Reliable Roofing Co., Inc.

National Labor Relations Board - Board DecisionsDec 4, 1979

246 N.L.R.B. 716 (N.L.R.B. 1979)

D)E(CISIO)NS OF NA'IIONAI. I.ABOR REL.AI I)NS BOARI) Reliable Roofing Company, Inc. and L)ocal Union No. 183, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL- CIO. Case 7 CA 14735 December 4. 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANDI) MI:MBRS Jli NK\S AND PNI II.0 On February 23, 1979. Administrative aw Judge Marion C. Ladwig issued the attached Decision dis- missing this proceeding. Thereafter, the General Counsel filed exceptions 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, t and i At the hearing Respondent contested the assertion of jurisdiction based on Respondent's fiscal year ending March 31. 1977. and urged that the sub- sequent fiscal year. which included the August 1977 withdrawal from mul- tiemployer bargaining, he used. I)uring the fiscal year ending March 31. 1977. Respondent had a contract with Alstrom Construction Company ot Michigan valued in excess of $72.000. $57000 ol which was received in the 1976 77 fiscal year. Alstrom in turn purchased gls and building materials valued in excess of $50.000 directly from suppliers utside the State of Michigan. Respondent was prepared to stipulate that Alstrolm served as n- direct inflow fr the fiscal year ending March 31. 1977. I)uring the next fiscal year ending March 31. 1978. in which Respondent's gross vollume of business totaled 125.000. it was not possible according to Respondent or "the Board to show $50,000 from sources either direct r indirect from outside the State of Michigan." In asserting jurisdiction here we have relied n Respondent's fiscal ear ending March 31. 1977. as urged by the General Counsel and lound by the Administrative I.aw Judge. that is. the most recent complete fiscal year pre ceding the unfair labor practices. In (:,niled Vi~ne Worker o .Ameic Drilt 2 (Meur(y un:inng and (Con- viruction Corpouraon). 96 NI.RB 1389 1390 91 (1951) the Board stated that its jurisdictional criteria expressed in terms of annual dollar volume of husi- ness do not literally require evidentiar) data respecting any certain 12-monlh period of operation in I-rank P Slaer, dh/ia 4(me Equipmetl (omplli, 102 NI.RB 153. 161 (1953). it approved the use of the last lull calendar year preceding the ealr in which the alleged unltir labor practices occurred in Ars roo eook 'deration of Farmers. Inc . 114 NI.RB 538 (1955). a represeta;l- iton case, the Board spoke of the administrative desirability of using a recent annual period when available. which in that case was the most recent calen- dar year 1954, rather than 1955. the year of the hearing and deccsion, as to which the employer projected a drop in out-olf-state purchases In larn Blaker Restaurant nd Ralhskeller d/h/li B/akc' Rtauranl. 230 N IRB 27. 28 (1977), a complaint case, the Administrative aw ludge quoted triinil 4riostook to the effect that the Board has "relied on the experience ol an employer during the most recent calendar or fiscal slcr, or the 12-month period immediately preceding the hearing before the Board. where silch ex- perience was available." lie then conmmented: "he use of the word .r' rin the Board's opinion suggests that the Board may rely on any lone of these time periods specified fr jurisdictional purposes." 'Ihe calendar sear 1975 was used. although respondent urged the latest 12-month period of sales figures (lilr July 1975 through June 1976) presented at the September 1976 hearing. which fell below the $5(0).000 standard lfor a retail enterprise. See also The Diitriet (Court of 7enth Judicial Ditrt( of the State do Idaho (( , Food Center, In(.), 164 NL.RB 95. 96 (1967). an adsisory opinion saying the Board would have asserted jurisdiction even though gross volume lell belo, $500.000 in 1962. "the year the dispute arose" involving picketing and de- creased sales conclusions 2 of the Administrative Law Judge only to the extent consistent herewith. At issue here is union consent to withdrawal of Re- spondent from ongoing multiemployer bargaining. The Administrative Law Judge found that the Union "apparently" decided that the withdrawal of the Company's small operation did not materially affect the status of the multiemployer bargaining or the em- ployment opportunities of union members. Thus. though a charge in itself constitutes a demand to sign a contract agreed to by a multiemployer association (Preson . laskell Conmlpan,'. 