Strong Roofing & Insulating Co.

National Labor Relations Board - Board Decisions

Apr 19, 1965

152 N.L.R.B. 9 (N.L.R.B. 1965)

I
STRONG ROOFING & INSULATING CO. 9
and executed on or about March 1, 1964, with all other employer-members of
that association , and we will , upon request, bargain collectively with the afore-
said company as a component member of the employer association.
LOCAL UNION No. 26, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
Labor Organization.
Dated ------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 707 North
Calvert Street, Sixth Floor, Baltimore, Maryland, Telephone No. 752-8460, Extension
2100, if they have any question concerning this notice or compliance with its
provisions.
Joseph T. Strong d/b/a Strong Roofing & Insulating Co. and Roof-
ers Local 36, United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers Association . Case No. 21-CA-5978.
April 19, 1965
DECISION AND ORDER
On January 8, 1965, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief. The General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Strong
Roofing & Insulating Co., its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Examiner's
Recommended Order.
152 NLRB No. 2.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner Martin S. Bennett at Los Angeles,
California, on October 20, 1964. The cbmplaint 1 alleges that Respondent, Joseph
T. Strong d/b/a Strong Roofing & Insulating Co., had engaged in unfair labor
practices within the meaning of Section 8(a)(5) and 8(a)(1) of the Act. Oral
argument was waived and briefs have been submitted by the General Counsel and
Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Joseph T. Strong, an individual proprietor doing business under the trade name
and style of Strong Roofing & Insulating Co., is engaged in the roofing of residential
and commercial buildings. This concern annually purchases supplies valued at
less than $50,000.
Since approximately 1949, but not after September of 1964, Respondent was a
member of Roofing Contractors' Association of Southern California, Inc., herein
called the Association. The latter is an association of roofing contractors in south-
ern California which negotiates collective-bargaining agreements in behalf of its
members with the charging Union and its sister Local 72. At least one of the
members of this Association annually performs services valued in excess of $50,000
outside the State of California.
Finding hereinafter that Respondent was a member of this Association at the time
material herein, I further find that the operations of Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act and that it would effectuate
the purposes of the Act to assert jurisdiction herein. N.L.R.B. V. Miscellaneous
Drivers & Helpers, Local 610 Funeral Directors of Greater St. Louis, 293 F. 2d
437 (C.A. 8), and Insulation Contractors of Southern California, Inc., et al., 110
NLRB 638.
II. THE LABOR ORGANIZATION INVOLVED
Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and Water-
proof Workers Association is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue; introduction
A contract between the Association, in behalf of its members and the Union, was
in effect from August 15, 1960, to August 14, 1963. Negotiations on a successor
contract commenced in March of 1963 and an agreement was arrived at on Au-
gust 14, 1963, for the period from August 15, 1963, through August 15, 1967.
Both contracts provided for year-to-year renewal after the stated term, absent a
60-day notice prior to the end of said term or any subsequent yearly period.
Respondent has refused to sign and honor the 1963-67 agreement, claiming that
it withdrew from the multiemployer bargaining unit and, further, that the Union
consented to this withdrawal. The General Counsel alleges that Respondent's at-
tempted withdrawal took place at an inappropriate time and urges, contrary to
Respondent, that the Union never waived its rights herein; he contends that a
refusal to bargain took place on and after June 2, 1964.2
IIssued August 19, and based upon a charge filed June 3, 1964, by Roofers Local 36,
United Slate, Tile and Composition Roofer, Damp and Waterproof Workers Association,
herein called the Union
2 The complaint refers to prior conduct which was fully litigated herein. Respondent
has contended that the 6-month statute of limitations established by Section 10(b) bars
the complaint, and relies upon the Union's first demand in October 1963, described below,
that the Respondent sign the Association contract , the evidence, hon ever, goes beyond and
treats with Respondent's subsequent refusals to honor the contract. Afore particularly,
aside from a meeting in December of 1963, there is evidence that a union representative met
with Respondent in April of 1964, the date the General Counsel presumably had in mind,
and the chaige was filed on June 3, 1964. Consequently, the rationale of Local Lodge
No 1424, International Association of Machinists (Bryan Manufacturing Co.) v. N.L It B.,
362 U.S. 411 , is deemed not to be in point See Local Union No. 269, International Broth-
erhood of Electrical Workers (Mercer County Division New. Jersey Chapter, National
Electrical Contractors Association ), 149 NLRB 768. _
STRONG ROOFING & INSULATING CO. 11
It may be noted that the Association has 85 "regular" members who operate
unionized shops in behalf of whom, as stated, it has for many years negotiated an
associationwide contract. Since June of 1962, it has recognized a new category of
associate contractor members, some 10 or 11 in number; these operate nonunion
shops and are not covered by the contract. Treated with hereinafter is Respond-
ent's change of its membership from a regular to an associate contractor member-
ship, as well as its resignation from the Association, and the effect of these moves
upon Respondent's coverage by the contract.
