

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 789 (N.L.R.B. 2011)

QUALITY ROOFING SUPPLY CO.
357 NLRB No. 75
789
Beacon Sales Acquisition, Inc. d/b/a Quality Roofing
Supply Company and International Union of
Operating Engineers Local 542, AFL–CIO.
Cases 04–CA–036852 and 04–CA–036879
August 26, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On July 29, 2010, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs1 and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order as modified.2
1. We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing health insurance premium increases for its
union-represented employees on or about January 3,
2009. We agree with the judge that the Union did not
“clearly and unmistakably” waive its right to file a
charge challenging the unilateral change when it entered
into a February 2009 non-Board settlement agreement
with the Respondent that provided, among other things,
that “[t]he Union will inform the Region and/or National
Labor Relations Board that the Union and its members
are withdrawing all unfair labor practice charges or ap-
peals . . . with prejudice.” See Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 708 (1983) (waivers of statutori-
ly protected rights must be “clear and unmistakable”).
The Union’s unilateral-change charge was not pending at
the time of the parties’ non-Board settlement, and that
charge involved different unlawful conduct from any of
the unfair labor practice charges that the Union withdrew
as part of the settlement. In these circumstances, we
agree with the judge, for the reasons he stated, that the
non-Board settlement did not “clearly and unmistakably”
cover the Union’s subsequently filed unilateral-change

1 The Respondent has requested oral argument. The request is de-
nied, as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis. We also modify the judge’s recommended
Order to provide for the posting of the notice in accord with J. Picini
Flooring, 356 NLRB 11 (2010).
charge. Compare Septix Waste, Inc., 346 NLRB 494,
495 (2006) (agreement stating union “resigns all claims
made or that could have been made to this date”) (em-
phasis added).
Further, there is no merit in the Respondent’s argu-
ment, based on Stone Container Corp., 313 NLRB 336
(1993), that it was privileged to implement the health
insurance premium increases because a bargaining im-
passe had been reached on that issue. The employer in
Stone Container had an established practice of conduct-
ing an annual wage and benefit survey and implementing
an increase, if appropriate, each April. Id. at 336. In the
instant case, the Respondent has not established that an
increase in employees’ health insurance premiums was a
discrete, annually recurring event—a necessary require-
ment under Stone Container. Finally, in adopting the
judge’s finding of this violation, we do not rely on his
dicta regarding the Board’s decisions in Auto Bus, Inc.,
293 NLRB 855 (1989), and Septix Waste, supra.
2. We also adopt the judge’s finding, for the reasons
set out in his decision, that the Respondent violated Sec-
tion 8(a)(5) and (1) by refusing to meet and bargain with
the Union from July 9 to August 10, 2009, without the
presence of a Federal mediator. Even assuming that the
Union’s refusal to continue bargaining with a mediator
constituted a breach—or even a total repudiation—of the
ground rules established by the parties’ January 22, 2009
“Interim Agreement,” and even assuming that such con-
duct amounted to a violation of the Union’s duty to bar-
gain in good faith, the Respondent’s own duty to meet
and bargain in good faith remained intact. See Plumbers
Local 457 (Bomat Plumbing & Heating), 131 NLRB
1243, 1246 (1961), enfd. 299 F.2d 497 (2d Cir. 1962)
(“One unfair labor practice does not excuse another.”).
Consequently, the Respondent’s refusal to meet and bar-
gain with the Union was unlawful.3 We note that the

3 Chairman Liebman would find that the Respondent did not unlaw-
fully refuse to bargain with the Union while the latter was violating the
parties’ signed agreement “to utilize the FMCS mediator during their
negotiations.” This case implicates the Board’s “proper role in super-
vising the process of bargaining and ensuring that the parties live up to
their undertakings.” Detroit Newspapers, 326 NLRB 700, 725 (1998)
(Member Liebman, concurring in part and dissenting in part), enf.
denied sub nom. Detroit Typographical Union 18 v. NLRB, 216 F.3d
109 (D.C. Cir. 2000). “National labor policy favors the honoring of
voluntary agreements reached between employers and labor organiza-
tions.” Verizon Information Systems, 335 NLRB 558, 559 (2001),
quoting Pall Biomedical Products Corp., 331 NLRB 1674, 1677
(2000). Here, the Union and the Respondent agreed to bargaining
meeting logistics and to use a Federal mediator. Although the agree-
ment allowed either party to cancel it upon 30-days’ notice, which the
Union gave, nothing in the agreement permitted the Union to refuse to
bargain without a mediator during the notice period. Thus, whatever
may be said of the Respondent’s conduct, the fact is that the Union, too,
resorted to self-help during the notice period. In those circumstances,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
remedy being imposed here is a cease-and-desist order
that will encourage parties in future cases to continue to
meet and talk under parallel circumstances.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Beacon
Sales Acquisition, Inc. d/b/a Quality Roofing Supply
Co., North Wales, Eddystone, York, and Yeadon, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the recommended Order
as modified.
Substitute the following for paragraph 2(e).
“Within 14 days after service by the Region, post at its
facilities in North Wales, Eddystone, York, and Yeadon,
Pennsylvania, copies of the attached notice marked “Ap-
pendix.”18 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since January 3, 2009.”

Jennifer Roddy Spector, Esq., for the General Counsel.
Ross D. Cooper, Esq. (Beacon Sales Acquisition, Inc.), of Be-
thesda, Maryland, for the Respondent.
Frank Bankard (IUOE Local 542), of Fort Washington, Penn-
sylvania, for the Charging Party.