238 NLRB 943. fn. I (1978)). the charge in this case, viewed as a demand to sign, was belated because of the 4 1/2 month in- terval since the contract's approval on September 7. without any intervening request to this Respondent that it sign. The Haskell case set forth pertinent Board law as follows: If union consent to withdrawal is to be im- plied. "the [union's] conduct must involve a course of affirmative action which is clearly antithetical to the [union's] claims that the employer has not withdrawn from multiemployer bargaining. Neither the Union's failure to immediately object to Respondent's with- drawal nor its failure immediately to demand Re- spondent's signature on the contract is considered an implied consent to the putative withdrawal." (238 NLRB at 948.) Respondent here may have "pro- jected" union acquiescence to its withdrawal. The Union's negotiators and officers were aware of Re- spondent's lack of work and the absence of employees just prior to the withdrawal. Also, the Union did not protest the announced withdrawal either in their con- versations with or in response to Respondent's hand- delivered letter to the Union. wherein it said: "This withdrawal from Union employment and lack of Union contract is being done for economic survival ..... Nevertheless, the record discloses no overt act on the part of the Union signifying a clear intent to acquiesce in that withdrawal. Without such consent the Company was not entitled to withdraw from the multiemployer bargaining negotiations in an un- timelv manner) Accordingly. we conclude that by withdrawing from the multiemployer association on August 224 2 We do not dopi the Administrative I.aw Judge's comment of 'inadver- lence" concerning the allegations of the complaint with respect to the unit. As we read the complaint it alleges that Respondent is bound not to with- draw recognition trom the Charging Party as the exclusive representative of ts employees in an appropriate unit since 1974. as well as not to make an untimely withdrawal friom multierployer association bargaining with the Charging Part). upon which Respondent embarked in May 1975. Prlcton Hal. el upra. (C. I('. Rel/rgeruion Serniwes. Inc, 200 NLRB 687 (1972). where the union demonstrated acceptance b bargaining sepa- rately with the wilhdrawing employers. ' The Board has recently held thati. absent unusual circumstances, any untimely attenlpt by an employer-member to withdraw withoul the consent 246 NLRB No. 118 716 RELIABI.E ROO(IN(i COMPANY, IN('. and bh refusing to sign and implement the collective- bargaining agreement reached between the tinion and the Associated Roofing Contractors of Western Michigan on August 30. 1977, effective June 1. 1977. until June 1, 1980, Respondent has engaged in. and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, and that the aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TtiF RIMI)DY Having found that Respondent has engaged in cer- tain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative ac- tion necessary to effectuate the policies of the Act. In this connection we shall order that Respondent im- mediately sign and implement the agreement reached between the Union and the Association, and give it retroactive effect to June 1, 1977, making its employ- ees whole for any loss of earnings suffered since then as a result of its failure to apply said agreement. Backpay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 5 Nothing herein is to be construed as requiring Respondent to recoup wages or benefits already received by its employees. Additionally, Re- spondent will be directed to make payments into the various funds on behalf of those employees for whom such contributions would have been made had Re- spondent not unlawfully refused to sign and imple- ment the collective-bargaining agreement. 'inl JatncAe Plastering Company.v, 226 NLRB 125, fn. 3 (1976). ORDER Pursuant to Section 1O(c) of the National Labor Relations Act. as amended, the National abor Rela- tions Board hereby orders that the Respondent. Reli- able Roofing Company, Inc.. Muskegon Heights. Michigan, its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local Union No. 183, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Associ- ation, AFL CIO. of hoth the union and the multiemployer group in itself cconstilutes a vila- lion of Sec. 8Xa)(5 of the Act as of the time of withdrawal. We so find here Teuamvst'ri Union Lvoal NoV 378 (Capial Cheirole (Co /10i mpil Aultmobile' Dealers Association]. 243 NLRB No 1086 fn. I: Cusitom Sheet :ictal & Service Co.. In.., 243 NLRB 1102, fn. 3 (1979). Chairman Fanning adheres to the view that it is the refusal thereafter i, he tound h) the collective-bargaining agreement negotialed hb, the group which is a violatiton of Act See Olvmpit A .uor ohilei Deilears. lpral at fn. 1 and cases cited therein. 5 See. generally. it Pluihlning & Heating (o. 138 NI.RB 716 (1962). (b) Refusing to sign and implement the 1977 80 collective-bargaining agreement reached between the above-named Union and Associated Roofing Con- tractors of Western Michigan. (c) In any like or related manner interfering with. restraining, or coercing employees in the exercise of their rights under the National Labor Relations Act. as amended. 2. Take the following affirmative action which will eff'ectuate the policies of the Act: (a) Forthwith sign and implement the above-de- scribed agreement and give retroactive effect thereto from June 1. 