Mackie's Roofing and Sheet Metal Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1975

221 N.L.R.B. 277 (N.L.R.B. 1975)

MACKIE'S ROOFING & SHEET METAL CO. 277
Mackie's Roofing and Sheet Metal Co., Inc., and
Mackie's Roofing and Sheet Metal Works and
Local Union 141, United Slate, Tile and Compos-
ition Roofers, Damp and Waterproof Workers
Association . Case 15-CA-5556
October 31, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On June 30, 1975, Administrative Law Judge
Jennie M. Samca issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting beef.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order as modified herein.
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act, we
further require that it make whole all its unit
employees for any losses they may have sustained by
reason of Respondent's failure to honor and apply
the terms of the labor agreements, and make such
contributions on behalf of the unit employees for
health, welfare, and other benefits as may be
required under the terms of the labor contracts,
together with interest as prescribed in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
bargaining agreements, including failure to pay wage
increases provided for therein, together with all
contributions for health, welfare, and other benefits
provided for in said agreements together with interest
as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The Administrative Law Judge found that during the past year
preceding issuance of the complaint , Respondent performed services valued
in excess of $50,000 for certain agencies of the United States government
We take judicial notice of the fact that the operations of the United States
Navy, the United States Coast Guard, and the Veterans Adnunistration are
in commerce and affect commerce within the meaning of Sec 2(6) and (7) of
the Act, and that it would effectuate the purposes of the Act to assert
junsdiction in this proceeding Sr Francis Pie Shop, Inc, 172 NLRB 89, 90
(1968)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local Union 141, United Slate, Tile and Compos-
ition Roofers, Damp and Waterproof Workers
Association by renouncing, rejecting, and refus-
ing to abide by the collective-bargaining agree-
ment existing between us and the Union and by
withdrawing recognition from the Union as the
exclusive bargaining representative of our em-
ployees in the following appropriate unit:
All commercial and residential roofing and
sheet metal workers employed by us in New
Orleans, Louisiana, exclusive of all supervi-
sors as defined in the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Mackie's Roofing and Sheet Metal Co., Inc., and
Mackie's Roofing and Sheet Metal Works, New
Orleans, Louisiana, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified.
1. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Reimburse its employees in the appropriate
unit described above, for any loss of earnings they
may have sustained by reason of Respondent's
failure to honor and abide by the existing collective-
221 NLRB No. 51
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL recognize the Union as the exclusive
collective-bargaining representative of our em-
ployees in the aforesaid unit and honor the
existing contractual commitments covering the
terms and conditions of the employment.
WE WILL reimburse our employees in the
appropriate unit described above, for any loss of
earnings they may have sustained by reason of
our failure to honor and abide by the existing
collective-bargaining agreements, including wage
increases provided for therein, together with all
contributions for health, welfare, and other
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits provided for in those agreements.
MACKIE'S ROOFING AND
SHEET METAL CO., INC.;
AND MACKIE'S ROOFING
AND SHEET METAL
WORKS
DECISION
STATEMENT OF THE CASE
JENNIE M. ,SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq. ),
hereinafter referred to as the Act. Based on charges filed
on January 3, 1975, as amended on March 7, 1975, a
complaint was issued on March 11, 1975, presenting
allegations that Mackie's Roofing and Sheet Metal Co.,
Inc., and Mackie's Roofing and Sheet Metal Works,
hereinafter referred to as the Respondent, committed
unfair labor practices within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act. The
Respondent filed an answer denying that it committed the
violations of the Act alleged. Upon due notice, the case
was tried before me at New Orleans, Louisiana, on April
22, 1975. Representatives of all parties entered appearances
and had an opportunity to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs and
argument, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
A. The Employer
It is alleged in the complaint, and Respondent admits,
that at all times material herein until at least December 18,
1974, Respondent, Mackie's Roofing and Sheet Metal
Works, herein called Mackie's Works, was the sole
proprietorship of James"Mackie with a place of business at
his home at 2517 Andry Street, New Orleans, Louisiana,
where it was engaged in roofing and sheet metal fabricat-
ing work, and that at all times material herein since
December 18, 1974, Mackie's Roofing and Sheet Metal
Co., Inc., hereinafter called Mackie's Co., with a place of
business at 4014 Erato Street, New Orleans, Louisiana, a
Louisiana corporation, has been engaged in roofing
contracting and sheet metal fabrication work.