the Chairman would not find that the Respondent’s suspension of bar-
gaining for 1 month violated the Act. The question in Plumbers Local
457, cited above, was whether a union’s unlawful secondary activity
was excused by an unlawful provision in a contractor’s agreement to
supply nonunion labor. 131 NLRB at 1245. This case is more closely
analogous to Dunn Packing Co., 143 NLRB 1149, 1152 (1963), where
the Board dismissed a refusal-to-bargain charge against an employer
because both it and the union were “equally dilatory.” Dunn Packing
recognizes that collective bargaining is uniquely a bilateral process that
depends on the good-faith efforts of both sides to be successful.
DECISION
Introduction
DAVID I. GOLDMAN, Administrative Law Judge. These cases
involve an employer engaged in first-contract negotiations.
The Union was certified as the employees’ representative in
2007. The bargaining took place in the context of numerous
unfair labor practice charges filed by the union. Many of these
unfair labor practice charges were the subject of a formal set-
tlement between the National Labor Relations Board (the
Board) and the employer in February 2009, and others, the
subject of a non-Board settlement between the employer and
union, also in February 2009.
The instant cases involve two discrete outstanding claims
against the employer. Both the claims and the defense are nar-
rowly framed.
First, in Case 04–CA–036852, the Government alleges that
the employer’s January 3, 2009 increase in the health insurance
premiums paid by bargaining unit employees, implemented in
the midst of negotiations for a first collective-bargaining
agreement, was unlawful, as this unilateral change in a manda-
tory subject of bargaining was undertaken without affording the
Union sufficient opportunity to bargain, and without reaching
an overall good-faith bargaining impasse. The employer admits
this characterization of its actions. However, it contends that
this allegation was the subject of a pending unfair labor practice
charge that was withdrawn by the Union “with prejudice” pur-
suant to its February 2009 settlement with the employer. In
other words, the employer contends this claim was waived.
Second, in Case 04–CA–036879, the Government alleges
that from July 9 through August 10, 2009, the employer unlaw-
fully refused to meet with the union to collectively bargain.
This occurred after and because the union announced that it
was no longer willing to bargain with the participation of a
Federal mediator. The employer admits the alleged conduct.
However, the employer maintains that its refusal to meet was
privileged because, it asserts, the ground rules for negotiations
agreed to between the employer and the union in January 2009,
in an “Interim Agreement,” mandated the presence of a Federal
mediator at each bargaining session.
STATEMENT OF THE CASE
On June 19, 2009, the International Union of Operating En-
gineers Local 542, AFL–CIO (the Union) filed an unfair labor
practice charge against Quality Roofing Supply Co. Inc. (Quali-
ty Roofing), docketed by Region 4 of the Board as Case 4–CA–
36852. On July 8, 2009, the Union filed another unfair labor
practice charge against Quality Roofing, docketed by Region 4
of the Board as Case 04–CA–036879. By Order issued De-
cember 23, 2009, the Board’s General Counsel, by the Region 4
Regional Director, consolidated the two cases and issued a
consolidated complaint alleging that Quality Roofing had vio-
lated the National Labor Relations Act (the Act). The Regional
Director amended the consolidated complaint on January 5,
2010, and again on May 18, 2010. One of the amendments,
offered in response to assertions by the Respondent that it had
been improperly named in the complaint, was to correct the
QUALITY ROOFING SUPPLY CO. 791
name of the Respondent to Beacon Sales Acquisition, Inc.,
d/b/a Quality Roofing Supply Co. (Quality Roofing).
The matter was scheduled to be heard May 26, 2010. On
May 24, 2010, the General Counsel and the Respondent filed a
stipulation of facts and exhibits, with a request to waive the
hearing and decide the case on the stipulated facts and exhibits.
The Union wrote a letter objecting to waiver of the hearing. By
Order dated May 25, 2010, I postponed the hearing indefinitely,
set a schedule for briefing, and received the stipulation of facts
and exhibits into evidence, as well as the Union’s objections.
The parties filed briefs by July 1, 2010. On the entire record, I
make the following findings, conclusions of law, and recom-
mendations.1
Jurisdiction
The complaint

alleges, Quality Roofing admits, and I find
that at all material times Quality Roofing has been engaged,
inter alia, in the wholesale distribution of roofing and building
materials to construction industry contractors at its facilities in
North Wales, Eddystone, York, and Yeadon, Pennsylvania.2
The complaint alleges, Quality Roofing admits, and I find, that
during the past year, Quality Roofing, in conducting its busi-
ness operations, has purchased and received at the North Wales,
Eddystone, York, and Yeadon, Pennsylvania facilities good
valued in excess of $50,000 directly from points outside the
Commonwealth of Pennsylvania. The complaint further alleg-
es, Quality Roofing admits, and I find, that at all material times,
Quality Roofing has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. The
General Counsel alleges, Quality Roofing stipulates, and I find,
based on the record evidence, that at all material times the Un-
ion has been a labor organization within the meaning of Section
2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of these cases, pursu-
ant to Section 10(a) of the Act.
Statement of Facts
Background
At various dates in November and December 2007, the Un-
ion was certified by the Board as the exclusive collective-
bargaining representative of four bargaining units composed of
the Respondent’s employees. Each bargaining unit was com-
prised of employees employed at one of the Respondent’s facil-
ities, described above, located in North Wales, Eddystone,
York, or Yeadon, Pennsylvania. At all times since the dates of

1 I hereby grant the General Counsel and the Respondent’s motion to
waive the hearing in this matter and overrule the Union’s objections as
moot. Given my resolution of the dispute, which is based solely on the
stipulations agreed to by the Respondent, and received into evidence,
there is no reason to further address the Union’s demand for a hearing.
2 The North Wales facility is located at 1256 Welsh Road, North
Wales, Pennsylvania. The Eddystone facility is located at 2000 Indus-
trial Highway, Eddystone, Pennsylvania. The York facility is located at
3336 Concord Road, York, Pennsylvania. The Yeadon facility is locat-
ed at 6250 Baltimore Pike, Yeadon, Pennsylvania.
certification, the Union has been the exclusive collective-
bargaining representative of these bargaining unit employees.3
Numerous unfair labor practice charges and amended charg-
es (at least 52, including amended charges) were filed against
Quality Roofing between November 6, 2007, and December 12,
2008. These included charges that resulted in a February 2009
formal settlement agreement (discussed below) requiring that
Quality Roofing cease and desist from a wide range of miscon-
duct. This misconduct included failing or refusing to bargain
collectively and in good faith, discontinuing bonuses or reduc-
ing overtime hours in order to discourage membership in the
Union, and other alleged improprieties.4
Events Between October 2008 and March 2009
On October 23, 2008, Quality Roofing sent the Union a letter
indicating that, effective January 1, 2009, it intended to make
certain benefit changes for its employees, including those rep-
resented by the Union. These changes included, inter alia, an
increase in health insurance premiums for employees.
On December 29, 2008, the Union filed an unfair labor prac-
tice charge with Region 4, docketed as Case 4–CA–36509. The
charge alleged that Quality Roofing had violated Section
8(a)(1) and (5) of the Act, and as the basis for the charge stated:

On or about December 22nd 2008[,] Quality Roofing
declared impasse on health [c]are, without providing re-
quested information, adequate time and information to
formulate intelligent proposals and a bargaining room on
December 12 which was not strategically adequate for the
Union bargaining team.
On or about December 2008 Quality [R]oofing would
not afford the Union the opportunity to have appropriate
representatives for its bargaining teams to bargain over the
matter of health [c]are and mandated unlawful require-
ments to members to travel for bargaining if they desired
to be part of the union[‘]s negotiating team.

Effective January 3, 2009, Quality Roofing implemented the
health insurance premium increases described in its previous
letter to the Union, resulting in increased premiums for union-
represented employees.
Quality Roofing and the Government stipulate that the pre-
miums paid by these employees are a mandatory subject of
bargaining and that Quality Roofing implemented these premi-
um increases without affording the Union sufficient opportunity
to bargain regarding them, and that the Union did not consent
to these changes before they were implemented. The Respond-

3 The bargaining unit at each of the four facilities is composed of the
following:
All full-time truck drivers and warehouse employees, excluding all
other employees, counter persons, sales representatives, fleet manag-
ers, clericals, managers, professionals, guards and supervisors as de-
fined in the Act.
4 The settlement agreement included a nonadmissions clause, pursu-
ant to which “[i]t is understood that by signing the Settlement Stipula-
tion, Respondent does not admit that it has violated the Act.” Accord-
ingly, one should not, and I do not, make any assumption that the Re-
spondent violated the Act with regard to the charges and cases that
were the subject of this settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
ent and the Government further stipulate that, although Quality
Roofing was engaged in collective bargaining for initial labor
agreements with the Union on January 3, 2009, an overall bar-
gaining impasse had not been reached as of the date of the im-
plementation of the premium increases.
On January 22, 2009, Quality Roofing and the Union signed
an “Interim Agreement” for the stated “purpose of handling
certain issues that may arise during the period the parties are
engaged in collective bargaining for a collective-bargaining
agreement.” (Jt. Exh. 21.) The parties agreed upon a process
for layoffs, the provision of notice and bargaining over disci-
pline of unit employees and a process of “logistics for “bargain-
ing meeting[s].” This provision, which was the first (of five)
numbered paragraphs of the Interim Agreement, stated:

Bargaining Meeting Logistics. The parties agree to meet at
FMCS in Philadelphia during business hours (9 AM to 5 PM),
unless the parties mutually agree to extend or shorten the time
based on progress of the negotiations. The parties agree to
utilize the FMCS mediator during their negotiations. The
Company will arrange for Jeff Metz to be present for bargain-
ing sessions. The parties agree to discuss all four unionized
branches at the bargaining sessions and bargain for one col-
lective-bargaining agreement which will apply to all four un-
ionized branches (except for separate wage schedules).[5]

The Interim Agreement’s fifth and final paragraph is headed
“Duration of this Interim Agreement.” It states:

This Agreement shall expire upon the earlier of (1) the parties
executing a collective-bargaining agreement or (2) either par-
ty providing the other party 30 days written notice of its intent
to terminate this Agreement.