1977. (b) Make whole its employees for any loss of pay or other employment benefits which they may have suffered by reason of its refusal to sign and implement the aforesaid agreement. with interest, in the manner set forth in the section of this Decision and Order entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying. all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due under the terms of this Order. (d) Post at its Muskegon Heights, Michigan. facil- ity copies of the attached notice marked "Appen- dix."6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondents' representative. shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. I In the esent that his Order is enforced hb a Judgment ofa t nillted States Court ot Appeals, the words in the notice reading "Posted h Order of the Nat.ionll I.alh r Relations Hoard" shall read "Posted Pursuanl to a Judgment ot the nited States (Court of Appeals Fnil-rcing an Order of the ational .abor Relations Board." APPENDIX No II(,F To ENMPLOYF ES POS uID BIY ORDER OF rim NAIIONAI. LA()OR REI.AIIONS BOARD An Agency of the United States Government WI: wI.. NOI refuse to bargain with Local Union No. 183. United Slate, Tile and Composi- tion Roofers, Damp and Waterproof Workers Association, AFI.C'IO, by refusing to sign and 717 DECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD implement the 1977-80 collective-bargaining agreement between that Union and the Associ- ated Roofing Contractors of Western Michigan. WE WIl. NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act, as amended. WE wil.L forthwith sign and implement the above-mentioned agreement and give retroactive effect thereto from June 1, 1977. WE WILL make whole our employees in the bargaining unit for any loss of pay or other em- ployment benefits they may have suffered by rea- son of our refusal to sign and to implement the aforesaid collective-bargaining agreement, plus interest. RELIABLE ROOFING COMPANY, INC. DECISION STATEMENT OF THE CASE MARION C. LADWI, Administrative Law Judge: This case was heard at Muskegon, Michigan, on July 10. 1978. The charge was filed by the Union on January 5, 1978, and the complaint was issued on February 23. 1978, and amended at the hearing. Respondent Company, a party to an expired collective- bargaining agreement between an employer association and the Union, withdrew from the multiemployer bargaining relationship on August 22, 1977.' shortly before a new agreement was reached. The primary issue is whether the otherwise untimely withdrawal should be permitted be- cause of the Union's acquiescence or "unusual circum- stances," or whether the Company unlawfully failed to sign the new multiemployer agreement and unilaterally insti- tuted its own wages and working conditions, thereby refus- ing to bargain in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's brief, I make the following: FINDINGS OF FA(I I. JURISDICTION The Company, a Michigan corporation, is engaged in the construction industry, installing and servicing roofing mate- rials, at Muskegon Heights, Michigan, where during the fiscal year ending March 31 (its most recent fiscal year pre- ceding the alleged unfair labor practices) it sold goods and services to a local firm, Alstrom Construction Company. which during the same period of time purchased goods val- ued in excess of $50,000 directly from outside the State. I find that the Company was engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. I All dales are in 1977 unless otherwise stated. II. Al l.(i; E) UNFAIR I.ABOR PRA( II( IS A. Multiemp/over Bargaining The Company and five other roofing contractors were engaged in multiemployer bargaining through an informal association called the Associated Roofing Contractors of Western Michigan. Their most recent agreement with the Union, effective from June i. 1975, until June I, 1977, cov- ered a bargaining unit of all built-up journeyman roofers. apprentices, and helpers employed by the association mem- bers in a five-county area. On April 27, Company President Max Klaus and other association members met and formulated proposals which they presented to the Union on April 28. (As in the 1975 bargaining-in which Klaus participated-the association members clearly indicated their unequivocal intention of' being bound by group action in the collective bargaining). After several bargaining sessions, in which Klaus personally participated, the Association and the Union, on June 1, reached a new agreement which was ratified by the union members that same day. However, a dispute thereafter arose over interpretation of the agreement, and negotiations continued on July 19 and August 2. with Klaus in attend- ance. On August 22, Klaus informed the Union that he was withdrawing from multiemployer bargaining. Thereafter on August 30, the Association (without the Company) and the Union resolved their differences and reached an agreement, which was ratified by the union membership on September 7 and signed about September 15, effective from June I. 1977, until June 1. 