It is further alleged in the complaint and denied in the
answer filed by Respondent that since on or about
December 18, 1974, Respondent Mackie's Co., has
continued to operate the business previously engaged in by
Respondent Mackie's Works, with the same equipment,
employees, supervision and ownership as Respondent
Mackie's Works, and that from on or about December 17,
1974, Respondent Mackie's Co., has been, and is now, the
alter ego and/or successor of Respondent Mackie's Works,
and has operated, and is operating the former business of
Respondent Mackie's Works as a disguised continuance of
Respondent Mackie's Works.
James Mackie began business as a roofing contractor in
about 1960, performing primarily residential work. As sole
owner of the business, he managed its finances, bid on
jobs, wrote any contracts, hired and fired his employees,
and otherwise managed the business. His brother, Willie
Mackie, was his "top man." At first Willie worked for him
only "off and on" but in more recent years he has worked
regularly, being paid $300 a week. Willie also had authority
to hire and fire employees and was in charge of jobs.
Mackie's Works employed three individuals on a regular
basis. These were James Mackie (same name as the owner),
a cousin, who has worked for Mackie's Works since 1964;
Leon Doherty, a cousin, who has worked for him for about
three years; and Glen Collins, also a cousin, who has
worked for Mackie's Works over 3 years. In addition,
James Mackie employed as needed, Major Mackie, a
brother, who has worked for him since 1960, Elijah
Robinson, a brother-in-law, who has worked for him for
about 4 years, and Olsen Nash, a brother-in-law who
worked for him for an unspecified time.
James Mackie testified that Mackie's Works continued
to operate after December 17 and is still in operation but
he is not part of the business anymore. He gave the
business to his brother Willie. The transfer took place on
December 17, as stated in the articles of incorporation of
Mackie Co. There was no money transaction involved. The
transfer was a gift.l The understanding was that- Willie
would take over the business and James would always have
a job with the. Company. Willie asked him to continue to
run the business until Willie became more familiar with it.
Willie now runs the business, but before he does anything
he asks James. James Mackie is paid $300 a week when
Mackie's Co. has the money. James still does the
estimating on jobs, and assists in running the business. He
and Willie both work on the roofs.
James Mackie, as Mackie's Works, owned business
equipment, including one "statebody" truck and two 3/4-
ton trucks, two tar machines, and two gravel machines, the
latter used primarily on flat roofs such as those on
apartment houses, and other miscellaneous tools. This
equipment was turned over to Mackie's Co., and is used in
that operation. The trucks which were registered in James
Mackie's name as proprietor of Mackie's Works are still so
registered but James retained possession only of the pickup
truck for transportation and the other trucks are in Willie's
possession.
Mackie Co., as 'a corporation, did not issue any stock.
The checking account which was in James' name while
operating under the name of Mackie's Works was changed
by adding Willie's name to the account. Either, James or
Willie now sign checks on this account for Mackie's Co.
James usually writes his own, checks and Willie usually
signs payroll checks.
1 James Mackie testified that he turned the business over to Willie
because the pressure became too much for him after he signed the union
agreements and his relatives learned that they could not work on the
commercial jobs; that Mackie's is small and only performed one job at a
time, and all the relatives turned against him. He was disturbed and wanted
to dissolve the business but his brother Willie asked to take it over so he
gave the business to Willie. James admitted that but for the problems
created for him by the union contracts he would still be operating Mackie's
Works.
MACKIE'S ROOFING & SHEET METAL CO. 279
The jobs that Mackie's Works had agreed to perform
were by oral agreement rather than written commitments.