Quality Roofing and the Union executed a non-Board Set-
tlement Agreement on February 4, 2009 (signed by the Union),
and February 6, 2009 (signed by the Respondent). The settle-
ment covered a variety of matters. It provided for Quality
Roofing to take action with regard to rehiring, pay rates, pay-
ment of bonus, and other matters for six designated employees,
as well as to clarify/rewrite certain handbook policies. The
parties agreed to bargain at the upcoming February 10 bargain-
ing session “over the manner in which changes in lunch poli-
cies, subcontracting and discipline will be handled pending
execution of a collective-bargaining agreement,” and agreed “to
handle the matters in approximately the same manner as set
forth in the Interim Agreement whereby Jeff Metz and Mike
Grant will discus such matters prior to implementation.” The
settlement included an agreement to have the Union cease and
reverse its previous efforts to discourage customers from pur-
chasing products from Quality Roofing.
The settlement also provided:

The Union will inform the Region and/or National La-
bor Relations Board that the Union and its members are
withdrawing all unfair labor practices charges and/or ap-
peals, including those relating to the layoff of Mr. Brown

5 Jeff Metz is an assistant vice president of Quality Roofing and an
agent of the Respondent within Sec. 2(13) of the Act.
and Mr. Valentine and the discharges [of] Mr. Durst, Mr.
Harris and Mr. Taliaferro, with prejudice.

This settlement was executed by Ross Cooper, senior vice pres-
ident and general counsel of Quality Roofing, and Frank Bank-
ard, an organizer for the Union. (Jt. Exh. 6.)
On February 4, union organizer Bankard, in an email to Re-
gion 4 Attorney Edward Bonett, that also included as recipients
other representatives of Region 4 and the Respondent, request-
ed that Bonnet “please withdraw, with prejudice, all Charges
and Appeals in relation[ ] to Quality Roofing as per the Settle-
ment attached along with the Board Settlement discussed and
presented and modified by the Company.”
In response, by letter dated February 5, 2009, the Region 4
Regional Director approved the Union’s request to withdraw
the charges in three pending cases, including Case 4–CA–
36509.
These three were not the only outstanding charges. As refer-
enced above, there were numerous other charges and cases
pending against Quality. In all, 23 cases were resolved as part
of a formal settlement agreement that the Union, Quality Roof-
ing, and Region 4 were negotiating in January and February
2009. A consolidated complaint involving these cases issued
January 26, 2009. The Formal Settlement Stipulation was exe-
cuted by the Union and Quality Roofing on February 17, 2009,
and signed by the Regional Director for Region 4 on March 3,
2009. The settlement provided, subject to the Board’s approv-
al, for the entry of a consent order by the Board and a consent
judgment by an appropriate United States court of appeals. The
Board approved the settlement, and issued its decision and
Order based on the Formal Settlement Stipulation on March 26,
2009. The Third Circuit Court of Appeals entered a judgment
enforcing the Board’s Order on September 23, 2009.
Subsequent Events: the Summer of 2009
On June 19, 2009, the Union filed an unfair labor practice
charge, docketed as Case 04–CA–036852, and a subject of the
consolidated complaint issued in this dispute. The charge stat-
ed as its basis, in relevant part:

On or about December 26, 2008 the above Employer imple-
mented an [i]ncrease to [e]mployee health [c]are
[c]ontributions without bargaining and providing information
to the below [c]ertified Union.

At a bargaining session on July 7, 2009, the Union an-
nounced that it was no longer willing to meet with the partici-
pation of a Federal mediator. The next day, July 8, the Union,
through Frank Bankard, sent Quality Roofing a letter directed
to Ross Cooper.
This letter expressed frustration with the course of bargain-
ing on health benefits and with the information provided to the
Union. It requested additional information. In addition, the
letter stated:

We further believe that Federal Mediation has not been useful
and Mediator[‘s] time can be better served in other matters,
hence we will not be bargaining with Federal Mediation going
forward.
The Union offered to meet for bargaining “for N.
Wales” the week of July 20.
QUALITY ROOFING SUPPLY CO. 793

The Respondent replied by letter dated the next day, July 8,
2009. In the letter to Bankard, Cooper responded to many of
the issues explicitly and implicitly raised by Bankard’s letter.
Cooper declared that the parties were at impasse, as they were
unable to agree on a gap in the parties’ positions over health
care costs. Despite declaring impasse, Ross added that “I want
to make clear that we remain willing to meet, as we truly desire
to reach agreement. However, Board law is quite clear that we
do not have to meet simply to meet, after legitimate impasse
has been reached.”
Cooper added:

As for meeting logistics and timing, pursuant to the
first paragraph of the January 22, 2009 Interim Agreement
(attached), the union is bound contractually at this time to
meet at FMCS in Philadelphia before the Federal media-
tor. As we mentioned yesterday, we are not available the
week of July 20, but will hold August 5, 2009.

Turning to the issue raised in Bankard’s letter about the Jan-
uary 2009 increase in health care contributions, Cooper wrote:

As to the 2009 health care contributions, the union
filed a charge on that issue on December 29, 2008 (at-
tached). The union was required to withdraw that charge
‘with prejudice’ in paragraph 4 of the February 4, 2009
settlement agreement (attached). The charge was dis-
missed by the Board on February 5, 2009 (attached).
Thus, despite that we believe we bargained to impasse late
last year on that issue, we do not believe that the union
may re-raise this claim. This issue already is before the
Board in any event. If you think I am missing something
with respect to the withdrawal of that charge, please feel
free to clarify.

