A.W. Farrell & Son, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1487 (N.L.R.B. 2014)

A.W. FARRELL & SONS, INC. 1487
A.W. Farrell & Son, Inc. and United Union of Roof-
ers, Waterproofers, and Allied Workers, Local
162 and Sheet Metal Workers International As-
sociation, AFL–CIO, Local No. 88. Cases 28–
CA–023502, 28–CA–060627, and 28–CA–062301
December 16, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On July 11, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
1463. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order and
retained this case on its docket for further action as ap-
propriate.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth there as modified below. Accordingly, we affirm
the judge’s rulings, findings, and conclusions and adopt
the judge’s recommended Order to the extent and for the
reasons stated in the Decision and Order reported at 359
NLRB 1463, which we incorporate by reference. The
1 Charging Party Roofers Local 162 (the Union) filed a motion for
reconsideration of the July 11, 2013 decision and a motion to recall the
case from the court of appeals and consolidate it with two pending
cases involving the same parties. The Respondent filed an opposition
to the Union’s motions and a cross-motion for reconsideration, and the
Party in Interest, Sheet Metal Workers Local 88, filed briefs in opposi-
tion to the Union’s motions and in support of the Respondent’s cross-
motion. We deny the motion for reconsideration, the motion to recall,
and the cross-motion for reconsideration as moot. We deny the motion
to consolidate because the Board has issued its Decision and Order
quashing the notice of hearing in one of the cases, 360 NLRB No. 34
(2014), and the remaining case can be resolved separately but consist-
ently with this decision.
Order, as further modified here, is set forth in full be-
low.2
AMENDED REMEDY
The Union excepted to the Board’s failure to require
the Respondent to pay out of its own pocket back dues
that employees owe to the Union. The Board customari-
ly directs that dues owed to a union be deducted from
employees’ backpay. Ogle Protection Services, 183
NLRB 682, 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971). It is well established, however, that when an em-
ployer has unlawfully repudiated a collective-bargaining
agreement, the Board will require the employer to reim-
burse the union for dues payments that it failed to make
where employees signed valid dues-deduction authoriza-
tions. See Gadsden Tool, Inc., 340 NLRB 29, 30 (2003),
enfd. 116 Fed.Appx. 245 (11th Cir. 2004), citing Wil-
liams Pipeline Co., 315 NLRB 630, 632 (1994); Som-
merville Construction Co., 327 NLRB 514, 514 fn. 2
(1999), enfd. 206 F.3d 752 (7th Cir. 2000), citing W.J.
Holloway & Son, 307 NLRB 487, 487 fn. 3 (1992); West
Coast Cintas Corp., 291 NLRB 152, 156 fn. 6 (1988).
Accordingly, we shall modify the Order to require the
Respondent to remit dues to the Union on behalf of its
employees who executed dues authorizations to the Un-
ion prior to or during the period of the Respondent’s un-
lawful conduct, at no cost to the employees.3
The Union also excepted to the Board’s failure to re-
quire the Respondent to mail the notice to current and
former employees. We find merit in this exception. In
Sommerville, supra, the Board found notice-mailing ap-
propriate where there had been “a significant amount of
employee turnover” since the employer repudiated the
contract. 327 NLRB at 514 fn. 2. Here, the record estab-
lishes that between August 21 and December 30, 2010, 7
of 13 employees—over half—left the Respondent’s em-
ploy. Further, we take administrative notice of the ongo-
ing, related litigation among the parties to this case, as
well as the effect of the unfair labor practices.4 For these
reasons, we shall require the Respondent to mail the no-
2 We note that the Union requested the additional remedies in its
original exceptions. As the Board did not expressly address those ex-
ceptions in its Decision and Order, we do so now on our de novo re-
view. In affirming the tax compensation and Social Security reporting
remedies, we rely on Don Chavas , LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014). We shall also substitute a new notice in ac-
cordance with Durham School Services, 360 NLRB 694 (2014).
3 The repudiated 2010–2012 collective-bargaining agreement, like
the prior agreements, contained a dues-checkoff provision (Article
XXIII). In order to avoid a double recovery by the Union, payment
shall be offset by dues the Union collected for the compliance period on
behalf of employees covered by the dues payment order.
4 See A.W. Farrell & Son, Inc., Case 28–CA–085434, and Sheet
Metal Workers (A. W. Farrell & Son, Inc.), 360 NLRB 178 (2014).
361 NLRB No. 162