When Mackie's Co. came into existence it performed those
jobs, using the same employees who had been employed by
Mackie 's Works. Mackie's Co. has gone back to rectify any
workmanship on jobs performed by Mackie's Works. The
Mackie's Co. business still uses the same addresses and the
same phone numbers as Mackie's Works had used;
namely, those of James and Willie Mackie. The type of
work performed is the same as that done prior to the
transfer of the business.2
James Mackie did not deny that he held his brother,
Willie, out to the Union and to the representative of
Roofing Contractors Association of New Orleans, Inc., an
employer association, as his partner in Mackie's Works
and informed them that he needed Willie's agreement to
whatever he signed.
In its answer , and its letter waiving a brief in this
proceeding , Respondent asserts that on December 18,
1974, with the incorporation of Mackie's Co., James
Mackie "dissolved his ownership," and that "James
Mackie , by his act of Incorporating of his business, no
longer has any incidence of ownership and can not be held
personally liable for the acts of the corporation subsequent
to December 18th, 1974."
To the extent that this argument suggests that Mackie's
Works and Mackie's Co. are separate and distinct
businesses and separable for purposes of considering the
events covered by this proceeding and any responsibility
therefor, I reject the argument. The totality of the evidence
set forth above clearly demonstrates that Mackie's Works
and Mackie 's Co. are one and the same business operated
by the same individuals, performing the same type work
and employing the same individuals. Even the financial
account remained the same with only a name added, and
the two principle managers of the business merely switched
roles in some respects for purposes other than to change
the function or control of the business. On the basis of
these facts , I find that Mackie's Co. is merely a continua-
tion of Mackie's Works, as virtually admitted by James
Mackie , and is merely the alter ego of the latter. The mere
incorporation of a business does not create the type of
change that would bring into issue questions of successor-
ship or the binding nature of existing contracts.
Accordingly, I find that as its alter ego, Mackie's Co. is
the continuation of Mackie's Works and is responsible for
all actions taken by principles of Mackie's Works.3
B. Commerce Facts
During the'past year preceding issuance of the complaint
herein , Respondent performed services valued in excess of
$50,000 for agencies and institutions of the United States
Government, including United States Navy, United States
Coast Guard, and Veterans Administration's Hospital,
which agencies and institutions are in commerce within the
meaning of the National Labor Relations Act.
Respondent presented testimony indicating that in the
past year its total revenues were in the area of $150,000 to
$160,000 and admitted that in 1974 its contracts with the
three mentioned Government installations exceeded
$50,000. However, Respondent asserts that these are not
indicative of the work generally performed by Respondent
but were in response to a Federal program to assist
minority contractors through the Small Business Adnunis-
tration. Therefore, Respondent argues, the National Labor
Relations Board does not have jurisdiction over Respon-
dent. Alternatively, Respondent asserts that because it is a
family operation, it would not effectuate the purposes of
the Act to assert junsdiction over it.
No evidence was presented to indicate either that
Respondent would not in future operations continue to
take advantage of every opportunity to perform similar
work, or that the program to assist in obtaining such work
would cease. The Board bases its jurisdiction on commerce
data experienced by the Employer on the reasonable
presumption that past experience is indicative of future
operations. Such projection of commerce data is an
established part of existing policy and precedent.4 Accord-
ingly, I find that Respondent does meet the established
Board jurisdictional standards and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Nor do I find merit in the contention that it will not
effectuate the policies of the Act to assert jurisdiction over
Respondent because it employees are primarily relatives of
the owners. There is a clear distinction between "Papa and
Mama" operations, where both work in a business for a
common income and an operation which employs cousins,
brothers-in-law, and brothers, for hourly wages for time
actually worked, as any employee. I find that the
Respondent is an employer within the meaning of Section
2(2) of the Act.