1980. B. The (ompauny's Withdrawal Meanwhile, during the multiemployer bargaining, the Company did not have sufficient union work to keep its four roofing employees busy, and President Klaus was ex- pressing his fear of "going broke." In the 12-week period during the weeks ending June 4 through August 20 (see G.C. Exh. 8), there was an average of only 59 total hours of work per week for the Company's four employees (i.e.. an average of about 7-1/2 man-days of work per week or enough work to keep I-1/2 employees working full time). Finally, on August 10, when journey- man Dave Goryl was already laid off for lack of work and apprentice Lyle Gleason was being laid off for the same reason, the Union's president, journeyman Thomas Hel- ferich, asked to be laid off as well. (Helferich went to work the next day for East Muskegon Roofing, the largest em- ployer in the Association.) During the following week (end- ing August 20). there were only 20 hours of work for the remaining employee, journeyman Richard LeMieux, who was likewise laid off for lack of work. On Sunday, August 21. President Klaus telephoned Union President Helferich. As Helferich credibly testified. Klaus "asked me if I was planning to come back to work for him at Reliable Roofing Company and I told him no, I did not as long as he didn't have any more work: I needed more steady employment." Klaus told Helferich that he had called LeMieux who said "basically the same thing." (During the preceding 12 weeks Helferich and LeMieux 718 RELIABI.E ROOFING COMPANY, INC. had performed most of the available work.) Klaus then stated that "he intended to send a letter to the Union the next day dropping out of the Union." Helferich expressed no objection. On August 22. Klaus hand-delivered to the Union's busi- ness agent a letter which stated: Due to the inability of Reliable Roofing to sell its roof- ing services to union shops, combined with our lack of ability to compete in the residential market, we are forced to resign from all Union activities, pertaining to employment.... This withdrawal from Union employ- ment and lack of the Union Contract is being done for economic survival .... [Emphasis supplied.] Thereafter, the Company began hiring nonunion employees for approximately half the union scale, without any fringe benefits. The Union did not respond to the Company's withdrawal letter, did not request the Company to sign the new mul- tiemployer agreement, did not object to the Company uni- laterally establishing nonunion wages and working condi- tions, and did not seek separate bargaining with the Company. Finally, on January 5, 1978-after the Company had been working on nonunion jobs for 4-1/2 months without objection from the Union the charge herein was filed, al- leging that the Company had "refused" to sign and abide by the new multiemployer agreement. C. Contentions and Concluding Findings It is well established that an employer's withdrawal from participation in multiemployer bargaining after negotia- tions have commenced is effective only "if acquiesced in by the union" or if justified by "unusual circumstances." Hi- Way Billboards. Inc.. 206 NLRB 22 (1973), enforcement denied on other grounds 500 F.2d 181 (5th Cir. 1974). Here, the General Counsel contends that there were no unusual circumstances which justified the Company's untimely Au- gust 22 withdrawal from the multiemployer bargaining when the negotiations for the new contract were almost entirely completed, "nor is there any evidence that the Union consented to the untimely withdrawal." The Com- pany did not file a brief. (I note that the General Counsel correctly states in his brief that the associationwide bar- gaining unit is the unit covered by the agreement between the Association and the Union. and that the "entire mul- tiemployer bargaining unit" is the appropriate unit for de- termining the Union's continued majority status. However. apparently through inadvertence, the complaint alleges that the Company's employees alone constitute the recognized appropriate bargaining unit.) As held in Hi-Way Billboards. supra, 206 NLRB at 23. in cases after the lead case of Retail Associates, Inc., 120 NLRB 388, 395 (1958), "the Board has limited application of the term 'unusual circumstances' to those cases in which the withdrawing employer had been faced with dire eco- nomic circumstances, i.e., circumstances in which the very existence of an employer as a viable business entity has ceased or is about to cease." Here, the Compan claimed that its inability to sell its roofing services to union shops, and its inabilit (hbecause of union wages and benefits) to compete in the residential market. forced its withdrawal as a matter of "economic survival." However, because of the Union's conduct in response to the Company's withdrawal notice, I find it unnecessary to rule on whether the evidence establishes that the Compan','s continued existence as a viable business entity was in jeopardy. This is a unique situation in which the Union's own pres- ident voluntarily abandoned his job at the Company be- cause of