Bankard responded by email, the next day July 9. His letter
defended the Union’s proposals, and rejected the claim of im-
passe on, stating, “I want to put emphasis that in no way do we
believe we are at impasse on any matter.” With regard to
health care, Bankard asserted that “we have not even discussed
your [h]ealth care plan because information remains absent
[that is] needed to bargain.”
Bankard’s letter also stated that the Employer should “accept
this notice, as written notice,” from the Union “to terminate the
Interim Agreement. . . . Also we feel as stated, written and
verbally, being force[d] to meet with a Mediator is an Unfair
Labor Practice.”
Analysis
Based on the stipulations received from the Respondent and
the General Counsel, these cases raise two issues for resolution.
First, in Case 04–CA–036852, the Respondent defends
against the General Counsel’s claim that it unlawfully and uni-
laterally raised health care premiums on January 3, 2009, with
the contention that the Union waived the right to file a charge
on this matter. In making this claim, the Respondent contends
that the charge filed by the Union on December 29, 2008—
alleging that Quality Roofing had prematurely declared impasse
on the subject of health care and without providing requested
information (Case 04–CA–036509)—was withdrawn with prej-
udice pursuant to the non-Board settlement agreement between
the Union and Quality Roofing. According to the Respondent,
the withdrawal of this charge precluded the Union from filing a
later charge over the Respondent’s unilateral implementation of
changes in health care premiums.
Second, in Case 4–CA–36879, the Respondent defends
against the General Counsel’s claim that it unlawfully refused
to bargain with the Union from July 9 to August 10, 2009, with
the contention that the Union’s declaration that it would no
longer meet with the Federal mediator privileged its refusal to
meet. In asserting this defense, the Respondent relies solely on
the terms of the Interim Agreement executed between the Un-
ion and Quality, which provided for the parties to utilize a Fed-
eral mediator in their negotiations. The Respondent contends
that the Interim Agreement privileged its refusal to meet, in the
absence of a Federal mediator, until 30 days after the Union
provided notice of an intent to terminate the Interim Agree-
ment, in accordance with the agreement’s termination provi-
sion.
1. The unilateral implementation
It is undisputed that, effective January 3, 2009, Quality
Roofing implemented a unilateral change, without providing
the Union appropriate notice and opportunity to bargain, and
without the Union’s consent, in a mandatory subject of bargain-
ing, specifically, the premium paid by employees for health
insurance. Quality Roofing further concedes that when it im-
plemented the health care premium increases, the Union and
Quality Roofing had not reached an overall bargaining impasse
in their collective-bargaining negotiations.
Such a unilateral implementation is an elementary, and
straightforward violation of Section 8(a)(5) of the Act. “[F]or it
is a circumvention of the duty to negotiate which frustrates the
objectives of § 8(a)(5) much as does a flat refusal.” NLRB v.
Katz, 369 U.S. 736, 743 (1962); United Cerebral Palsy of New
York City, 347 NLRB 603, 606 (2006).6 Subject to some ex-
ceptions not relevant here,

when, as here, the parties are engaged in negotiations, an em-
ployer’s obligation to refrain from unilateral changes extends
beyond the mere duty to give notice and an opportunity to
bargain; it encompasses a duty to refrain from implementation
at all, unless and until an overall impasse has been reached on
bargaining for the agreement as a whole.

Bottom Line Enterprises, 302 NLRB 373, 374 (1991) (footnote
omitted), enfd. mem. 15 F.3d 1087 (9th Cir. 1994). Accord:
RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995); Inter-
mountain Rural Electronics, Inc., 305 NLRB 783, 786 (1991),
enfd. 984 F.2d 1562 (10th Cir. 1993).
Quality Roofing offers the following affirmative defense:
Quality Roofing asserts that the General Counsel is barred from
prosecuting this violation because, in the Union and Employ-

6 It is also, derivatively, a 8(a)(1) violation, “the rationale therefore
being that an employer’s refusal to bargain with the representative of
his employees necessarily discourages and otherwise impedes the em-
ployees in their effort to bargain through their representative.” Tennes-
see Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th
Cir. 1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
er’s February 2009 non-Board settlement agreement, the Union
agreed that it would “inform” the Region that it was “withdraw-
ing all unfair labor practice charges . . . with prejudice.” The
Union, which, in fact, cannot inform the Regional Director that
it is withdrawing pending charges, but needs the Regional Di-
rector’s permission to withdraw pending charges, made such a
request on February 4, 2009, requesting that the Region “with-
draw, with prejudice, all [c]harges and [a]ppeals in relation[ ] to
Quality Roofing as per the Settlement Agreement.” By letter
dated February 5, 2009, the Regional Director advised the Re-
spondent’s counsel that “the Charging Party’s request to with-
draw the charges in the subject cases has been approved.” One
of the withdrawn charges, Case 04–CA–036509, filed Decem-
ber 29, 2008, alleged that Quality Roofing had, in violation of
the Act, “declared impasse on health care” on or about Decem-
ber 22, 2008.
The Respondent asserts that the Union’s withdrawal of the
charge in Case 04–CA–036509, as part of the Employer-Union
non-Board settlement, bars prosecution by the General Counsel
of Quality Roofing’s subsequent unilateral change in health
care premiums, based on a new charge filed by the Union.
In Auto Bus, Inc., 293 NLRB 855, 856 (1989), the Board re-
affirmed its longstanding view that a non-Board settlement
between a charging party and a respondent does not limit the
Regional Director’s discretion to prosecute based on a new
charge filed by the same charging party, even when the new
charge alleges the same misconduct by the same respondent.
“In the absence of a Regional Director signing or approving a
settlement agreement, any such agreement between a charging
party and a respondent which resulted in the withdrawal of the
charge is viewed by the Board as a private arrangement which
does not estop the Regional Director from proceeding on any
new charges alleging the same conduct as the withdrawn charg-
es.” Id.; Quinn Co., 273 NLRB 795, 799 (1984); John F. Cu-
neo Co., 152 NLRB 929, 931 fn. 4 (1965). These cases would
seem to dictate the outcome here.7
However, in Septix Waste, Inc., 346 NLRB 494 (2006), a
Board majority agreed that a union’s stipulation with an em-
ployer that the union “resigns all claims made or that could
have been made to this date,” waived 8(a)(1) allegations based

7 Quality Roofing points to the Region’s involvement in crafting
some of the terms of the non-Board settlement and contends that this
rendered the non-Board settlement “approved” by the Region. In Auto
Bus, the Board considered and rejected just such an argument. The
Board found that such cooperation and consultation with the Region
does not constitute “approval” of the non-Board settlement and is “im-
material” to the Region’s right to prosecute refiled charges. Id. at 856
(Board agent’s “involve[ment] in the settlement negotiations that led to
the withdrawal off the charge . . . is immaterial”). A non-Board private
party settlement is an alternative to a settlement to which the Region is
a party. Non-Board private settlements typically contain terms that
would not be (or lacks terms that would preclude the settlement from
being) approved by the Regional Director. Still, most parties are will-
ing to negotiate with the Region’s representatives for assurances that
the Region will permit withdrawal of the pending allegations as part of
the non-Board settlement. This is no small matter but the Region is not
a party to and cannot enforce the terms of a non-Board settlement.
Conversely, and reasonably, the Region is not bound by a non-Board
settlement.
on a subsequent amended charge filed by the union which in-
cluded 8(a)(1) allegations based on facts existing as of the date
of the stipulation. Citing the Board’s longstanding policy to
favor private agreements, the Board declined to countenance
what it viewed as an effort by the union to “attempt[ ] to cir-
cumvent” its agreement by advancing allegations that it had
stipulated it had “resigned.” The Board ruled that the parties’
stipulated settlement met the standards for Board approval set
forth in Independent Stave Co., 287 NLRB 740, 741 (1987),
and dismissed the complaint allegations.
The Board majority in Septix asserted that the precedent rep-
resented by Auto Bus, was not being overruled or ignored, but
“inapposite.” According to the majority,

[t]hose cases . . . simply hold that the General Counsel’s ap-
proval of a request to withdraw a charge, which request is
based on a private party settlement, does not estop the General
Counsel from later prosecuting those same matters under the
aegis of a new charge. However, these cases do not resolve
the separate issue of whether the Board should honor the set-
tlement under Independent Stave.