II. THE LABOR ORGANIZATION
Respondent admits, and I find, that at all times material
herein , Local Union 141, United Slate Tile and Compos-
ition Roofers, Damp and Waterproof Workers Associa-
tion, hereinafter referred to as the Union, is and has been a
labor organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is signatory to two collective-bargaining
agreements with the Union both executed on November
25, 1974, by James Mackie as owner of Mackie's Works.
The contract covering employees on jobs classified as
commercial was that executed by Roofing Contractors
Association of New Orleans, Inc., hereinafter referred to as
Employer Association, its members and other roofing
contractors. This agreement was for a 3-year initial period
from May 1, 1973, until April 30, 1976, and from year to
year thereafter in the absence of appropriate notice as
required therein. This agreement also had a wage-reopener
clause requiring notice 60 days before May 1, 1975, and
was open for wage adjustments pursuant to that clause at
the time of the hearing herein. The contract covering
employees of Respondent on jobs classified as residential
2 The brothers also have letterhead forms for J & W, printed for use on
"side jobs "
3 Contrast International Offset Corporation, 210 NLRB 854 (1974) See
Johnson Electric Company, Inc, 196 NLRB 637, 639 (1972)
4 See, e g., J Martin Baker, d/b/a Galaxy Theatre, 210 NLRB 695 (1974)
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work was a memorandum agreement, adopting and
agreeing to be bound by all terms and conditions of the
master agreement existing between Employer Association
and the Union, referred to as the Residential Working
Agreement. That master agreement expired by its terms
after appropriate notice on December 31, 1974, and, during
the relevant period in November and December 1974, was
being renegotiated by members of Employer Association
and other employers.
Respondent had operated as a nonunion- shop until it
signed the agreements mentioned above. According to
James Mackie, this signing came about when, after
completing a job at the Port of Embarkation the last week
of October 1974, he indicated interest in obtaining
additional commercial work of this type which had taken
over 2 months to complete in contrast to the small
residential jobs of which he did four or five a month. His
cousin, Ogden Nash, who was a union member, told him of
Richard Allen, then business manager and financial
secretary of the Union. Mackie contacted Allen and
indicated his interest in obtaining further commercial
work. A meeting was arranged by Allen and discussions
proceeded looking toward the execution of the two
contracts .5
There is a conflict in the testimony as to whether there
were two or four meetings including the one at which the
contracts were executed, resolution of which is not crucial
to -the basic issues herein. However, for purposes of
credibility generally, I am inclined to credit Mackie's
testimony'that there were two and at most three meetings
over testimony given by Employer Association Executive
Director Edward Volpi's testimony that there were four
such meetings . Allen at first testified that there were three
meetings . He later changed this to four meetings. Both
Volpi and Allen were quite uncertain and indefinite in their
recollection as to details of what took place at each of the
alleged four meetings, and, surprisingly, neither of them
had any diary or other notation indicating dates on which
they jointly met James Mackie. Further, none of the events
related by those two witnesses were inconsistent with the
testimony of James Mackie as to what transpired between
them except for the matter of whether James Mackie had
an opportunity to take the residential agreement home to
study before he signed it. In this latter respect, Allen
testified he could not say for certain that Mackie had taken
the residential agreement home.
5 According to Allen, he had received a call at the union reporting that
Mackie's Works, a nonunion roofing -contractor, had a subcontract or was
seeking a subcontract from J. A. Jones, the prime contractor at the Port of
Embarkation project and that he had unsuccessfully attempted to reach
Mackie because J.A. Jones had' a contract through the master agreement
between the New Orleans Chapter of the Associated General Contractors of
America, Inc:, and the Southeast Louisiana Building and Construction
Trades Council, affiliated with the Building and Construction Trades
Department of AFL-CIO which prohibited J A. Jones from utilizing
nonunion subcontractors He believed Mackie's call was in response to his
call.