B. Appropriate unit and majority representation therein
The General Counsel contends that all roofers employed by [regular] members
of the Association constitute a unit appropriate for the purposes of collective bar-
gaining. This is an associationwide unit of the type regularly recognized by the
Board and I find it is an appropriate unit within the meaning of Section 9(b) of
the Act.
The General Counsel further contends that at all times since August 15, 1963,
the effective date of the most recent agreement, the Union has been the representa-
tive of a majority of the employees in the above-described unit, including those of
Respondent. Respondent does not dispute the Union's representative status among
the other members of the Association, but again predicates its denial of said repre-
sentative status among the employees of Respondent upon its attempted withdrawal
from the unit. For reasons hereinafter set forth, I find that the Union has been
at all times material herein, and now is, the exclusive representative of all employees
in said unit within the meaning of Section 9(a) of the Act.
C. Sequence of events
As set forth, a contract between the Association and the Union was in effect from
August 15, 1960, through August 14, 1963. Respondent, as a regular member of
the Association, was bound by this contract and adhered to its terms. Indeed, con-
sistent with custom whereby the Union obtained signed copies of the contracts from
the respective members of the Association, Joseph Strong had signed the 1960 con-
tract.3 On January 23, 1962, Respondent wrote to the Union, as follows:
Persuant [sic] to Article IX, paragraphs A, and B, in the Master Labor
Agreement dated August 15, 1960 to August 14, 1963, inclusive, I, J T. Strong
dba as sole proprietor of the Strong Roofing and Insulating Company located
at 710 South Garfield Avenue, Alhambra, do hereby respectfully request ter-
mination of the above Master Labor Agreement.
Date of termination to be soon as possible under the terms of the Agreement.
Request this intent of termination to be brought to the attention at the next
regular meeing of the Joint Labor Relations Board, at their February 6, 1962,
meeting.
Strong testified that he believed that this clause, as well as an identical clause in the
1963-67 contract, permitted him to terminate the contract on 60 days' notice How-
ever, it quite clear that the clause in both contracts does not so provide. It estab-
lishes a term from August 15, 1960, through August 14, 1963, and from year to year
thereafter, absent 60 days' notice prior to August 14, 1963, or the end of any sub-
sequent yearly period to terminate or modify the contract. Furthermore, Strong
never received a reply to this letter, which was sent via regular mail and there is no
direct evidence of its receipt by the Union. Respondent continued to live up to the
terms of the agreement in all respects, including payment of fringe benefits.
Negotiations for a successor contract covered the period from March 1963, through
August 14, 1963. A new contract was reached on August 14, for a term from
August 15, 1963, through August 15, 1967.
There is evidence by Executive Director David Van Eyk of the Association that all
members of the Association were kept posted as to the progress of the 1963 negotia-
tions. Two open negotiating meetings were held on May 21 and July 13, 1963, and
all regular members were invited to attend. And, on July 27, each regular member
was mailed a document reflecting all contract matters that had been agreed upon as
of that date. Moreover, on September 24, 1963, Respondent made fringe payments
3 All regular members of the Association give it the right to bargain for them ; agree
under the bylaws not to engage in individual bargaining, and agree to accept the negotiated
contract.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the "Union Roofers Trust Account" for the month ending August 31 as required
by the Association's contract with the Union. And, on October 19, 1963, a similar
payment was made for the month ending September 25, 1963.
On August 20, 1963, Respondent wrote to the Joint Labor Relations Board. This is
a Board set up under the grievance procedure of the contracts, composed equally
of contractor and union representatives, to handle grievances or disputes under the
contracts. The letter was referred to the Association, and no issue is raised by the
General Counsel as to whether it was sent to the proper party .4 In the letter, Strong
stated:
Persuant [sic] of that Artle [sic] in the Master Agreement dated August 15,
1963; to and including August 15, 1967; pertaining to the termination of the
Master Contract, I, J. T. Strong d.b.a. as the Strong Roofing & Insulation Com-
pany, located at 710 South Garfield Avenue, Alhambra; request action in ac-
cordance with the above noted Article in the current Master Agreement [sic].
Date of termination to be set at next regular meeting of the J.L.R.B., who,
shall release depost [sic] of $400.00 held as guarantee of faithful performance
regarding labor payments as so described in Master Agreement.
Here as well, it is apparent that Strong believed that the language he referred to
provided for a 60-day notice pursuant to which he could be released from the pro-
visions of the contract. The reference to the $400 bond is to a bond required of the
regular members of the Association under the Master Labor Contract to insure pay-
ment of wages and fringe benefits. Strong also testified that he had made the fringe
benefit payments in September and October, described above, pursuant to his concept
of honoring the contract for its last 60 days.