lack of work, and neither he nor the Union raised any objection to this small, struggling employer withdraw- ing from the multiemployer bargaining. Union President tlelferich, who had worked more hours than any of the three other employees, had averaged less than 20 hours a week during the preceding 10 weeks that summer. On Au- gust 10, the date Helferich asked to be laid off (in order to go to work the next day for the largest employer in the Association), another employee was also laid off; and a third employee had already been laid off for lack of work. The following week the fourth employee, journeyman LeMieux, was laid off after working only 20 hours. On Au- gust 21 the company president telephoned Helferich and notified him that the Company was dropping out of the Union after learning that neither Helferich nor l.eMieux would return to work because they needed "more steady employment." Helferich expressed no objection. Thereafter. the Union continued to bargain with the Association with- out the Company's participation, reached and signed a new multiemployer agreement, and completely ignored the C(ompany not asking it either to sign the agreement or to bargain separately. Hearing no objection from the Union to its withdrawal, the Company proceeded to hire nonunion employees (for about half the union scale, without fringe benefits), and proceeded to work on nonunion jobs which the Compan was unable to perform with union employees. For the re- mainder of the year the Ulnion raised no objection. It was not until January 5. 1978 (4-1/2 months later). that the Union raised its first objection by filing the charge herein, alleging that the Company had "refused" to sign the new multiemployer contract and had "refused" to abide by its terms. Nows the complaint alleges that the Company, since its untimely withdrawal from multiemployer bargain- ing. has "failed and refused" to bargain and negotiate. has "refused to. and continues to refuse," to execute the new agreement, and "unilaterally instituted its own wages. rates of pay and terms and conditions of employment." In this unique situation, I find that the Union acquiesced in the Company's withdrawing from multiemployer bar- gaining and going nonunion. Because of the union presi- dent's personal knowledge of the Company's lack of busi- ness (with only enough work during the preceding summer months to keep 1-1/2 employees on the average working full time), the Union apparently decided that the with- drawal of the Company's small operation did not materially affect the status of the multiemployer bargaining, or the employment opportunities of the union members. I recog- nize that the Board has held that "the charge constituted a demand that the Respondent sign the contract" (see Preston Ii. Haskell (orpariw. 238 NLRB 943. fn. I (1978)). How- ever. here the charge was not filed until after the Company had been working on nonunion jobs fr over 4-1/2 months, 719 DECISIONS OF NATIONAI LABOR RELATIONS BOARD without any notice from the Union that it would be de- manding the Company to sign the new agreement and pay the union scale (about double the nonunion rate) to the nonunion employees who had agreed to work at the lower rates on the nonunion jobs, thereby undoubtedly forcing the Company into bankruptcy. The General Counsel also argues that "although the Union did not request the Re- spondent to sign the agreement, the August 22. 1977 letter made it clear that such a request would have been futile." Whether or not it would have been futile for the Union to object to the withdrawal and to insist on the Company sign- ing the new agreement, such actions on the Union's part would at least have avoided the Company's assuming from the Union's silence that it was acquiescing in the Compa- ny's withdrawing from multiemployer bargaining and oper- ating nonunion. Thus, having found that the Union acquiesced in the Company's withdrawal from multiemployer bargaining and its decision to operate nonunion because of lack of union work, I find that the August 22 withdrawal was valid and effective, that the Company was not bound by the new agreement negotiated by the Union with the Association, and that the Company did not unlawfully fail to bargain and negotiate with the Union. I therefore find that the Company did not violate Section 8(a)(5) and (1) of the Act as alleged. Co()N('It.SIONS OF LANW I. At the time of the Company's August 22 withdrawal from multiemployer bargaining, all built-up journeyman roofers, apprentices, and helpers employed by members of the Associated Roofing Contractors of Western Michigan, excluding office clerical employees, plant guards, and super- visors as defined in the Act, constituted an appropriate bar- gaining unit. 2. Because of the Union's acquiescence in the Compa- ny's withdrawal from multiemployer bargaining and in its decision to operate nonunion because of lack of union work, the Company did not violate Section 8 (a)(5) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation. 720