6 Mackie did not contradict Allen's testimony that he pointed out to
Mackie the subsidiary clause which provided that no one signatory to the
collective-bargaining agreement with Local 141 may have a nonunion
operation as well as a union operation . Allen testified that he discussed this
clause because Mackie wanted to know whether he could have a nonunion
shop so that he could keep his employees who were working for him, and
Allen explained that once he signed the contract he could not have a
According to James Mackie, he met with Allen and
Volpi at which time he talked of, his desire to perform
commercial contracts and mentioned a particular un-
named contractor working at the Port of Embarkation
location he would like. to do subcontract work for. Allen
informed Mackie that he could not obtain such a
subcontract unless he was a union roofer because the
primary contractor mentioned had a contract requiring
that he use only union contractors. Mackie asked whether
he could work the job as a nonunion contractor if he hired
union men to do the work. Allen said that this could not be
done .6 Allen then told Mackie he would like to have a
minority businessman in the roofing field under contract.?
Allen told Mackie he would never be able to progress by
doing only small jobs and if he really wanted to expand he
would have to get into the commercial field. Allen
mentioned some large projects Mackie might have been
able to perform had he been a union contractor. Allen gave
Mackie a copy of the commercial collective-bargaining
agreement, showed him a list of the contractors who were
signatory thereto, and outlined in general how signing the
contract would benefit Mackie if he entered the commer-
cial roofing field. Allen explained some of the provisions of
the commercial contract and gave it to Mackie to take with
him and read. Mackie noticed that the name of'his
business appeared thereon but without a signature.
The same parties met again on a date which Mackie
believed was about 2 weeks later. At the last, meeting,
James Mackie brought his brother, Willie, with him. Allen
answered his questions concerning the commercial agree-
ment, and at this meeting Allen and Volpi showed him the
residential agreement .8 There was some discussion of the
provisions of this agreement. Allen suggested that Mackie
sign both of the agreements. Allen further explained how
the two contracts, related to one another. Willie mainly
listened and left for a job before the meeting was
concluded.
Mackie testified that he did not understand why
residential workers could not go on commercial jobs when
they got ready; he did understand that the commercial
men could not work in the residential field because it was
not enough money. He further testified that he got the
impression from the provisions in the contract and from
what was said that if he signed both of the agreements he
could go on all jobs, commercial and residential. Mackie
nonunion shop also.
7 Mackie is black. The Union had no union contractors signatory to its
contracts who were black. Volpi testified that the Employer Association had
no black members and that he spoke with Mackie, not only about becoming
a member, but also about becoming one of the employer negotiators in
bargaining for the new residential agreement in which meetings were about
to begin However, he did not firm this up or give Mackie an application for
membership in the Employer Association because of subsequent develop-
ments which intervened before he had obtained the necessary clearance and
approval for his proposed action.
S Allen explained that the reason that only the commercial contract was
brought to the first meeting and discussed was because he understood that
to be the area in which Mackie was interested , and that the residential
agreement was brought to the later meeting because Mackie had raised
questions regarding his present employees who had been working in the
residential field and who were not eligible under the contract to work in
commercial roofing. Volpi claimed it was his suggestion to discuss only one
contract at a time so as not to confuse Mackie.
MACKIE'S ROOFING & SHEET METAL CO. - 281
admitted that he did have-a period of time to read article 6
of the residential agreement before signing it,9 and Allen
did explain it, -but when Allen finished explaining, Mackie
understood that if he signed both agreements the men he
employed could,go anywhere but if he only signed one, the
men could only work in that one -field. He added that
having read the contract again, he still does not understand
it.10 At this meeting Allen did discuss with him the
necessity, of, hiring union people on the commercial jobs
from the union hall. It was his understanding, however,
that if he signed both contracts, the men who were with
him could go back and forth between the residential and
commercial jobs.ll Mackie testified that he signed the
contract because' he understood it would get him commer-
' cial work and that it Would not affect his employees. The
contracts were signed- at Volpi's office. He did not get the
Port of Embarkation job he was interested in, nor has he
received any other commercial contract awards.