I am unsure where this leaves Board precedent on the issue.
Septix appears to state that it is discretionary, but preferable, for
the Board chooses to dismiss allegations pled by the General
Counsel that were covered or waived by a private settlement
agreement between the charging party and the respondent. The
Board in Septix appears to characterize Auto Bus (and the con-
sistent line of cases it represents) as holding simply that the
General Counsel may proceed to issue a complaint notwith-
standing a private settlement of the same charges. The Board
in Septix seems to divest Auto Bus of its (clear, to my mind)
substantive implications that once such allegations are pled by
the General Counsel they should be considered on their merits
by the Board, without regard to whether the same allegations
were the subject of a private party settlement.
However, this problem need not be resolved here. Under ei-
ther Septix or Auto Bus, the issue does not arise unless the alle-
gation on which the General Counsel is proceeding was waived
by the parties’ private settlement. Here, the Respondent claims
that is the case, but it is not.
In the non-Board settlement, the Union agreed, effectively,
to withdraw “with prejudice” all pending unfair labor practice
charges. This included one alleging that the Employer violated
Section 8(a)(5) of the Act because “[o]n or about December 22,
2008” the Respondent “declared impasse on health care,” even
though it had not provided the Union “requested information,”
or “adequate time and information to formulate intelligent pro-
posals,” or provided an adequate room for the union bargaining
team on December 12.
In other words, the charge alleged that on or about December
22 there was a declaration of impasse on health care by the
Respondent, and that it was false and, under the circumstances,
a violation of its bargaining obligation under the Act.
Accepting, arguendo, that to withdraw such a charge “with
prejudice” is to withdraw the charge “in a way that finally dis-
poses of a party’s claim and bars any future action on that
QUALITY ROOFING SUPPLY CO. 795
claim,”8 the Union agreed in the settlement not to refile a sub-
sequent unfair labor practice charge alleging as its basis a false
declaration of impasse on health care on or about December 22,
2008.
But the Union’s subsequent charge, the basis of the com-
plaint allegations herein, did not assert that a false claim of
impasse—on health care, or as to negotiations overall—was
made on or about December 22, 2008, or any other date. Ra-
ther, the new charge alleged that “[o]n or about December 26,
2008,” the Respondent unlawfully “implemented an increase”
in health care premium contributions, in violation of its bar-
gaining obligations. To be sure, the current charge, like the
withdrawn charge concerned the subject of health care, and
alleged a bargaining violation. But waivers do not sweep so
broadly or vaguely in Board precedent. Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 708 (1983) (“we will not infer from
a general contractual provision that the parties intended to
waive a statutorily protected right unless the undertaking is
‘explicitly stated’. More succinctly, the waiver must be clear
and unmistakable”).9
The current claim is a different one from the withdrawn
claim, involving different facts and elements of proof. The
withdrawn charge contained no claim of an unlawful unilateral
change in health care, or any other subject, and is alleged to
have occurred 4 days earlier, and what is more, the resulting
complaint allegation and the stipulated facts demonstrate that
the unilateral change actually occurred on January 3, 2009,
more than 1 week after the facts alleged in the withdrawn and
settled charge. On its face, the claim that the Respondent made
an unlawful unilateral change is a different claim than the claim
that the Respondent falsely claimed impasse on health care.
The Respondent argues that, having been withdrawn with
prejudice, we must analyze the validity of the new charge as if
the allegations of the withdrawn charge had been conclusively
adjudicated in the Respondent’s favor. Assuming arguendo,
this is a correct mode of analysis, it does not advance the Re-
spondent’s position.
Under the Respondent’s contention, we must analyze the
current charge by accepting that there was no declaration of
impasse regarding health care on or about December 22, or that
there was but it was not false, but rather, a true reflection of the
parties’ bargaining. In any event, the Respondent contends that
there was no illegality. But none of these suppositions under-
mines the current charge or complaint allegation at issue. Cer-
tainly, if there was no declaration of impasse on health care on

8 Black’s Law Dictionary 1633 (8th Ed. 2004).
9 “To meet the ‘clear and unmistakable’ standard, the contract lan-
guage must be specific, or it must be shown that the matter claimed to
have been waived was fully discussed by the parties and that the party
alleged to have waived its rights consciously yielded its interest in the
matter.” Allison Corp., 330 NLRB 1363, 1365 (2000); Georgia Power
Co., 325 NLRB 420, 420–421 (1998) (“either the contract language
relied on must be specific or the employer must show that the issue was
fully discussed and consciously explored and that the union consciously
yielded or clearly and unmistakably waived its interest in the matter”),
enfd. 176 F.3d 494 (11th Cir.), cert. denied 528 U.S. 1061 (1999); Lear
Siegler, Inc., 293 NLRB 446, 447 (1989) (waivers of employee rights
must, however, be explicitly stated, clear and unmistakable).
or about December 22, the withdrawn charge is an irrelevancy.
But even if there was an impasse regarding health care on or
about December 22, and even if Quality Roofing accurately
declared that there was one then, such findings would not queer
the current complaint allegations.
First, under the rule of Bottom Line Enterprises, supra, an
impasse on the issue of health care does not justify the imple-
mentation of a unilateral change in health care premiums. A
lawful unilateral implementation requires that “an overall im-
passe has been reached on bargaining for the agreement as a
whole” (Bottom Line Enterprises, supra). The Respondent has
stipulated that when it unilaterally implemented the premium
changes, the parties “had not reached an overall impasse in
bargaining.” There are limited exceptions to the Bottom Line
rule, but the Respondent does not contend, and there is no evi-
dence to support the contention if it did, that any exception
applies here.
Second, even as to the alleged December 22 impasse on
health care—itself insufficient to justify a unilateral implemen-
tation—there is no evidence that this limited impasse was in
effect on January 3, 2009, the date of the unilateral implemen-
tation. The Respondent admits that effective January 3, 2009,
“it implemented these [health care premium increases] without
affording the Union sufficient opportunity to bargain them, and
that the Union did not consent to these changes before they
were implemented on January 3, 2009.” That does not sound
like an impasse, even as to the limited subject of health care.
The most that can be said on this record and accepting the Re-
spondent’s assumptions, is that when the Respondent unilater-
ally implemented, the parties had once been at impasse on
health care, but it has not been shown that they were still at
impasse on health care on January 3, 2009, when the premiums
were implemented. The withdrawn charge provides no cover
for the January 3, 2009 implementation.10
Based on the record admissions, stipulations, and the with-
drawal of the prior charge with prejudice, the most that can be
said is that at the time of the unilateral implementation, there