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1488
tice to all current and former unit employees employed
by the Respondent at any time from the onset of the un-
fair labor practices. This requirement will help ensure
that affected employees are informed of their Section 7
rights and the specific remedies afforded to them to make
them whole for the unfair labor practices that occurred
during their employment.
ORDER
The National Labor Relations Board orders that the
Respondent, A.W. Farrell & Son, Inc., Las Vegas, Neva-
da, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Refusing to recognize and bargain with United Un-
ion of Roofers, Waterproofers, and Allied Workers, Lo-
cal 162 as the collective-bargaining representative of the
Las Vegas, Nevada employees in the following bargain-
ing unit:
All regular full-time and part-time skilled roofer and
damp and waterproof workers, including apprentices,
pre-apprentices, allied workers, other classifications of
workers and any person performing the duties of all
safety monitoring of work, excluding managers,
guards, and supervisors as defined in the Act.
(b) Failing and refusing to execute and implement the
2010–2012 collective-bargaining agreement agreed to by
the Respondent, containing the terms and conditions of
employment of the unit employees set forth in paragraph
1(a).
(c) Failing and refusing to bargain collectively with the
Union by delaying, failing, and refusing to provide the
Union with the information described in its June 29,
2011 written request.
(d) Unreasonably limiting the Union’s use of the in-
formation provided.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action.
(a) Recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in unit described above in paragraph 1(a) concerning
their terms and conditions of employment.
(b) Execute and implement the agreement described
above in paragraph 1(b), and give retroactive effect to its
terms to the effective date of the agreement.
(c) Remit to the Union, at no cost to employees, dues
payments required by the agreement described above in
paragraph 1(b) for employees who executed checkoff
authorizations prior to or during the period of the Re-
spondent’s unlawful conduct, as described in the amend-
ed remedy section of this decision.
(d) Make unit employees whole for any losses they
have suffered as a result of the Respondent’s failure to
sign and effectuate the agreement, plus daily compound
interest, as set forth in the remedy section of the decision.
(e) Compensate unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each unit employee.
(f) Furnish to the Union in a timely manner the infor-
mation it requested on June 29, 2011.
(g) Within 14 days after service by the Region, post at
its facility in Las Vegas, Nevada, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically such as
by email posting on an intranet or internet site, and/or
other electronic means, if the Respondent customarily
communicates with employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(h) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, after being signed by
the Respondent’s authorized representative, copies of the
attached notice marked “Appendix” to all current and
former unit employees employed by the Respondent at
any time since August 17, 2010.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

5 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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

A.W. FARRELL & SON, INC. 1489
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to recognize and bargain with
United Union of Roofers, Waterproofers, and Allied
Workers, Local 162 as the exclusive collective-
bargaining representative of our Las Vegas, Nevada em-
ployees in the following bargaining unit:
All regular full-time and part-time skilled roofer and
damp and waterproof workers, including apprentices,
pre-apprentices, allied workers, other classifications of
workers and any person performing the duties of all
safety monitoring of work, excluding managers,
guards, and supervisors as defined in the Act.
WE WILL NOT fail and refuse to execute and implement
the 2010–2012 collective-bargaining agreement reached
with the Union.
WE WILL NOT refuse to bargain collectively with the
Union by delaying, failing, or refusing to provide the
Union with the information described in its June 29,
2011 written request.
WE WILL NOT unreasonably limit the Union’s use of
the information provided.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and bargain with the Union as the
exclusive collective-bargaining representative of our
employees concerning terms and conditions of employ-
ment in the bargaining unit.
WE WILL execute and implement the 2010–2012 col-
lective-bargaining agreement negotiated with the Union
and give retroactive effect to its terms.
WE WILL remit to the Union, at no cost to employees,
dues payments required by the agreement described
above for employees who executed checkoff authoriza-
tions prior to or during the period of the Respondent’s
unlawful conduct, as set forth in the amended remedy
section of the Board’s decision.
WE WILL make unit employees whole for any losses
they have suffered as a result of our failure to sign and
effectuate the 2010–2012 agreement, plus daily com-
pound interest.
WE WILL compensate unit employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each unit employee.
WE WILL promptly provide the Union with the infor-
mation described in its June 29, 2011 written request.
A.W. FARRELL & SON

The Board’s decision can be found at –
www.nlrb.gov/case/28–CA–023502 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273–1940.