Mackie admitted that Volpi offered assistance. He did
not deny that Volpi stated they would be willing to help
him to the extent that they could and that if he had any
questions he should call or come in. Volpi also stated that
the facilities .of the Employer Association were available to
him. Mackie was, shown the .facilities at the Employer
Association for assisting member contractors in clearing
specifications and submitting bids on project work, and the
other facilities 'for other business purposes. Mackie also
admitted that he ' immediately began getting bidding
announcements from the `Employer Association for jobs
that were up for contract and that he was still receiving
'these at the time of the hearing. Mackie never attempted to
submit a bid on any of-these inquiries, nor did he-call Volpi
for information or assistance on any bid announcements.
James Mackie indicated that he did not know how to
read blueprints, architect plans or specifications and how
to calculate a bid. Mackie has bid on jobs through the
Small Business Administration (SBA) and had to fill out
forms to bid on jobs. These were basic forms that he had to
read through, to, apply for those, jobs. The SBA prepared
him to do those jobs and guided him on those jobs, The
contract he signed was with SBA which in, turn had
contracts with the.other Government facilities. Mackie also
had assistance from Amalgamated Building Contractors of
Louisiana, known as ABCO,` at SBA's request. Those
facilities are,not generally available to him as he is not a
member of that organization.12
After Mackie executed the contracts on"November 24,
1974, three-or four employees from Mackie's Works came
to the union office and signed union, membership cards.
9 Art. VI, sec 62, of the residential contract reads;
Employees working in the residential classification hereof shall not be
eligible for employment on commercial work, under the Collective
Bargaining Agreement between these parties for a period of three years
after' beginning in the residential classification , unless such employees
have worked on commercial work under the Collective Bargaining
Agreement between these parties.
10 According to the testimony of Allen, which is not denied, he explained
to Mackie that under the contracts anyone who worked for Mackie would
have to join the Union and Mackie would have to hire union people because
the employees he had could not work on the commercial work but only on
residential type work Volpi stated that a contractor signatory to the
commercial contract could use those employees in residential work, but if he
was not also signatory to the residential contract he would have to pay them
the wage rates fixed in commercial contract.
`About a week ad a half later, Allen passed by a furniture
store on Chartres Street and noticed Mackie's Works truck
parked there. He knew this was a commercial type job.
Allen,spoke with the kettleman and was told that Willie
Mackie was on the roof. Allen asked that Willie be called
down to speak with him. He told Willie that he was in
violation of the contract because he was using residential
people to do commercial work. Willie'stated he would have
to discuss the matter with his brother. Allen asked that
James Mackie give . him a call, which he did. Allen
explained the violation,, which was one for which Mackie's
Works could be subject to a $500 fine., James stated he had
that job"before he signed the agreements and thatthere was
not enough money, in the job to hire union men. Allen told
Mackie the Union would give him until ,the end of the
week to finish the job or he wouldhave to hire union men
from the hall. A couple of days later Allen went back and
found Mackie's Works still on the job., Allen told Willie
that by the end of the week he would have to hire union
men from the hall to finish the job._ The five employees
from Mackie's who had signed union cards were working
there. About a week later he went back and discovered that
Mackie's men were back on the same job at the furniture
company. Allen ,informed them that they were in violation
of the contract. Shortly thereafter, the Union received a
letter sent to the Employer Association office stating they
were resigning from the association and the Union.
Those letters included one from James Mackie advising
that, he no longer owned Mackie's Works and had no
authority or power, any- longer to keep the agreements.
There were also identical letters from -Doherty, Major
Mackie, Robinson, and James, Mackie (cousin resigning
from the Employer Association and the Union. Mackie
denied that he had his employees, withdraw from the
Union. He testified he told them what he was doing and
they chose to withdraw. He admitted that the letters were
typed at his address.13
Analysis
It is alleged in the complaint and the General Counsel
contends that Respondent unilaterally withdrew recogni-
tion from the Union on December, 17, 1974, and since that
date has refused to recognize the Union, and' has
renounced, rejected, and refused to abide by the collective-
bargaining agreements between them; and, that by such
conduct Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act 14
11 Allen testified that Mackie asked whether his cousins could go on
commercial jobs because they were key men and he had to have somebody
he could trust. Allen explained the foremen requirements in thecommercial
contract and that the- employer selected his foremen . He and Volpi agreed
that Mackie could have those two go-back and forth-as foremen. He
understood Macloe had reference to James and Major Mackie. He did not
know that all of Mackie's employees were relatives . Mackie also asked
whether Wilkie could work on the roof and Allen told him no because Willie
was an owner. In the former respect, Volpi stated he did not waive any
contract provision because he had no authority to do so
12 Mackie testified that his formal education ended with the tenth grade
in a school that was not highly rated.