10 Notably, although we are dealing with something of a legal fic-
tion, at least with regard to the alleged health care impasse on Decem-
ber 22, a change from impasse to no impasse is not unusual. “As a
recurring feature in the bargaining process, impasse is only a temporary
deadlock or hiatus in negotiations ‘which in almost all cases is eventu-
ally broken, through either a change of mind or the application of eco-
nomic force.’” Charles D. Bonanno Linen Service v. NLRB, 454 U.S.
404, 412 (1982), quoting, Charles D. Bonanno Linen Service, 243
NLRB 1093–1094 (1979). Notably, even where implementation is
lawful because the parties are at an overall bargaining impasse, once
the impasse ceases to exist, the duty to bargain and the prohibition on
unilateral implementation are revived. Richmond Electrical Services,
348 NLRB 1001, 1003–1004 (2006) (“A bargaining impasse merely
suspends, rather than obviates, the duty to bargain, however, and a
proposal that breaks a bargaining impasse revives the parties’ duty to
bargain. Therefore, if the Union broke the bargaining impasse after the
Respondent’s December 30 declaration, the Respondent’s January 12,
2004 unilateral implementation of its bargaining proposals would have
been unlawful.”) (citation omitted); Jano Graphics, Inc., 339 NLRB
251 (2003) (unilateral implementation violates Sec. 8(a)(5) even when
the parties have reached impasse, if at the time of implementation the
impasse no longer exists).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
had recently been an impasse on the limited subject of health
care. But by the Respondent’s own admission, at the time of
the unilateral implementation, the parties were not at an overall
impasse, and had not sufficiently bargained over the health care
proposals that were the subject of the implementation. Such an
implementation is a violation of the Act.
I would add that this outcome reflects not a technical appli-
cation of the parties’ admissions and stipulations, but the
recognition that there was, in fact, a violation of the Act here.
And there is no grounds for the Board to strain to broaden the
scope of an alleged waiver of the right to use the Board’s pro-
cesses to sweep any broader than it reads. At most, the Union
waived the right to file a charge alleging that the Respondent
falsely declared impasse as to health care on December 22.
Nothing more can be read into the Union’s withdrawal of that
charge “with prejudice.”
2. The refusal to meet July 9 to August 10, 2009
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of his employees.” 29 U.S.C. § 158(a)(5).
Section 8(d) of the Act defines the duty to bargain collectively
as “the performance of the mutual obligation of the employer
and the representative of the employees to meet at reasonable
times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment.”
The refusal to meet and bargain is a “per se” violation of the
Act, and proof of “bad faith” or other subjective intent is un-
necessary. As the Supreme Court explained in the seminal case
of NLRB v. Katz, supra at 742–743, Section 8(a)(5), as defined
in Section 8(d), “clearly . . . may be violated without a general
failure of subjective good faith; for there is no occasion to con-
sider the issue of good faith if a party has refused even to nego-
tiate in fact—‘to meet * * * and confer’—about any of the
mandatory subjects.” (Court’s emphasis and asterisks.)
The General Counsel alleges that Quality Roofing unlawful-
ly refused to bargain between July 9 and August 10, 2009. It is
undisputed that Quality Roofing and the Union were under a
duty to bargain collectively during this period. It is undisputed
that the Union offered to meet to bargain, and that Quality
Roofing refused to meet to bargain during this period. Quality
Roofing’s refusal was based on the Union’s refusal to meet
with a mediator present.
Of course, it is settled that, as a general rule, the presence of
a mediator is not required for the duty to bargain to be in effect.
Indeed, the demand that a mediator be utilized in negotiations is
a permissive subject of bargaining

and may not be insisted upon
as a condition of bargaining or justify a refusal to meet.11

11 Success Village Apartments, 347 NLRB 1065, 1068 (2006) (Alt-
hough parties may voluntarily agree to engage in mediation as a means
of collective bargaining, the use of mediation as a bargaining process is
a permissive subject of bargaining, and a party may not insist on media-
tion, much less on a particular mediation format, to the point of im-
passe.); Kurdziel Iron of Wauseon, 327 NLRB 155, 162 (1998) (re-
spondent’s insistence on the presence of a mediator at bargaining ses-
sions constituted a refusal to meet and bargain), enfd. 208 F.3d 214 (6th
Cir. 2000); Riverside Cement Co., 305 NLRB 815, 818–819 (1991),
enfd. mem. 976 F.2d 731 (5th Cir. 1992).
But while no party can insist on the presence of a mediator
as a condition of bargaining, as with other permissive subjects
of bargaining, the parties are free to bargain about and reach
agreements regarding the use of a mediator in negotiations.
Quality Roofing contends that there was an agreement by the
parties to bargain exclusively with a mediator for the term of the
Interim Agreement. In other words, a contractual promise that
encompassed an agreement to bargain with a mediator and an
agreement not to negotiate without one, as long as the Interim
Agreement was in effect. The Interim Agreement, by its terms,
was terminable by either party upon 30 days notice.
The first point to be made is that the General Counsel’s re-
sponse to the Respondent’s position is unsatisfactory. The
three “unlawful-insistence-on-the-use-of-a-mediator” cases
relied upon by the General Counsel12 stand only for the propo-
sition that use of a mediator in negotiations is a permissive
subject of bargaining and, therefore, as a general matter, a party
violates the Act if it refuses to bargain in the absence of a me-
diator. Contrary to the suggestion of the General Counsel, none
of these cases (Success Village Apartments, supra; Kurdziel
Iron, supra; Riverside Cement Co., supra), involve an agree-
ment by the parties not to negotiate in the absence of a mediator
for a defined period of time. Nor do these cases stand for the
proposition that an agreement to bargain only with a mediator
may be breached with impunity, leaving the other party without
recourse in bargaining.
The General Counsel advances precisely this latter claim.
Relying on the Supreme Court’s decision in Allied Chemical &
Alkali Workers of America v. Pittsburgh Plate Glass Co., 404
U.S. 157, 185–188 (1971), the General Counsel takes the view
that a party that has entered into agreements on ground rules for
bargaining is free (as far as the Board and the Act are con-
cerned) to flout them for any reason at any time for any motive
or purpose. It sounds too wrong to be true, and it is.
In Pittsburgh Plate Glass, the Supreme Court refused to en-
force a Board order finding that an employer’s change in bene-
fits for current retirees, although in violation of contractual
agreement, was violation of Section 8(a)(5) of the Act. The
Court held that because benefits for current retirees is a permis-
sive subject of bargaining, an employer’s unilateral change—in
essence, its breach of contract—was not remediable under the
Act. Since the Court’s ruling in Pittsburgh Plate Glass, the
Board has consistently held that “[a]lthough it may well be a
breach of contract actionable under Section 301 of the Labor
Management Relations Act, it is not a violation of Section
8(a)(5) to refuse to comply with a provision in a collective-
bargaining agreement that concerns a permissive subject of
bargaining.” Supervalue, Inc., 351 NLRB 948, 950 (2007),
citing Pittsburgh Plate Glass Co., supra; KFMB Stations, 343
NLRB 748, 752 (2004) (“In [Pittsburgh Plate Glass], the Su-
preme Court specifically held that parties to a collective-
bargaining agreement can unilaterally rescind permissive terms
of the contract at any time without violating Section 8(a)(5) of
the Act.”).