About the end of September, according to Van Eyk, Strong telephoned the As-
sociation and asked that his status as a regular member (under the contract) be
changed to that of an associate contractor member (nonunion); this meant a reduc-
tion from $17.25 to $15 per month in dues. Respondent continued to pay the higher
sum on or about the first of the months of October, November, and December of 1963.
On December 18, the Association reduced the amount of the payment to $15 per
month and placed a credit of $6 75 to Respondent on its books; this reflected a credit
of $2.25 for each of the months of October, November, and December. I find
that the status of Respondent was changed to that of an associate contractor member
on December 18, retroactive to October 1, 1963.
On September 30, 1963, the Association canceled Respondent's bond and on
January 3, 1964, the cash deposit of $400 was returned to him. The record further
discloses that in September of 1964, Respondent withdrew from the Association.
There have been three contacts of Respondent by representatives of the Union
subsequent to the signing of the contract on August 14, 1963. On October 18 or 20,
1963, according to Mrs. Joseph Strong who handles administrative details for Re-
spondent, one Sheridan, a representative of the Union, called at the office and stated
that the Union wished Respondent to sign a copy of the newly negotiated agreement.
As noted, this had been routine practice for many years. Mrs. Strong refused to
sign , stating that her husband had previously notified the Association of his intent
not to resign, manifestly a reference to the letter of August 20, 1963. Mrs. Strong
reaffirmed this position in a telephone conversation with Sheridan on the following
day.
Sheridan again visited Respondent's office on December 10, 1963, and, according
to Mrs. Strong, renewed his request that Respondent sign the contract. Mrs. Strong
refused, stating that she no longer had any "union men" and claiming that several
(if not all) of her employees had withdrawn from the Union and were going into
business for themselves.
In April of 1964, William Nuttall, a representative of the Union, called upon
Strong and asked him to sign the contract. Strong refused, referred to the number
of nonunion contractors in the area and stated, according to Nuttall, that "he would
rather go non-union rather than sign it ... ' Strong admitted refusing to sign the
contract "for economic reasons."
D. Analysis and conclusions
The Board recognizes that employer members of a multiemployer bargaining unit
may withdraw from multiemployer bargaining. See, e.g., Seattle Automotive Whole-
salers Association, et al., 140 NLRB 1393. But a basic requisite has been that an
employer do so unequivocally and at an appropriate time. And the Board has made
4 This registered letter was not delivered until August 27.
STRONG ROOFING & INSULATING CO. 13
it clear that an attempt at withdrawal after a multiemployer agreement has been
reached is ineffective because the time has become inappropriate . See, e.g., N.L.R.B.
v. Jeffries Bank Note Co., 281 F. 2d 893 (C.A. 9); Fairbanks Dairy, Division of
Cooperdale Dairy Company, 146 NLRB 893; Cooke & Jones, Inc., 146 NLRB 1664;
Walker Electric Company, 142 NLRB 1214; and Donaldson Sales, Inc., 141 NLRB
1303.
In the instant case, Respondent 's letter of January 23 , 1962, manifestly had no legal
effect because the contract did not expire until August 14 , 1963, and it did not provide
for a prior termination And, in 1963 , while negotiations were going on for a new
contract , Respondent was put on notice thereof , but took no steps to withdraw from
the Association . Indeed, it proceeded to honor the new contract and lived up to its
fringe-benefit requirements for the months of August and September of 1963.
Respondent has argued that in the three contacts with it by the Union, described
above, the union representatives merely asked Respondent to sign the agreement and
did not state that Respondent was bound by the associationwide master contract.
But it is clear that Respondent, and the record discloses that Strong was a past presi-
dent of the Association presumably familiar with its procedures , was asked , on these
occasions , to sign an individual contract after the master agreement had been
negotiated precisely as it had been in the past, the other regular members of the
Association were also so asked. Stated otherwise , the associationwide contract was
negotiated in 1963, and the members of the Association were thereafter respectively
asked to sign individual copies, just as had been done in the past. This is not evidence
of a waiver and Respondent 's contention to that effect is rejected.
While Respondent changed its membership to that of associate contractor member,
after the signing of the 1963 contract; reclaimed its bond; and , in 1964, withdrew
from the Association , I fail to see how this helps it, all these occurring too late in
the day.
And while Respondent draws attention to the fact that, when negotiations com-
menced on new contracts , the Association was in the habit of sending proxies to
regular members as well as to nonmembers , the record demonstrates that there was
no requirement that regular members sign and return the proxies , and in fact some
did not . Indeed, Strong admittedly did not sign all such proxies and did not recall
whether he signed one in 1960 , desipte the fact that he lived up to the 1960 contract.