13 There is no allegation that Respondent violated Sec. 8(a)(1) of the Act
by assisting in these withdrawals.
14 In his brief, the General Counsel argues that because such actions
(Continued)
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent -contends that because of the ,failure of
James Mackie to understand or have explained to him the
consequences of his signing the contracts he is not bound
by them. I find no merit in this contention. First of all, the
evidence set forth above amply demonstrates that every
effort, was made to explain in detail the effects of the
various contract provisions as well as the advantages of
becoming a union roofing contractor, and every offer of
assistance was advanced to insure a fair opportunity-to
obtain commercial contracts. Nor do, I find James Mackie
without, the capability to comprehend the intent and effect
of the various contract clauses or understand what was
being said at the several meetings. James Mackie, rather,
was' not only meticulously careful to present truthful
-testimony as he saw it, but was demonstrably articulate. I
would suggest that he possesses well above average
intelligence . Thus, I need not consider whether inability to
understand the terms of an agreement of this kind would
void the contracts.
I' believe James Mackie when he testified that he could
not stand the pressures put on him by his relatives when
they discovered that under the contracts they could no
longer' work -'on' every -roofing job Mackie might obtain,15
and that he may have considered liquidating the ' business
to eliminate these problems. But he did not do so. Rather,
James Mackie merely changed the form of the entity,
continuing the 'same business in' substantially the same
form and functioning in virtually the same capacity he had
previously occupied. It was a scheme to avoid the contract.
Respondent's withdrawal of recognition from the Union
and its repudiation of its collective-bargaining contracts, in
these circumstances,- constitute a violation of Section
,8(a)(5) and (1) oftheAct.16
CONCLUSIONS OF LAW
1. Mackie's Roofing and Sheet Metal Co., Inc., alter
ego of Mackie's Roofing and Sheet Metal Works, is an
employer within the meaning of Section 2(2), engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2.,-. Local Union 141, United Slate, Tile and Compos-
ition Roofers, Damp and Waterproof Workers Associa-
tion; is :a labor organization ; within the meaning of Section
2(5) of the Act.
3. -, All commercial and residential roofing and sheet
metal workers employed by Respondent in New Orleans,
Louisiana, exclusive -of all supervisors as defined in the
Act, constitutes a unit appropriate for the purposes of
were taken without the permission of Employer Association or the Union at
a time when such withdrawal was not timely, the-Respondent thereby
violated Sec . 8(a)(5) and (1) of the Act. It is also alleged in the complaint
that James Mackie decided to liquidate Mackie's Works and form Mackie's
Co., for the purpose of withdrawing from the union contracts and
continuing as a nonunion shop, in furtherance of which he gave the physical
assets to his brother, and that such conduct violated Sec. 8(a)(l) of the Act I
see no separate and distinct,element of interference, restraint, and coercion
of the employees in these- acts, even though they may have been with an
unlawful intent, apart from their being considered as part of the withdrawal
of recognition and repudiation of the viable, and subsisting contracts. Nor
do I find the untimely withdrawal from the Employer Association, so called,
an independent violation of Sec. 8(a)(5), and (I) of the Act. I do find that
Respondent did not successfully withdraw from the multiemployer
bargaining unit and continued to be bound by that contract.
collective,bargaining within the meaning of Section 9(b) of
the. Act.