12 Success Village Apartments, supra; Kurdziel Iron, supra; Riverside
Cement Co., supra.
QUALITY ROOFING SUPPLY CO. 797
But the issue here is not whether the Union has violated Sec-
tion 8(a)(5) of the Act by breaching the Interim Agreement.
The issue is whether the duty to bargain has been limited to a
duty to meet only with a mediator and, if so, whether a party
(here, the employer) can adhere to the ground rules and refuse
to bargain without one. It seems to me that governing the pro-
cess of collective bargaining is a key function of the Board—
arguably, the key function—and I reject the General Counsel’s
essential contention that the Board simply has no interest in a
party’s flouting of bargaining ground rules because the subject
is permissive. That is why, in prior cases, whether a party can
require the other party to abide by ground rules, and refuse to
bargain if they do not, depends. It depends on the totality of the
circumstances and whether permissive agreements that made
sense for bargaining when entered into, have come to thwart or
become a stranglehold on the bargaining process at a later
date.13

13 Adrian Daily Telegram, 214 NLRB 1103 (1974) (adherence to ne-
gotiating “ground rules” may not be insisted upon to the point that it
undermines the negotiating process or is relied upon by one party to
justify bad-faith bargaining); Detroit Newspapers, 326 NLRB 700, 704
fn. 11 (1998) (dismissing allegation that employer violated Section
8(a)(5) by failing to adhere to parties’ agreement to reserve certain
bargaining issues for joint bargaining, as Board is committed to
“providing parties with the flexibility to enter into and deviate from
new bargaining formats without the risk of being found to have violated
their obligation to bargain in good-faith” as this “facilitates effective
bargaining and encourages productive experimentation”).
However, other cases, viewing the matter in the full context of nego-
tiations, have found that a party’s refusal to adhere to ground rules
provides an indicia of unlawful bad faith bargaining. Harowe Servo
Controls, 250 NLRB 958, 959 (1980) (Board finds that “[r]epudiating
the agreement to bargain about and settle noneconomic matters before
negotiating the economic provisions of a collective-bargaining agree-
ment” is an indicia of bad faith bargaining); Natico, Inc., 302 NLRB
668 (1991) (parties’ agreement to implement an incentive wage pro-
posal for a trial period in order to enable both parties to determine
whether it should be included in the collective-bargaining agreement
was an agreement by the parties on how to proceed with negotiations
that was not subject to repudiation); Central Maine Morning Sentinel,
295 NLRB 376 (1989) (employer unlawfully unilaterally eliminated
established wage increase where “the parties had agreed on ground
rules under which bargaining over economic issues would be postponed
until after noneconomic issues were resolved, and the Respondent did
not seek to bargain over a change in those ground rules”).
In addition, the Board holds that a union’s failure to abide by an
agreement to submit a collectively-bargained agreement to ratifica-
tion—a permissive subject of bargaining—is a defense to 8(a)(5)
charges alleging an employer’s refusal to execute an agreed-upon con-
tract. Hertz Corp., 304 NLRB 469 fn. 4 (1991) (“It is true that ratifica-
tion is only a permissive subject of bargaining, and that under the au-
thority of [Pittsburgh Plate Glass], the Union’s breach of an agreement
to obtain employee ratification may not be an unfair labor practice.
However, it does not follow that the Respondent violated Section
8(a)(5) by thereafter insisting on compliance with the ratification
agreement” and refusing to execute the contract without ratification);
Beatrice/Hunt Wesson, Inc., 302 NLRB 224, 225 (1991) (“where there
is evidence that the union voluntarily submitted to negotiation, and the
parties reached ‘express’ agreement on, any of the details of ratifica-
tion[, u]ntil such time as the union conducts a ratification vote in ac-
cordance with the parties’ agreement, an employer is not obligated
The Board’s interest in setting a policy that permits flexibil-
ity in the bargaining process is clear. An absolute rule that
ground rules once agreed to, must be adhered to no matter
what, makes no more sense than the position taken by the Gen-
eral Counsel here that adherence to ground rules is an irrele-
vancy to the Board because they are permissive.
However, in this case, I do not think it is necessary to deter-
mine whether a failure to adhere to ground rules developed by
the parties justified a refusal to bargain by the employer. It is
not necessary to treat with these issues, as there is a threshold
problem with the Respondent’s defense.
The Respondent has (with the concurrence of the General
Counsel and over the objection of the Union), based its defense
solely on the terms of the Interim Agreement. As stated in the
stipulation of facts (numbered par. 22):

From July 9, 2009 through August 10, 2009, Respondent , re-
lying exclusively on the terms set forth in paragraphs 1 and 5
of the Joint Exhibit 21 [the Interim Agreement], refused to
meet with the Charging [P]arty without the participation of a
federal mediator.

Contrary to the assertions of the Respondent, the terms of the
Interim Agreement are not sufficient to evidence that the Union
waived the statutory right it otherwise had to demand bargain-
ing without presence of a federal mediator.
First, it is important to reiterate that the Board’s waiver
standard is the appropriate lens through which to view this
issue. The issue is whether, through signing the Interim
Agreement, the Union has agreed to limit the scope of its statu-
tory right to demand that the Respondent meet with it to collec-
tively bargain, specifically, limited that right to the right to
meet only with a Federal mediator present. A union certainly
could waive or limit its statutory rights to bargain in that man-
ner. But, as noted, above, in order to find an agreement to
waive a statutory right, the Board requires that the contractual
language at issue—or other evidence—demonstrates a “clear
and unmistakable” waiver of statutory rights. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (“we will not
infer from a general contractual provision that the parties in-
tended to waive a statutorily protected right unless the under-
taking is ‘explicitly stated’. More succinctly, the waiver must
be clear and unmistakable”).

Proof of a contractual waiver is an affirmative defense and it
is the Respondent’s burden to show that the contractual waiver
is explicitly stated, clear and unmistakable. Allied Signal Aero-
space, 330 NLRB 1216, 1228 (2000), review denied 253 F.3d
125 (2001); General Electric, 296 NLRB 844, 857 (1989),
enfd. mem. 915 F.2d 738 (D.C. Cir. 1990).
In this case the Respondent, by stipulation with the General
Counsel, has limited the evidence in support of its claim to the
terms of the Interim Agreement. Any “clear and unmistakable”
waiver of the Union’s right to demand bargaining must be
found therein.
The relevant portion of the Interim Agreement states:

under Section 8(d) to execute the contract”) (Chairman Stephens con-
curring).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
Bargaining Meeting Logistics. The parties agree to meet at
FMCS in Philadelphia during business hours (9 AM to 5 PM),
unless the parties mutually agree to extend or shorten the time
based on progress of the negotiations. The parties agree to
utilize the FMCS mediator during their negotiations. The
Company will arrange for Jeff Metz to be present for bargain-
ing sessions. The parties agree to discuss all four unionized
branches at the bargaining sessions and bargain for one col-
lective-bargaining agreement which will apply to all four un-
ionized branches (except for separate wage schedules).

These are entirely reasonable logistics. But the language of
the agreement at issue in this case—“The parties agree to uti-
lize the FMCS mediator during negotiations”—is extremely
limited in its force as a basis for finding the scope of waiver
advanced by the Respondent. This sentence says nothing about
only meeting in the presence of the FMCS mediator. It says
nothing about requiring the parties to use a mediator to conduct
each and every bargaining session. The operative phrase says
that the parties agree to utilize the FMCS mediator during ne-
gotiations. They did. The mediator was “utilized” frequently
during the negotiations, but there is no explicit requirement that
he be at every bargaining session, or that the parties are not
bound to bargain in his absence. Such an explicit and unmis-
takable agreement is not found in this language. I fully accept
that the Respondent’s contention could conceivably be gleaned
from or read into the Interim Agreement with supporting parol
evidence, however it is not explicit and it is not clear and un-
mistakable based solely on the language of the Interim Agree-
ment. That is what would be required to find in the Respond-
ent’s favor.
Accordingly, based on the evidence that the General Counsel
and the Respondent stipulate is the only evidence to which I
must look, the Respondent has failed to prove that the Union
waived its right to demand bargaining sessions without a medi-
ator present.14
I find that the Respondent unlawfully refused to bargain with
the Union from July 9 through August 10, 2009.
Finally, I address the Respondent’s contention that this mat-
ter is de minimus, involving a refusal to bargain for only a few
weeks, most of which the Respondent was claiming unavaila-
bility for bargaining, in any event. The Respondent’s conten-
tion has an initial, superficial appeal. After all, the parties re-
sumed bargaining August 10, 2009, less than a week after the
August 5 date that the Respondent says would have been the
first time it was available to bargain. There have been no