I find , in view of the foregoing considerations , that, on and after April of 1964,
Respondent , by failing and refusing to sign and honor the agreement negotiated by
the Association with the Union covering the period from August 15, 1963, through
August 15 , 1967, has refused to bargain and has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and ( 1) of the Act. See Mixermobile Manu-
facturers, Inc., 149 NLRB 592; Ogle Protection Service, Inc., et al., 149 NLRB 545;
and Tulsa Sheet Metal Works, Inc., 149 NLRB 1487.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , and occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relationship to trade , traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It has been found that Respondent has refused to bargain with the Union as the
duly designated representative of its employees in an appropriate unit. I shall
therefore recommend that Respondent sign and honor the agreement negotiated be-
tween the Association and the Union covering the period from August 15, 1963,
through August 15, 1967 , and that it pay to the appropriate source any fringe benefits
provided for therein.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Joseph T. Strong d/b/a Strong Roofing & Insulating Co. is an employer within
the meaning of Section 2(2) of the Act.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association is a labor organization within the meaning of
Section 2(5) of the Act.
3. All roofers employed by members of Roofing Contractors' Association of
Southern California, Inc., including Respondent, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. Roofers Local 36, United Slate, Tile and Composition Roofers, Damp and
Waterproof Workers Association has been at all times since August 15, 1963, and
now is, the exclusive representative of all employees in the aforesaid appropriate
unit within the meaning of Section 9(a) of the Act.
5. By refusing on and after April 1964, to bargain in good faith with the Union
as the exclusive representative of its employees in the aforesaid appropriate unit,
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (5) of the Act.
6. By the foregoing conduct, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing Findings of Fact and Conclusions of Law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that Respondent, Joseph T. Strong d/b/a Strong Roofing & Insulating
Co., Alhambra, California, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize Roofers Local 36, United Slate, Tile and Composition
Roofers, Damp and Waterproof Workers Association as the representative of its
employees in the above-described appropriate unit and refusing to honor the 1963-67
contract between said Union and Roofing Contractors' Association of Southern-
California, Inc.
(b) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and to refrain
from any or all such activities,, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Forthwith execute and honor the 1963-67 agreement between the Union and
Roofing Contractors' Association of Southern California.
(b) Pay to the appropriate source any fringe benefits provided for in the above-
described contract.
(c) Post at its offices at Alhambra, California, copies of, the attached notice and
marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director
for Region 21, shall, after being duly signed by Respondent, be posted immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter; in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to the insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps it'has
taken to comply herewith.6
5 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order " shall be substituted for the words " the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision and
Order " ,
6 In the event that this Recommended Order be adopted by the Board , this provision shall
be modified to read . "Notify said Regional Director , in writing , within 10 days from the-
date of this Order, what steps the Respondent has taken to comply herewith."
PORTLAND STEREOTYPERS' ETC., NO. 48 15
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to recognize Roofers Local 36, United Slate, Tile and
Composition Roofers, Damp and Waterproof Workers Association as the repre-
sentative of our roofing employees.
WE WILL honor and sign the contract executed between roofing Contractors'
Association of Southern California, Inc. and Roofers Local. 36, United Slate,
Tile and Composition Roofers, Damp and Waterproof Workers Association for
the period August 15, 1963, through August 15, 1967, covering a unit of all
roofers employed by members of said Association.
WE WILL make whole the appropriate sources for any unpaid fringe benefits
provided in the above contract.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the right to self-organization, to form labor
organizations , to join or assist the above-named or any other labor organiza-
tion, to bargain collectively -through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment.
JOSEPH T. STRONG D/B/A STRONG ROOFING & INSULATING CO.
Employer.
Dated------------------- By-------------------------------- ------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,.
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have
any question concerning this notice or compliance with its provisions.
Portland Stereotypers' and Electrotypers' Union No. 48 and In-.
ternational Stereotypers' and Electrotypers ' Union of North
America, AFL-CIO and Journal Publishing Co. and Oregonian
Publishing Co. Case No. 36-CB-244. - April 20,1965 - -
SUPPLEMENTAL DECISION AND ORDER
On October 18, 1960, Trial Examiner Martin S. Bennett issued his:
Intermediate Report in the above-entitled proceeding, finding that
Respondents had violated Section 8(b) (1) (B), (2), and (3) of the
National Labor Relations Act, as amended, by adamantly insisting-
upon, during bargaining negotiations and then striking for, certain
terms and conditions in a new collective-bargaining agreement. He
recommended that Respondents cease and desist therefrom, and take
certain affirmative action, as set forth in the Intermediate Report.
Thereafter, the Respondents, the Charging Parties, and the General
Counsel filed exceptions to the Intermediate Report and supporting;
briefs.
152 NLRB No. 5.