4.- At all times since on or about November 25, 1974,
and continuing to date, the Union has been and is now, the
representative for purposes of collective,bargaining of the
employees in the above appropriate unit by virtue of
Section 9(a) of the Act and a subsisting contract; and is the
exclusive representative of all employees in said unit for
purposes of collective bargaining 'with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
5. At all times since on or about November 25, 1974,
and continuing to date, Respondent and the Union, have
been, and continue to be, bound by the, terms and
conditions of collective-bargaining agreements which
,embody the rates of-pay, wages, hours of employment and
other terms and conditions of employment of all, employees
of Respondent in the unit described in paragraph 3, above.
6. On or about December 17, 1974, Respondent
unilaterally withdrew recognition from the Union and
since that date has refused to recognize the Union, and has
renounced, rejected and refused to abide by the collective-
bargaining agreements existing between them, thereby
violating Section 8(a)(5) of the Act.
7: The aforesaid withdrawal of recognition and rejec-
tion of the 'collective-bargaining agreements has interfered
with, restrained and coerced employees in the exercise of
the -rights,, guaranteed in Section 7, of the Act, and
Respondent has, thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the ,Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the : meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found -that Respondent has engaged in and is
engaging in' unfairlabor practices within the meaning of
Section 8(a)(5) and (1) of the Act, I shall recommend that it
be ordered to cease and desist therefrom and recognize the
Union as the exclusive collective=bargaining representative
of its employees in the aforesaid unit, and honor the said
contractual commitments covering the terms, and condi-
tions of their employment.,
Upon the basis of the foregoing and the entire record, I
make the following recommended:
1s This was not true with respect to cousin Ogden Nash who was referred
to Mackie's Works by the Union during the period the contracts were in
effect, and apparently was qualified to work on commercial contracts.
16 See Helrose Bindery, Inc., 204 NLRB 499, 506 (1973).. Also see R. L
Sweet Lumber Company, 207 NLRB 520 (1973), Edward E. Schultz, d/b/a
Schultz Painting sS Decorating Co., 202 NLRB 111, 115 (1973). The
obligation to bargain is not affected by a change in the legal form of the
employing entity.,See KFC National Management Company, 204 NLRB 630,
632 (1973).
In view of the fact that the repudiation of the contracts for an unlawful
purpose took place while both the commercial and the residential
agreements were still in effect, I need not determine other issues , insinuated
by the circumstances encompassing questions of the scope of severability of
the contract units and the timeliness of withdrawal from any multiemployer
comnutment arising out of the residential agreement.
MACKIE'S ROOFING & SHEET METAL CO 283
ORDER 17
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent Mackie's Roofing
and Sheet Metal Co., Inc, and Mackie's Roofing and
Sheet Metal Works, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively by renouncing,
rejecting, and refusing to abide by the collective-bargaining
agreements existing between them and by withdrawing
recognition from the Umon as the exclusive bargaining
representative of its employees in the following appropriate
unit:
All commercial and residential roofing and sheet metal
workers employed by Respondent in New Orleans,
Louisiana, exclusive of all supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act-
(a) Recognize the Union as the exclusive collective-
bargaining representative of its employees in the aforesaid
unit and honor the existing contractual commitments
covering the terms and conditions of their employment.
(b) Post at its place of business in New Orleans,
Louisiana, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by Respondent's 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15 in writing
within 20 days of the date of this Order what steps have
been taken to comply herewith.
it In the event no exceptions are filed as provided by Sec 102 46 of the 18 In the event that this Order is enforced by a Judgment of a United
Rules and Regulations of the National Labor Relations Board , the findings, States Court of Appeals, the words in the notice reading "Posted by Order
conclusions and recommended Order herein shall, as provided in Sec of the National Labor Relations Board" shall read "Posted Pursuant to a
102 48 of the Rules and Regulations , be adopted by the Board and become Judgment of the United States Court of Appeals Enforcing an Order of the
its findings , conclusions, and Order, and all objections thereto shall be National Labor Relations Board "
deemed waived for all purposes