14 I note, but do not find probative, the fact that when confronted
with Quality Roofing’s refusal to bargain without a mediator as long as
the Interim Agreement was in effect, the Union then moved to provide
the 30-day notice to terminate the Interim Agreement. I find, contrary
to the arguments of the Respondent, that the Union’s conduct was not
an admission or even evidence in favor of Quality Roofing’s position.
Rather, faced with Quality Roofing’s refusal to bargain, and given that
the unfair labor practice proceedings are now, a year later, far from
complete, the Union’s notice of termination is reasonably understood as
an accommodation to the Respondent’s (unlawful) position lest, con-
sistent with its position, the Respondent would still be refusing to bar-
gain to this day.
claims by the General Counsel that the Respondent has subse-
quently refused to bargain. Yet, the matter is not trivial. For
one, the short duration of the refusal to bargain occurred only
because the Union acceded to the Employer’s demand to termi-
nate the Agreement. Had the Union stood on principle, as the
Employer did, the refusal to bargain might be continuing to this
day. Moreover, the dispute involves a significant issue of
Board precedent regarding the effect, import, and interpretation
of bargaining ground rules and parties’ negotiating conduct.
The parties and the public should have guidance from the
Board on such matters so that in future negotiations the parties
will be able to avoid this kind of dispute.15
CONCLUSIONS OF LAW
1. The Respondent, Beacon Sales Acquisition, Inc. d/b/a
Quality Roofing Supply Co., is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Charging Party International Union of Operating En-
gineers Local 542, AFL–CIO (the Union) is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all material times the Union has been the designated
exclusive collective-bargaining representative of four bargain-
ing units of the Respondent’s employees, one located at each of
its North Wales, Eddystone, York, and Yeadon, Pennsylvania
facilities, and composed of the following employees at each
location:

All full-time truck drivers and warehouse employees, exclud-
ing all other employees, counter persons, sales representa-
tives, fleet managers, clericals, managers, professionals,
guards and supervisors as defined in the Act.

4. The Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally implementing health insurance premium
increases for its union-represented employees on or about Janu-
ary 3, 2009, during collective bargaining for a labor agreement,
without the consent of the Union and without first bargaining to
a lawful overall impasse in negotiations.
5. The Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to meet to collectively bargain with the Union
without a mediator present, from July 9, 2009, to August 10,
2009.
6. The unfair labor practices committed by the Respondent
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.

15 I decline the Respondent’s invitation to limit the finding of a re-
fusal to bargain to begin August 5, the first date that the Respondent
says it would have been available to bargain had it not been refusing to
bargain as of that date. Regardless of the speculative effects that other
logistical and scheduling issues might have had on the course of bar-
gaining, the fact is that as of July 9, the Respondent was making clear
that it refused to bargain without the mediator present. This unlawful
conduct began July 9, ended August 10, and the order should reflect it.
QUALITY ROOFING SUPPLY CO. 799
The Respondent shall reinstate and make available to em-
ployees the health care insurance premiums it maintained for
employees prior to January 3, 2009. The Respondent shall
make whole the unit employees for any losses they may have
suffered as a result of the Respondent’s unilateral change in
health insurance premiums in the manner prescribed Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest computed as prescribed in New Hori-
zons, 283 NLRB 1173 (1987). The Respondent shall reimburse
unit employees for any expenses resulting from the Respond-
ent’s unilateral change to their health insurance premiums, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981), with interest as set
forth in New Horizons, supra.16
The Respondent shall bargain with the Union in the bargain-
ing units described below, with respect to wages, hours, and
other terms and conditions of employment, without regard to
whether a mediator is present in bargaining sessions.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent’s facilities or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is is-
sued to the Respondent, it shall sign it or otherwise notify Re-
gion 4 of the Board what action it will take with respect to this
decision. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed
any of the facilities involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since January 3, 2009.
The Respondent shall, within 14 days of a request, or such
additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17

16 The General Counsel contends that the Board should drop its prac-
tice of assessing simple interest on monetary remedies in favor of com-
pound interest computed on a quarterly basis. The Board has repeatedly
considered this proposition in recent cases and repeatedly declared that
“we are not prepared at this time to deviate from our current practice of
assessing simple interest.” Kane Steel Co., 355 NLRB No. 49, slip op.
at 3 fn. 2 (2010) (not reported in Board volumes); International Ser-
vices, 355 NLRB No. 47, slip op. at 2, fn. 4 (2010) (not reported in
Board volumes). Given these, and many other recent such pronounce-
ments, I am not inclined at this juncture to depart from the Board’s
traditional interest formula with regard to computation of backpay in
this matter.
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, Beacon Sales Acquisition, Inc. d/b/a/ Qual-
ity Roofing Supply Co., North Wales, Eddystone, York, and
Yeadon, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing or failing to bargain with the Union, in the ab-
sence of a mediator in bargaining sessions, as the exclusive
representative of employees in the following units, concerning
terms and conditions of employment:

a unit at each of Respondent’s North Wales, Eddystone, York,
and Yeadon, Pennsylvania facilities composed of

All full-time truck drivers and warehouse employees, exclud-
ing all other employees, counter persons, sales representa-
tives, fleet managers, clericals, managers, professionals,
guards and supervisors as defined in the Act.

(b) Unilaterally implementing health insurance premium
changes for its union-represented employees during collective
bargaining for a labor agreement, without the consent of the
Union or without first bargaining to a lawful overall impasse in
negotiations.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes of the Act.
(a) Reinstate and make available to employees the health
care insurance premiums maintained for and available to em-
ployees immediately prior to January 3, 2009.
(b) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this Decision and
Order, for any losses they suffered or expenses they incurred as
a result of the Respondent’s unilateral change in its health care
insurance premiums.
(c) Meet and bargain, upon request, with the Union as the
exclusive bargaining representative for its union-represented
employees in the bargaining units described above, regarding
terms and conditions of employment, without regard to the
participation or presence of a mediator at bargaining sessions.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, make available at a reasonable place designated by the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records, including an electron-
ic copy of the records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cilities in North Wales, Eddystone, York, and Yeadon, Penn-
sylvania, copies of the attached notice marked “Appendix.”18

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed any of the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at that facility at any time since
January 3, 2009.
(f) Within 21 days after service by the Region, file with the
Regional Director of Region 4 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply with the provi-
sions of this Order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT unilaterally implement changes to your health
insurance premiums during collective bargaining without the
consent of the Union or without bargaining to an overall bar-
gaining impasse.
WE WILL NOT fail or refuse to bargain with the Union because
a mediator is not present in bargaining sessions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Federal law.
WE WILL reinstate the health insurance premiums that were
maintained and available to you immediately before January 3,
2009.
WE WILL make you whole, with interest, for any losses you
suffered or expenses you incurred as a result of our unilateral
change in health care insurance premiums.
WE WILL bargain with the Union without insisting or condi-
tioning bargaining on the presence of a mediator.

BEACON SALES ACQUISITION, INC. D/B/A QUALITY
ROOFING SUPPLY COMPANY